Ancestry Ireland Unlimited Company v The Information Commissioner & Anor

This is an appeal against the Commissioner’s Decision Notice referenced IC- 249178-D3M8 dated 30 April 2024, pursuant to s57 of the Freedom of Information Act 2000 (“FOIA”), modified for the purposes of the Re-use of Public Sector Information Regulations 2015 (“RPSI”). Reference to “Regulation” in this decision is to a regulation of RPSI, unless stated otherwise.

The subject of the appeal is a request by the Appellant, Ancestry Ireland Unlimited Company (“Ancestry”) pursuant to RPSI for information held by National Records of Scotland (“NRS”). Ancestry says that NRS’s refusal of its request is contrary to RPSI and unlawful.

This judgment is structured as follows:

Ancestry is a private unlimited company registered in the Republic of Ireland. It forms part of a global group of companies, the Ancestry.com group, which provides a platform for genealogical research for people all over the world. In the material before us taken from the group's website, Ancestry claims over 1 billion in revenues (without stating the currency of that revenue or its financial period), that it holds 60 billion records online, and that it records over 25 million people in the world’s largest consumer DNA network.

NRS was created in 2011. It is an administrative construct, created to discharge the legislative responsibilities and functions of two non-ministerial offices: the Registrar General for Scotland and the Keeper of the Records of Scotland, both held by the NRS Chief Executive. NRS is a constituent part of the Scottish Administration, headed by a non-ministerial office holder. NRS is not an integral part of the Scottish Government. For administrative purposes it is classified as a Non-Ministerial Department.

The information held by NRS includes parchment and paper records of Scotland’s people and their lives, dating from the twelfth century, as well as microfilm and digital records. Over recent decades, with the assistance of the Genealogical Society of Utah (“GSU”), the Registrar General and the Keeper of the Records have taken steps to digitise their records to preserve them, and to create digital indexes of, and links to, those records.

NRS maintains an online resource, ScotlandsPeople, by which NRS gives paid public access to, inter alia, the principal records it holds which enable the research of Scottish genealogy, and free access to the digital indexes to those principal records. By its published Archives Academic and Learning/Research Policy, NRS says that these records consist primarily of births/baptisms, marriages, deaths/burials, church records and open census records, and that the site’s primary audience is private genealogists, but that its resources are of potential use in research across a wide variety of historical and other disciplines. The charges to access the information on ScotlandsPeople are set by statute. Those charges have contributed to NRS’s revenues in the average sum of £3.7m per annum over the last 6 years and contribute to the cost of producing and maintaining the information on ScotlandsPeople. NRS makes an increasing proportion of its records available online through ScotlandsPeople every year.

The information requested by Ancestry spans the sixteenth to the twentieth centuries. It consists of approximately 25 million images and 98 million index entries and the hyperlinks from the latter to the former. It makes up 70-80 terabytes of data. We are told that Ancestry has been attempting for between fifteen and twenty years to negotiate commercial terms with NRS to acquire the requested information. For reasons we do not know, those negotiations have proved fruitless.

By letter to NRS dated 7 October 2022, Ancestry wrote in accordance with Regulation 6 to request the re-use of public sector information held by NRS, including that available on ScotlandsPeople (“the Request”).

Ancestry identified the information requested as all digital images of, and digital indices of each of, the following records:

It is common ground between the parties that the Request is intended to encompass the links to those records.

The Request is expressed to be made by Ancestry “on behalf of all entities within the Ancestry.com group from time to time, and their successors and assigns.”

Ancestry requested that re-use of the information be granted on the terms of the Open Government Licence v3 so as not to restrict unnecessarily the way in which the information could be re-used, in accordance with Regulation 12(2). As we understand it the Open Government Licence v3 is effective to grant a worldwide, royalty-free, perpetual, non-exclusive licence to: copy, publish, distribute and transmit the relevant information; adapt the information; and exploit the information commercially and non-commercially for example, by combining it with other information or by including it in the licensee’s own product or application.

Ancestry further requested that the information be provided in an open format and machine-readable format together with the metadata, in accordance with Regulation 11(1)(b).

Ancestry stated, in accordance with Regulation 6(d), that the purpose for which the information was to be re-used was to enable its users to carry out genealogical research as part of Ancestry’s genealogy technology offering by:

Ancestry said that if NRS proposed to charge for Ancestry’s requested re-use, NRS should inform Ancestry of the proposed charges, in accordance with Regulations 15 and 16.

Ancestry indicated that it was agreeable to entering into a commercial arrangement with NRS, and that, if such an arrangement could be agreed, Ancestry would withdraw the Request.

On 2 December 2022, NRS refused the Request. What follows is the material totality of its refusal:

“I have considered your application in relation to the regulations and in particular to regulations:

1.

Regulation 5 (1) (b) – These regulations do not apply to a document where a third party owns relevant intellectual property rights in the document

2.

Regulation 7 (2) – A public sector body which is a library (including a university library), museum or archive holding intellectual property rights in a document may permit re-use of that document.

In accordance with R 9 (1) I am notifying you in writing that your application is refused on the basis of R 5 (1) (b) and R 7 (2) where NRS is exercising discretion as an archive and not permitting re-use of the documents in which NRS holds intellectual property rights.”

On 4 May 2023, Ancestry complained to NRS. In summary, it complained that NRS’s refusal of the Request failed to comply with RPSI in that: (1) the refusal was discriminatory and contrary to the general principle that cultural sector information should be available for use; (2) the information had already been made available for re-use, both by NRS and by others, including an entity called FamilySearch; and (3) that the arrangement with FamilySearch constituted an exclusive arrangement prohibited by regulation 14(1), which must, by now, have ended so that Ancestry should be permitted to re-use all the information covered by NRS’s arrangement with FamilySearch.

We understand that FamilySearch is an organisation run by the Church of Jesus Christ of Latter-day Saints, and was either formerly, or is some emanation of, GSU.

Ancestry also asked NRS to explain which of the information requested was protected by third party intellectual property rights.

Ancestry included an additional request to re-use information: the 1921 Scottish Census Records, on the same terms and for the same purpose as those of the Request of 7 October 2022.

Ancestry repeated its willingness to enter into a commercial arrangement with NRS to re-use the requested information, and to withdraw its complaint if such an arrangement could be agreed.

On 21 June 2023, NRS rejected Ancestry's complaint. In summary, NRS: denied that any of its arrangements with other parties constituted exclusive arrangements; stated that the existence of third party arrangements did not oblige NRS to make the information available to Ancestry under RPSI; and stated that the circumstances in which NRS had entered into those arrangements with third parties were different from those relating to the Request such that NRS’s different treatment of those third parties and the Request was justifiable.

NRS identified the information whose intellectual property was held by third parties and to which, consequently, RPSI did not apply. We do not understand that there is any dispute between the parties that RPSI do not apply to that information.

NRS identified an additional justification for refusal of the Request. It said that the purpose for which Ancestry proposed to re-use the information was not a “re-use” of the information within the meaning of Regulation 4(1) RPSI.

To that end, NRS explained that:

On 2 August 2023, Ancestry complained to the Commissioner in the form of “Legal submissions” setting out its position. The Commissioner invited NRS to revisit the Request. NRS did so, and maintained its position as set out in its letter to Ancestry of 21 June 2023. Ancestry submitted additional arguments and items of clarification to the Commissioner.

On 27 February 2024, the Commissioner told NRS that it would assist his deliberations if NRS could explain in detail the specific measures it had taken in relation to the implementation of the Re-use of Public Sector Information Regulations 2005 (now revoked), and the implementation of RPSI, that is to say the 2015 Regulations, in both cases in relation to Regulation 12 (conditions on re-use), Regulation 13 (non-discrimination), and, in particular, Regulation 14 (prohibition of exclusive arrangements).

On 19 March 2024, NRS responded to the Commissioner as follows, in summary:

During the Commissioner’s investigation NRS explained that it had discussed with Ancestry the possibility of a staged approach to non-exclusive licensing arrangements, which it remained willing to discuss with Ancestry, but which RPSI did not require it to enter into. Ancestry responded to the effect that NRS had only been willing to discuss licensing a very limited proportion of the requested information.

By the Decision Notice, the Commissioner decided that NRS was correct to refuse the Request under Regulations 4(1), 5(1)(b) and 7(2).

The Commissioner’s explanation of his decision was limited to this single paragraph:

“26.

Having carefully considered the detailed submissions of the complainant and the equally detailed responses of the NRS, and having reviewed the websites, mentioned in the complaint’s internal review request, the Commissioner is satisfied that NRS was correct to apply regulations 4(1), 5(1)(b) and 7(2) to the requested information.”

We record here our concern at the absence of any substantive reasoning given by the Commissioner for his decision. It is not possible to detect what that reasoning might have been from the limited correspondence exchanged between the Commissioner, Ancestry and NRS during the Commissioner’s investigation.

By Notice of Appeal dated 28 May 2024, Ancestry appealed against the Commissioner’s decision.

Ancestry submits that NRS’s refusal of the Request was unlawful for three reasons:

By a Response dated 4 July 2024, the Commissioner resists the appeal on the following bases:

By a Response dated 29 August 2024, NRS resists the appeal on the following bases:

By a Reply dated 12 September 2024, Ancestry replies as follows:

By its Grounds of Appeal dated 28 May 2024, Ancestry invites the Tribunal to allow the appeal and substitute a Decision Notice, and a supporting enforcement notice to the effect that:

However, by a Note on Relief dated 14 January 2025, handed to the Tribunal at the hearing, Ancestry now seeks a substituted decision notice and a supporting enforcement notice, which should require NRS to grant Ancestry a licence to re-use the requested information, which licence must comply with the terms of RPSI including by:

With the parties’ agreement, the Tribunal directed at the hearing that the issue of relief should be the subject of separate submissions, if appropriate, after promulgation of this decision addressing only the principal issues in the appeal.

We read two bundles of documents and an agreed bundle of authorities. We also read detailed skeleton arguments from all parties. The hearing took place over two days. It was not possible to accommodate complete oral closing submissions from all parties at the hearing. Accordingly, the Tribunal directed the filing of written closing submissions from all parties after the hearing.

On 24 October 2024, the parties had agreed the following list of principal issues:

In the parties’ skeleton arguments filed in early January 2025, throughout the hearing, and then in written submissions filed after the hearing in January, April and May 2025, certain of these issues took on a different emphasis, and new issues and arguments were identified. The list is not, therefore, properly representative of the issues which now require determination by the Tribunal, and for reasons which will become apparent, it includes some issues which we consider are not for determination by the Tribunal.

RPSI came into force on 18 July 2015. RPSI implement amendments by Directive 2013/37/EC (“the Amending Directive”) to Directive 2003/98/EC (“the 2003 Directive”). The amended Directive was adopted on 17 July 2013 (“the Amended 2003 Directive”).

RPSI do not require public sector information to be made accessible to the public. Rather they provide that a public sector body must permit re-use (or, in the case of a library, museum or archive, may permit re-use) of a document where the document:

It is not in dispute that the requested information in this case falls within Regulation 5(2)(c); it is publicly available on ScotlandsPeople or on NRS’s premises.

RPSI defines a “document” as any information recorded in any form, including any part of such information, whether in writing or stored in electronic form or as a sound, visual or audio-visual recording, other than a computer program.

Regulation 4 provides as follows:

“Re-use of documents

4.— (1) Subject to paragraph (2), re-use means the use by a person of a document held by a public sector body for a purpose other than the initial purpose within that public sector body's public task for which the document was produced.

(2)

Re-use shall not include—

(a)

the transfer for use of a document within a public sector body for the purpose of carrying out its own public task; or

(b)

the transfer for use of a document from one public sector body to another for the purpose of either public sector body carrying out its public task.”

Regulation 6 provides that a person who wishes to make a request must ensure that the request is in writing, states the name of the applicant and an address for correspondence, specifies the documents requested, and states the purpose for which the document is to be re-used.

Regulation 7 provides as follows:

“Permitting re-use

7.— (1) Subject to paragraph (2), a public sector body must permit re-use where it receives a request made in accordance with regulation 6.

(2)

A public sector body which is a library (including a university library), museum or archive holding intellectual property rights in a document may permit re-use of that document.

(3)

Where a public sector body permits re-use, it must do so in accordance with regulations 11 to 16.”

RPSI do not define what is meant by a public sector body’s public task.

Regulation 8 prescribes when and how a public sector body must respond to a request for re-use.

Regulation 9 provides for notification of refusal of a request for re-use, including the requirement to notify an applicant in writing for the reasons for refusal.

Regulation 10 provides that, where possible, a public sector body must ensure that the procedure for processing a request for re-use in accordance with RPSI is capable of being carried out by electronic means.

Regulation 11 provides for the format in which a document should be made available to an applicant. Regulation 11(4)(a) provides that nothing in RPSI obliges a public sector body to create or adapt a document or provide an extract from it in order to comply with a request for re-use where to do so would involve disproportionate effort.

Regulation 12 provides that a public sector body may impose conditions on re-use, where appropriate through a licence, but that where conditions are imposed, they must not unnecessarily restrict the way in which a document can be re-used or competition.

Regulation 13(1) provides that a condition imposed under Regulation 12 must not discriminate between applicants who make a request for re-use for comparable purposes. Regulation 13(2) provides that if a public sector body which holds a document wishes to re-use the document for activities which fall outside the scope of its public task, the same conditions must apply to that re-use as would apply to re-use by any other applicant for comparable purposes.

Regulation 14 prohibits a public sector body from entering into an exclusive arrangement with any person, subject to being entitled to do so, where necessary for the provision of a service in the public interest (Regulation 14(2)), and in relation to the digitisation of cultural resources (Regulation 14(6)).

Regulation 15(1) provides that a public sector body may charge for permitting re-use. Regulation 15(2) provides that any charge for re-use must be limited to the marginal costs incurred in respect of the reproduction, provision and dissemination of documents. Regulation 15(2) does not apply to:

In any case where Regulation 15(3)(a) or (b) applies, Regulation 15(5) provides that the public sector body must calculate the total charge in relation to a document in accordance with Regulation 15(6), which provides that the total charge shall not exceed the sum of direct costs, a reasonable apportionment of indirect and overhead costs attributable to chargeable activity and a reasonable return on investment.

In any case where Regulation 15(3)(c) applies, the total income of the public sector body from supplying and permitting re-use of documents over the appropriate accounting period must not exceed the aggregate of the amounts calculated in accordance with Regulation 15(8), which provides that for each document the amount is the sum of direct costs, a reasonable apportionment of indirect and overhead costs attributable to chargeable activity and a reasonable return on investment.

Regulation 15(9) provides that any charges for re-use must, so far as is reasonably practicable, be calculated in accordance with the accounting principles applicable to the public sector body from time to time.

Regulation 16 RPSI provides for the information to be published by a public sector body in relation to charges. In summary:

Save in relation to the issue of a public sector body charging for permitting re-use (provided for by Regulation 15), the enforcement and appeals provisions of the Freedom of Information Act 2000 apply for the purposes of the RPSI with relevant modifications. We address those modifications below.

A brief rehearsal of the evolution of the Amended 2003 Directive is instructive.

In June 2002, the European Commission published a proposal for a Directive on the re-use and commercial exploitation of public sector information. The resulting 2003 Directive was adopted on 17 November 2003. It was implemented in the UK with effect from 1 July 2005 by the Re-use of Public Sector Information Regulations 2005.

The Recitals to the 2003 Directive recognised that:

The Recitals further recognised that there were considerable differences in the rules and practices in the different Member States relating to how such information might be exploited, which was a barrier to the realisation of its full potential. To address that, and achieve a measure of harmonisation, the 2003 Directive established a minimum set of rules governing re-use of such information, but libraries, museums and archives were left out of scope [Art. 2 (f)].

A decade later, Directive 2013/37/EU (“the Amending Directive”) recognised that “Since the first set of rules on re-use of public sector information was adopted in 2003, the amount of data in the world, including public data, has increased exponentially and new types of data are being generated and collected. In parallel, we are witnessing a continuous evolution in technologies for analysis, exploitation and processing of data. This rapid technological evolution makes it possible to create new services and new applications, which are built upon the use, aggregation or combination of data. The rules adopted in 2003 no longer keep pace with these rapid changes and as a result the economic and social opportunities offered by re-use of public data risk being missed.” [Recital 5].

The Amending Directive set down a clear obligation for Member States to make all documents re-usable, and extended the scope of the 2003 Directive to libraries, including university libraries, museums and archives.

In this regard, the Recitals to the Amending Directive provide relevantly as follows:

The Amended 2003 Directive:

Chapter III of the Amended 2003 Directive addresses the formats of documents made available for re-use [Art. 5], the principles governing charging [Art. 6], transparency [Art. 7], licences [Art. 8.] and practical arrangements [Art. 9]. Chapter IV provides that any applicable conditions for re-use shall be non-discriminatory for comparable categories of re-use [Art. 10], exclusive arrangements are prohibited save where an exclusive right is necessary for the provision of a service in the public interest, the reason for it is subject to regular review, and exclusive arrangements entered into after the Amended 2003 Directive came into force shall be transparent and made public [Art. 11].

Ancestry called evidence from Mr Quinton Atkinson, Senior Director of Global Content Acquisition for Ancestry. By his witness statement he addressed in detail the functionality and services of Ancestry’s genealogical research offering, seeking to illustrate significant differences between those and that which is available on ScotlandsPeople. Mr Atkinson also sought to demonstrate that NRS has already granted re-use to another entity, GSU, now known as FamilySearch, and operated by the Church of Jesus Christ of Latter-day Saints.

Mr Atkinson accepted under cross-examination that the scope of the Request includes digitised primary information, previously held in hard copy form; an index consisting of a very large database of keywords for searches based on the content of the primary information; and hyperlinks to the images of the primary information. The Request necessarily excludes information generated after a cut-off period established for data protection purposes to protect the privacy of individuals whose personal data is contained in any of the categories of information described.

Mr Atkinson accepted that no-one other than NRS has the full set of information which is the subject of the Request, and that, viewed as a totality, it is a unique resource. He accepted that while Ancestry already holds images of some of the primary information, for which it has compiled its own indexes, what Ancestry seeks by the Request is “the whole package”.

Mr Atkinson accepted that the Request is for a valuable resource, unique to NRS, providing significant revenue to NRS, so that Ancestry might exploit it commercially, publishing the information on sites across its global group.

Mr Atkinson appeared unable to identify which companies in the Ancestry group would profit from provision of the requested information, explaining that interest in the records held by NRS resides wherever in the world the Scottish diaspora falls, including, but not limited to, Australia, the USA, and the Commonwealth countries. He accepted, however, that an Ancestry company incorporated in the USA stands behind the Request.

When asked whether he accepted that provision of the information in scope of the Request would require its disaggregation from the wider body of genealogical information held by NRS, Mr Atkinson said that would depend upon how the data was organised; he did not know the full workings of the system but he accepted that there would be a “level of work” to achieve disaggregation. By reference to other archive records obtained by Ancestry, he surmised that disaggregation would be achievable without third-party technical assistance and that Ancestry was open to the format in which the information might be provided. He said that Ancestry has entered into agreements to obtain information from over 300 archives in Europe, and while logistical challenges may arise, none of them are insurmountable, and transfer can ultimately be achieved without complication.

Mr Atkinson accepted that Ancestry had been, and remains, open to considering what fees Ancestry might pay to NRS to obtain the requested information. He recognised that NRS and its antecedent bodies have incurred a historical cost in compiling the information to date, and would incur cost in effecting any transfer, although the latter cost is unknown or at least not yet fully calculated. He accepted that if the information was transferred to Ancestry, then a person accessing it through Ancestry’s platform would not pay the statutory charge currently payable by a person accessing the material on ScotlandsPeople, but indicated that in that event Ancestry could make a direct payment to NRS, although he did not indicate what that payment would cover or by reference to what considerations it might be calculated. He said that of the 300 archives in Europe from which Ancestry had obtained information, more than half have raised a charge, for example to pay for the duplication of microfilm or hard drives or to involve experts on any particularly challenging technical issue. Three quarters of those archives have asked for a reasonable return on their investment. Ancestry has 60 billion records on its website; it is well placed to assist in procuring the information it seeks.

Mr Atkinson explained that Ancestry already has multiple agreements in place with The National Archives to purchase primary information in images held by them, and The National Archives undertake digitalisation of the images themselves or in partnership with Ancestry.

In response to Mr Atkinson’s evidence on this point at the hearing, NRS says in its written closing submissions that Ancestry only has an index of the historical data relating to births, deaths and marriages in England and Wales but not the images of those records; it does have access to images of the census records but in part in return for Ancestry contributing to the digitisation of records, and subject to payment of a royalty. We are unable, and do not need, to determine any dispute between Ancestry and NRS on this particular point.

NRS called two witnesses. The first was Dr Janet Egdell, who was, at the time she made her witness statement, the Interim Chief Executive of NRS, held the office of Registrar General and was authorised to carry out the office of Keeper of the Records of Scotland. The second was Ms Linda Sinclair, Director of Corporate Services and Accountable Officer at NRS.

Dr Egdell’s statement addressed the reasons for NRS’s refusal of the Request. She explained that the Request was refused after due consideration, and that the considerations which led to the discretion being exercised were as follows:

Ms Sinclair’s witness statement addressed NRS’s functions and governance, a comparison between ScotlandsPeople and Ancestry’s offering, the level and type of work required to implement the Request, and a number of considerations around compliance with the Request including commercial, licensing, risk, compliance, legal and financial matters.

We were shown NRS’s audited financial statements for the year ended 31 March 2024. Those accounts were presented by Ms Sinclair as Accountable Officer and audited by Grant Thornton UK LLP. They were prepared on a going concern basis in accordance with the principles and disclosure requirements set out in the Financial Reporting Manual (FReM) 2023-2024 published by HM Treasury. The statements indicate that in 2023-2024, NRS had 993,000 users on ScotlandsPeople (1,484,852 in 2022-2023), resulting in a total of 7,094,000 sessions and 85,000,000 page views, and that NRS had added around 300,000 new images to the records available on ScotlandsPeople (385,000 in 2022-2023).

Ms Sinclair explained that NRS is funded by the Scottish Government and by the income generated from ScotlandsPeople, the latter intended to be reinvested in the delivery of public services. She demonstrated by reference to NRS’s 31 March 2024 financial statements that in that financial period, NRS had suffered a shortfall of £0.6 million; the difference between income of £4.361 million deriving from charges set by secondary legislation for accessing the information on ScotlandsPeople, and the operational cost of ScotlandsPeople in the sum of £4.994 million.

The comparable figures for the year ended 31 March 2023 were income received of £5.129 million and operational cost of £4.782 million, delivering a surplus of £347,000.

Ms Sinclair explained that there are multiple overhead costs associated with ScotlandsPeople, not all of which are evident from the accounts as presented.

By her witness statement, Ms Sinclair explained that the income derived from ScotlandsPeople is re-invested in the delivery of public services, contributing to the NRS budget, enabling the Registrar General and the Keeper of the Records to fulfil their public functions. The Scottish Government also funds NRS. The published budget for NRS for 2024/2025 is £34.5m. In her oral evidence, Ms Sinclair accepted that the prospect of re-use had not, to date, been addressed in NRS’s budgetary considerations.

By her witness statement, Ms Sinclair further explained that access by Ancestry to NRS’s records “for free”, without paying the statutory charges approved by Parliament, and for Ancestry's commercial benefit, would be at a significant cost to NRS and to the public purse in Scotland. That would have a negative impact on the public service that NRS could provide by way of loss of supporting income.

By her witness statement, Ms Sinclair said that she has been told by NRS’s Chief Finance Officer that “the value of that information [which we take to mean the requested information], in terms of potential loss of income to NRS, is estimated up to £3.7m per year, based on an average over the last 6 financial years.” In her oral evidence, Ms Sinclair explained that she was concerned about loss of income on an ongoing basis.

Ms Sinclair’s evidence on the practical and resource impacts of acceding to the Request appears to have been based in large part on her understanding from colleagues as to what would be entailed. The result of that, in our view, was that there was not an opportunity properly to test this part of NRS's evidence.

Ms Sinclair explained that granting re-use would require a significant investment of money, thought-leadership, human resource and time: a full extract, transform and load process from the entire suite of NRS’s databases would be required. Her understanding was that:

Ms Sinclair explained that NRS is concerned that if it were to accede to the Request, NRS may then have to repeat the exercise, either upon each annual release by NRS of new records, or, bearing in mind the requirement of Regulation 13 (non-discrimination), that once NRS has granted re-use, it must then treat economic operators equally and without discrimination and act in a transparent and proportionate manner in response to requests by other, similar businesses, entailing the construction of an ongoing transfer service at significant cost to itself and the public purse. Moreover, NRS is concerned that Ancestry or other businesses may seek recourse to NRS to make any necessary index or image corrections.

Ms Sinclair’s evidence was that the scope for future requests for re-use could be vast, noting that there are 1800 organisations registered with the Community Archive and Heritage Group of the Archives and Records Association (UK and Ireland), 32 local authorities and trusts in Scotland and 10-15 large commercial genealogy website providers. Compliance with other requests would entail: the initial transfer of the information; ensuring, where necessary, the ongoing application of any relevant security and information governance standards to the information; the potential for enquiries back to NRS in relation to correction or amendment of the information; and establishing appropriate charges under RPSI to cover a reasonable return on investment, direct, indirect and overhead costs.

Ms Sinclair’s evidence was that all these matters would be likely adversely to affect NRS’s ability to perform its functions, including: providing facilities for research; making further public records digitally available; maintaining security control over the information (currently, NRS is able to spot suspicious patterns of searches by criminals intent on identity theft); ensuring equity of access to customers who may not otherwise be able to afford to view the records; increasing sustainable public access to the information; providing advice to custodians of records outwith NRS to facilitate public access to such records; developing archival and record management practice in Scotland; and growing digital access to the Scottish diaspora.

Ms Sinclair’s evidence was that overall, the impact on NRS of granting the Request would be “catastrophic, as defined in accountancy standards in the longer term, with financial sustainability being a significant risk, which jeopardises NRS’ ability to continue as a going concern.”

Regulation 9(1) provides that where a public sector body refuses a request for re-use, it must notify the applicant in writing of the reasons for refusal. By its initial refusal of the Request on 2 December 2022, NRS did not say why it was refusing the Request. It said that it was exercising its discretion to refuse the Request on the basis of Regulation 7(2) RPSI but that is not, of itself, any meaningful reason. Nor did NRS indicate that it did not consider that Ancestry’s proposed use constituted re-use within the meaning of RPSI.

It was only on 21 June 2023, when responding to Ancestry’s formal complaint, that NRS indicated that Ancestry’s proposed use did not constitute re-use within the meaning of RPSI. In so doing, NRS simply referred to NRS’s public task and said that Ancestry’s stated purpose was not a purpose other than the initial purpose within NRS’s public task for which the requested information was produced. NRS did not identify what it considered to be the initial purpose of production of the requested information.

It was only on 29 August 2024 that NRS, by its Response to the appeal, identified what it contends is the initial purpose of production of the requested information: “the initial purpose for which each digital item of “Requested Information” was produced by NRS was to preserve the physical document and the information contained within it, and to make the digital image publicly available, a purpose which falls clearly within its stated public task.” [19].

Dr Egdell said in her witness statement dated 18 October 2024, addressing NRS’s reasons for refusing the Request, that “We also considered the enormous scale of the request and the impact on NRS of providing the information through an alternative route to ScotlandsPeople. Allowing re-use would result in additional cost both in financial and human resource for NRS. This was expected to have a severe impact on the income stream of NRS and its ongoing ability to carry out its public function.” That is the extent of Dr Egdell’s account of those considerations as at 2 December 2022, the date of refusal.

Ms Sinclair’s witness statement dated 16 October 2024 provided a more detailed description of the work which would or might be involved in acceding to the Request but only in generic terms, and not by reference to any specific consideration of those matters in December 2022.

Neither Dr Egdell nor Ms Sinclair participated in the initial decision to refuse the Request. We were not shown any material generated within NRS contemporaneous with its refusal of the Request to indicate its reasons for exercising its discretion to refuse. We are therefore reliant on evidence provided by persons who did not themselves participate in NRS’s decision to refuse the Request, and which has been prepared for the purposes of responding to the appeal, significantly after the date of refusal. We acknowledge, nonetheless, that NRS’s evidence as to the possible financial and operational consequences of acceding to the Request is offered by senior personnel who are closely familiar with NRS’s strategy and operations, albeit they are reliant in their explanation of certain issues on information from colleagues.

Having considered all the written and oral evidence, we find that NRS’s core reasons for refusing the Request rested in two broad categories of substantive concern to NRS: financial and operational, with frequent touchpoints or overlap between the two.

We do not recognise “catastrophic” as a term of generally accepted accounting practice. There was no evidence before us that NRS had undertaken any modelling which forecast such a damaging effect from acceding to the Request. We consider the reference to catastrophe to be hyperbole.

Indeed, there was no evidence of NRS undertaking any modelling forecasts at all. The account provided by NRS’s Chief Finance Officer to Ms Sinclair speculates an annual loss of income of “up to” the total annual average of income over the last 6 financial years. All that that says is that such loss could be anywhere between nil and the total. Absent any identification of the annual average income derived from that portion of information made accessible by NRS on ScotlandsPeople or otherwise which Ancestry now seeks, it does not appear possible to attempt any meaningful assessment of the risk and quantum of lost income adverted to.

We accept that the revenues derived from users accessing ScotlandsPeople currently make a substantial contribution towards the ongoing cost of operating ScotlandsPeople as part of NRS’s core functions. We find that a significant part of NRS’s reason for refusing the Request was an immediate concern that conversion of users of ScotlandsPeople to Ancestry’s customer base would be likely substantially to reduce those revenues with the result that NRS may then have to re-assess its capital and revenue budgets for negotiation with the Scottish Government.

The impression we have formed from the totality of NRS’s evidence is that NRS posits the question of re-use as a binary one, and starkly so. On the one hand, acceding to the Request is thought likely to give rise to a potentially significant, albeit unquantified, reduction in revenues together with a potentially substantial diversion of financial and operational resource. On the other, refusing the Request is thought certain to allow retention of the full benefit of the requested information as an income-earning asset on an ongoing basis without any impact on budgeted income or need for diversion of resource.

Ancestry is critical of NRS for not having undertaken any detailed assessment of the impact of acceding to the Request. Ms Sinclair’s response to that was that to achieve any kind of detailed assessment of either the planning necessary to accede to the Request or the impact on NRS of permitting re-use, which itself would entail consideration of revenue streams decades ahead, would require the diversion of scarce resources.

Ms Sinclair’s evidence was that arranging re-use across the full remit of those organisations who might request permission to re-use would entail a change to NRS’s entire business model which has been operated for decades; there would be significant transitional, technical and logistical costs associated with that.

When it was put to Ms Sinclair that NRS’s concerns might fall away in the face of a charging structure which held NRS harmless, she explained that scoping that issue in itself would be a complex piece, requiring full planning with consideration of a 20-40 year period ahead to address sustainability; that sort of up-front investment does not come for free. We understood her to say that she did not, in fact, know whether there had been discussions within NRS as to whether or how its business model might be re-worked in this context.

There is no evidence before us as to what consideration NRS gave, at the time of refusal of the Request, as to how the short-term or long-term financial impacts of acceding to the Request might be compensated for or mitigated by way of charges to cover direct costs, a reasonable apportionment of indirect and overhead costs, or a reasonable return on investment, as provided for by RPSI, including in this last regard any recognition that it may be open to an archive may consider the prices charged by the private sector when calculating a reasonable return on investment (Recital 23 to the Amending Directive).

NRS says that Ancestry sought the requested information on terms provided for by the Open Government Licence v3, that is to say, on a “royalty-free” basis.

In fact, the Request sought a grant on such terms “so as not to restrict unnecessarily the way in which the Requested Information can be re-used in accordance with regulation 12(2) of the RPSI.” That was a reference to RPSI’s provision by Regulation 12(2) that if conditions were to be imposed, they should not necessarily restrict (a) the way in which a document can be used or (b) competition.

The Request was not a request to obtain the requested information for free. It expressly invited NRS’s proposals for charging: “If you propose to charge for our requested re-use, please let us know the charges which you propose in accordance with regulations 15 and 16 of the RPSI.” We acknowledge that that is not an offer to pay a charge, even in principle, but, absent any visibility by us as to the terms of many years of negotiations between the parties, we do not see that Ancestry could sensibly have articulated a formal offer at that stage, or, indeed, that NRS was in a position to make proposals absent any detailed analysis by NRS of what work might be involved.

Ms Sinclair puts the position thus in her witness statement: “The appellant seeks to obtain a national asset belonging to the people in Scotland, for no cost to the appellant but at cost to the Scottish taxpayer and NRS’ operations.” That does not seem to us to be a fair characterisation of the position. We accept that acceding to the Request will likely give rise to certain, and possibly not insignificant, costs but it seems to us that the charging provisions in RPSI are intended precisely to accommodate that prospect. We find that it is more likely than not that NRS has not given that any substantive consideration.

Whether the Request is a request for re-use within the meaning of Regulation 4(1), turns on whether Ancestry’s proposed use is for a purpose other than the initial purpose within NRS’s public task for which the requested information was produced.

Ancestry submits that the original records were initially produced to support the efficient running of the state and the preservation of its history, and the digitisation of those records, including the indexes, was undertaken for the same reason. The purpose was what Ancestry describes as “official in nature”.

We have not identified what the Commissioner says was the initial purpose of production of the requested information. He simply submits that the issue is of limited significance in circumstances where the provision of the information by ScotlandsPeople is within NRS’s public task.

NRS submits that the initial purpose for which each digital, requested document was produced by NRS was to preserve the physical document and the information contained within it, and to make the digital image, that is to say, a copy of it, publicly available.

NRS extended that submission in its closing written submissions by explaining that the information held in the hands of NRS’s antecedent bodies and offices has historically been made available to the public, indeed that various legislation has provided for that to be the case. By way of illustration of that point, NRS referred us to three examples.

First, in relation to the pre-statutory registers which are the subject of the Request, that is to say, the old parochial registers of the Church of Scotland, 1553-1854:

In relation to those records, NRS submits that:

Second, in relation to the statutory registers, NRS explained that they were kept in duplicate with one copy being sent annually to the Registrar General. Registrars were to prepare indexes and the records held by them were accessible on payment of a fee.

In relation to those registers, NRS submits that:

Third, in relation to the records held by the Keeper of the Records of Scotland, NRS has explained that until 1948 there was a single officeholder known as the Keeper of the Registers and Records of Scotland but that that role was divided by s1 of the Public Registers and Records (Scotland) Act 1948, and that certain classes of those public records were accessible free of charge for approved historical, antiquarian and literary searches.

From these three examples, NRS seeks to draw a single, critical proposition: that the initial purpose for which the information was produced included making them available for search by any person.

We accept that the specific examples just described show that the relevant bodies have long been required to afford, or as a matter of practice have afforded, access to that information, requiring the production of indexes for that purpose. However, that, of itself, does not indicate that either the primary information, in its original or digitised form, or the indexes and links to it, were produced to facilitate genealogical research.

We have considered the position by taking a birth certificate as an example. Ancestry submits that the certificate is not created with a view to publication on ScotlandsPeople for a charge. We agree. The initial purpose of its production is to record the existence of the person born to enable their engagement with the state and the courts, which necessarily entails its preservation and accessibility at least for the life of the person born. At the time the certificate is produced there may be an ancillary legislative and/or administrative obligation to preserve it and make it accessible by any person, in due course, subject to conditions and protections, and to create an appropriate index for those purposes. As time passes, the body which holds the certificate may then take steps to preserve it, for example, by digitization of the image of it, and to create further indexes and links to enable access to it in a wider archive of official record.

As it is, to determine the issue before us now, we do not consider that we need to reach into the recesses of history to identify the initial purpose or purposes of production of the primary information in its original, discrete parts, for example, the initial purpose of producing a hard copy record that Person X was born in village Y on date Z.

Instead, we find that it is sufficient and appropriate to take a holistic and realistic view of the requested information as articulated by the Request: it is the subset of a working archive comprising multiple items of digitised historical information and, importantly, the means to search for that information in the form of the indexes and the links. While its component parts are the product of multiple legislative and administrative functions discharged over centuries, the production of the archive is itself something different.

We find that the initial purpose of the archive’s production was to enable the preservation of the primary information, and its ordering and identification, in a searchable, official record suitable for the modern day. It takes the form of a digital archive. The record has enabled the creation of a facility for genealogical research, but such a facility was not the purpose of its production; it was not produced with the direct and specific intention of facilitating private genealogical research as an exercise or study per se. It was produced for official purposes. The use which may be made of a product, including by way of a by-product, is not indicative, and certainly not determinative, of the purpose of its production, even if ultimately such use may become the predominant or even only use which is made of it.

It is for each public sector body to identify its public task for the purposes of RPSI. Neither RPSI nor, as we have already noted, the Directive defines a public task.

NRS’s public task, articulated for the purposes of RPSI, appears in an undated document called “Statement of Public Task” which provides as follows:

“The public task of NRS is to collect, preserve and produce information about Scotland’s people and history and make it available to inform current and future generations. This encompasses the archival functions of the Keeper of the Records of Scotland, the registration and statistical functions of the Registrar General for Scotland and the tartan-related functions for the Keeper of the Scottish Register of Tartans.”

The Statement of Public Task goes on to say that NRS’s public task under RPSI is defined by:

“... its duties under the following legislation as well as a non-ministerial government department:

- Census Act 1920 and Statistics and Registration Service Act 2007

- Registration of Births, Death and Marriages (Scotland) Act 1965 and Local Electoral Administration and Registration Services (Scotland) Act 2006

- Public Records (Scotland) Act 1937, Public Registers and Records (Scotland) Act 1948, Public Records Act 1967, and Public Records (Scotland) Act 2011

- Scottish Register of Tartans Act 2008

Within its public task NRS produces, holds, and uses information:

• in any and all formats and media

• in physical and digital form, both online and offline

• on NRS’ premises and externally (i.e. documents held by local authorities under charge and superintendence of the Keeper of the Records of Scotland as well as registration data held by local registrar offices)."

Although the Statement of Public Task before us is undated, it says that it is reviewed on an annual basis and will be updated again in 2020. It is described in the index to the hearing bundle as having been published in 2019. We do not know whether the wording of the Statement of Public Task at the time of the Request, 7 October 2022, was the same. We assume that it was.

We note that the Statement of Public Task opens by saying that “Under [RPSI], public bodies, including National Records Scotland are obliged to publish a statement describing their public task, or core functions”. In fact, we cannot see any such requirement in RPSI.

In her witness statement, Dr Egdell said that the full functions of NRS are detailed in a Framework Document. The Framework Document shown to us was dated June 2022, thus post-dating the Statement of Public Task by three years. It describes itself as setting out the broad framework within which NRS will operate and defines key roles and responsibilities which underpin the relationship between the organisation and the Scottish Government.

The Framework Document describes NRS’s purpose as “to collect, preserve and produce information about Scotland’s people and history, and make it available to inform present and future generations and for the benefit of the nation.” This expressed purpose differs in two ways from the Statement of Public Task: (1) by the insertion of a comma, it splits the exercise of collecting, preserving and producing information from the exercise of making it available to inform present and future generations, and (2) adds the words “and for the benefit of the nation” in that same clause. We do not know when or why those last words were included in the description of NRS’s purpose.

The Framework Document lists NRS’s functions as follows:

The Statement of Public Task does not replicate or refer to all the NRS functions set out in the Framework Document, presumably because not all of them are relevant to the issue of re-use of public sector information.

Although neither NRS nor the Statement of Public Task, which is a construct of RPSI, existed at a time when the requested information was produced, in our view the public task is properly to be read back to encompass the public tasks of the various antecedent bodies and offices now subsumed into NRS at the time the requested information was initially produced by them: the activities referenced in the Statement of Public Task are expressly said to encompass the archival functions of the Keeper of the Records of Scotland and the registration and statistical functions of the Registrar General for Scotland. Activities within the public task also include the production, holding and use of information held, in any and all formats and media; and in physical and digital form, both online and offline.

We are satisfied that the initial purpose of production of the requested information was within NRS’s public task.

We find that Ancestry’s proposed use of the requested information is a re-use within the meaning of RPSI.

By the Request, Ancestry said that it required the information “to enable our users to carry out genealogical research as part of our genealogy technology offering”. Facilitating the conduct of genealogical research is, in our view, something clearly “other than”, that is to say, different from, the initial purpose of production of the requested information within NRS’s public task, which we have found to be the preservation of the primary information, and its ordering and identification, in a searchable, official record suitable for the modern day, in the form of an archive.

If we are wrong in that conclusion, and the initial purpose for which the requested information was produced was the facilitation of genealogical research by, or by a means such as, ScotlandsPeople, we have considered whether Ancestry’s proposed use can properly be said to be for a purpose “other than”, that is to say, different from, that.

The Request explained the means by which Ancestry’s users would be able to carry out their genealogical research: creating a consolidated dataset of the information, using the information within Ancestry’s proprietary software, and combining the information with Ancestry’s DNA database.

By his witness statement, Mr Atkinson sought to distinguish Ancestry’s offering from that of ScotlandsPeople. He identified what he described as Ancestry’s superior search and browse functionality, specifically by reference to Ancestry’s superior indexes. He described the indexes as detailed digital transcriptions of multiple data fields from a record, their creation representing a significant financial investment by Ancestry, and used by Ancestry’s proprietary search engine to enable users to search the digital images published by Ancestry to find information within them. He explained that the indexes on ScotlandsPeople were more limited in terms of the number of fields, thus limiting the indexes’ value within the search function. Ancestry would propose to augment ScotlandsPeople’s indexes to add further fields, for example adding additional datapoints that can be ascertained from the record to assist customers in searching the record, for example by calculating an estimate birth year if an age is included in the record.

Mr Atkinson explained that Ancestry’s global search functionality makes for an efficient means for a user to build the story of their ancestor’s lives, for example, a user can search for the name of an ancestor and obtain their birth record, together with census records, passenger lists and military records relating to the same individual, thus apparently being able to confirm not only when and where their ancestor was born but where they lived at different times, tracing their migration from one country to another and discovering information about their military service. He said that this was not possible on ScotlandsPeople, which is in any event limited to select Scottish records.

We do not read this account of Ancestry’s superior indexes, or its capacity to create superior indexes, as indicating any purpose behind Ancestry’s proposed use of the requested information which would be different from the facilitation of genealogical research enabled by NRS, were that to have been the initial purpose of production of such information. The account demonstrates simply that Ancestry appears to have a superior search function to that available on ScotlandsPeople, encompassing potentially more data from global sources, whereas the data in the requested information is, self-evidently, necessarily limited to Scotland.

Mr Atkinson went on to explain what he described as “additional functionalities/services offered by Ancestry” and “customer-centric collaboration innovations to enhance users’ access to the 60 billion records available online”, none of which are available on ScotlandsPeople. He says that “As can be seen from these functionalities, Ancestry's services encourage and enable collaborative creation of value by and for all users – i.e. the more users there are and the more records they are able to access and identify, the more valuable Ancestry becomes as a resource to each user. This is not the case with ScotlandsPeople.”

The additional functionalities offered include, in summary:

Having considered carefully these functionalities and services, including by close reference to the examples exhibited to Mr Atkinson’s witness statement which compared Ancestry’s and ScotlandsPeople’s search functions, we are of the view that the search and browse functionalities described relate to access to the underlying information, not to the purpose of the use of such information. The additional functionalities relate to users undertaking activities independent of any re-use of the underlying information, opening up new lines of enquiry and enabling the construction of a larger dataset than would be possible by reference to the information requested alone. Some or all of these may afford new ways to access the primary information, but fundamentally, Ancestry’s proposed use of such information is still for the purpose of facilitating genealogical research.

We have noted Ms Sinclair’s evidence, which was not disputed by Ancestry, that users of ScotlandsPeople can, and do, upload relevant digital image records to their trees on Ancestry’s platform to improve the accuracy of such trees. It seems to us that whether a user imports information from ScotlandsPeople onto the Ancestry platform, or whether Ancestry imports such information by acquisition of the requested information, the purpose is the same: the facilitation of genealogical research. Ancestry’s superior functionalities and additional services may enable a broader, more personalised user experience, but that is all.

The Tribunal finds that the Request is a request for re-use within the meaning of Regulation 4(1).

We proceed to address the remainder of Ancestry’s grounds of appeal.

Ancestry submits that NRS has maintained for itself an unfettered discretion as to whether to permit re-use, ignoring: (1) the terms of RPSI themselves, including the express requirement of Regulation 7(3) that public sector bodies’ discretion under Regulation 7(2) be exercised subject to the conditions set out at Regulations 11-16 and (2) the principles of public law which apply to all decision-making by the NRS, including the requirements of consistency and adherence to published policies, those engaging consideration respectively of what Ancestry says is NRS’s own and GSU’s/FamilySearch’s re-use of the requested information, and NRS’s failure to adhere to the Guidance.

We address each of those submissions in turn.

Regulation 7(1) provides that, subjection to Regulation 7(2), a public sector body must permit re-use when it receives a request made in accordance with Regulation 6.

Regulation 7(2) provides that a public sector body which is a library, museum or archive may permit re-use when it receives such a request.

The parties have agreed that for present purposes NRS is to be characterised as an archive within the scope of Regulation 7(2) and has a discretion as to whether to permit re-use. However, in its oral closing submissions, Ancestry floated the prospect of an argument that at least the Registrar function of NRS might not fall within the discretionary category. By its written closing submissions, Ancestry has confirmed that this issue does not form part of the issues to be determined in this appeal, although it reserves its right to make submissions on it in any subsequent proceedings.

Regulation 7(3) provides that where an archive permits re-use, it must do so in accordance with Regulations 11 – 16.

Regulation 12 provides that a public sector body may impose conditions on re-use but that such conditions must not unnecessarily restrict the way in which a document can be re-used or competition. Regulation 13 provides that a condition imposed under Regulation 12 must not discriminate between applicants who make a request for re-use for comparable purposes.

Ancestry submits that for an archive to maintain a discretion unfettered by Regulations 12 and 13, effectively carves out any discriminatory or arbitrary decision to refuse a request; would fail to prevent discrimination from occurring at the point where it is of the most significance; would preclude an archive ever being the subject of enforcement in relation to exclusive arrangements; and would preclude an interpretation of RPSI which is in line with the principles of equal treatment and consistency.

Ancestry further submits that a construction of RPSI which does not limit the temporal scope of the non-discrimination and non-exclusivity provisions is fortified by consideration of Article 3(2) of the Amended 2003 Directive since it triggers the operation of the Directive’s non-discrimination principles: “where the re-use of such documents is allowed” - that is to say, once any person (in this case NRS by ScotlandsPeople or GSU) is permitted to re-use the documents.

We are not persuaded by those submissions.

We find that the threshold discretion to permit re-use afforded by Regulation 7(2) is not qualified or conditioned by any requirement in Regulations 11 - 16. It is only if an archive decides to permit re-use, that Regulations 11 – 16 are engaged.

Specifically, Regulations 12 and 13 limit the conditions which an archive may impose on re-use, once it has decided to permit re-use in response to a request made pursuant to Regulation 6. In our view, Regulations 12 and 13 are only effective to “manage” discrimination and competition in any conditions which an archive may impose, once it has exercised its threshold discretion to permit re-use in relation to each request made. They are not to be read back to the exercise of that threshold discretion.

The effect of Ancestry’s submission is to deny an archive its threshold discretion and to make permission to re-use mandatory, subject to terms, when, in fact, RPSI, and the Amended 2003 Directive behind RPSI, have each been careful to carve out just such a discretion for an archive’s benefit. There may be any number of good and practical considerations for refusing a request for re-use, which we consider the threshold discretion is intended to respect.

Ancestry’s further submission is predicated on “where” in Regulation 7(3) (“Where a public sector body permits re-use,...”) meaning “once”, that is to say, once one request for re-use is permitted, the Amended 2003 Directive’s non-discrimination principles and the principle of equal treatment mean that a subsequent, comparable request cannot be refused. Ancestry says its position in this regard is fortified by the wording of Article 3(2) of the Amended 2003 Directive which triggers the operation of that Directive’s non-discrimination principles: “where the re-use of such documents is allowed.”

We do not accept that “where” means “once”, in the sense that once an archive has permitted re-use in one case, it has, to all intents and purposes, crossed the Rubicon.

We accept that “where” in the Amended 2003 Directive, taken together with use of the verb “allow” in the passive rather than active form, might be read as indicating a practice or habit or at least a sequence of permissions, but that is not sufficient to make “where” mean “once” in the sense contended for by Ancestry in relation to Regulation 7(3).

Article 3(2) of the Amended 2003 Directive reads, in full: “For documents in which libraries, including university libraries, museums and archives hold intellectual property rights, Member States shall ensure that, where the re-use of such documents is allowed, these documents shall be re-usable for commercial or non-commercial purposes in accordance with the conditions set out in Chapters III and IV.”

In our view, the natural and ordinary meaning of Article 3(2) is this: whenever, that is to say, on each occasion when,a library, museum or archive permits a re-use of information, that information must be re-usable in accordance with the conditions set out in Chapters III and IV. Our interpretation of Regulation 7(3) is wholly consistent with that.

NRS had a discretion to refuse the Request. We do not consider that its exercising its discretion to refuse the Request breached any requirement of RPSI.

Ancestry submits that NRS has exercised its discretion unlawfully because it has itself re-used the requested information. Consequently, Ancestry submits, NRS has acted inconsistently and discriminatorily in a way which is unlawful as a matter of public law.

Regulation 4(2) provides that re-use shall not include the transfer for use of a document within a public sector body for the purposes of carrying out its own public task. The Amended 2003 Directive provides only that “Exchange of documents between public sector bodies purely in pursuit of their public tasks does not constitute re-use." [Art. 2.4].

Ancestry’s submissions on this issue may be summarised as follows:

We reject Ancestry’s submissions. In our view, the effect of Regulation 4(2), read as a whole, means that NRS’s use of the requested information on ScotlandsPeople is not a re-use. In notable contradistinction to Regulation 4(1), Regulation 4(2) makes no reference to the initial purpose of production of the document, which is relevant only to assessing whether use by a third party, not by the public sector body itself, is a re-use. Regulation 4(2) is focused only on use, not purpose, and, moreover, use within a public task. Sui generis exclusive re-use rights given to third party digitisation providers are irrelevant in this context.

We are satisfied that the transfer of the requested information to ScotlandsPeople and its use by NRS on ScotlandsPeople falls within the scope of NRS’s public task.

NRS’s public task as articulated is undoubtedly broad but, in our view, properly reflective of its core role and functions: collecting, preserving and producing information about Scotland’s people and history and making it available to inform current and future generations, those activities encompassing the archival functions of the Keeper and the registration and statistical functions of the Register General, their respective duties provided for by legislation. Its further function within its public task, that is to say, producing, holding and using the information, which is evidently integral to those earlier functions, readily accommodates provision of that information to the public, whether by way of ScotlandsPeople or otherwise, for a wide variety of reasons, including genealogical research.

In our view, NRS’s use of the requested information on ScotlandsPeople is not re-use.

We acknowledge that Recital 9 to the Amended Directive says that “Activities falling outside the task will typically include supply of documents that are produced and charged for exclusively on a commercial basis and in competition with others in the market” but that does not unseat our finding: the requested information is not produced or charged for exclusively on a commercial basis. Its production is the result of statutory and administrative functions, and the charges for access to it are set by statute. In any event, the Recital is not binding, and its use of the word “typically” indicates only a non-prescriptive suggestion as to what activities might be relevant.

Ancestry submits that NRS has exercised its discretion unlawfully because it has permitted GSU/FamilySearch to re-use certain of the requested information with the consequence that NRS has acted inconsistently and discriminatorily in a way which is unlawful as a matter of public law.

We have been shown a number of agreements between NRS’s antecedents and GSU over recent decades establishing arrangements whereby GSU, on occasion with third party assistance, have microfilmed or digitised and indexed certain records held by NRS, some of which Ancestry now seeks, in return for which GSU has been able to retain the material it created and make it available to certain persons (“the GSU agreements”). NRS accepts that those agreements have continuing effect in certain limited respects. It has not told us what those are.

All the GSU agreements we have seen pre-date RPSI coming into force, the earliest by 64 years.

By its response dated 21 June 2023 to Ancestry’s complaint, NRS said that none of the arrangements were made under RPSI, and the existence of the arrangements does not place NRS under any obligation to make the requested information available to Ancestry under RPSI.

Additionally, in its skeleton argument for the hearing, NRS denies that the arrangements are exclusive arrangements, whether in terms of Regulation 14 or otherwise, and that in any event, Regulation 14 did not exist at the time they were entered into and does not apply to those agreements now.

It is unclear to us whether by those statements NRS is seeking to make a positive case that RPSI do not apply to the GSU agreements because they were entered into before RPSI came into force. It is not a point addressed in NRS’s closing submissions. Indeed, no party has evidently grappled with the question, possibly because they believe the answer to it to be self-evident.

RPSI are not expressed to apply only to re-use arrangements entered into after RPSI came into force.

RPSI refer expressly to re-use arrangements entered into before RPSI came into force only in the context of exclusive arrangements.

The Amending Directive provides by Recital 32 for transitional provisions to accommodate exclusive arrangements already in place. Regulation 14 provides accordingly. Exclusive arrangements have necessarily been highlighted to found transitional provisions to protect the interests of the user beneficiaries of such arrangements. For reasons we set out below, we do not consider that the arrangements with GSU are exclusive arrangements in any event.

We are satisfied that RPSI extend to non-exclusive arrangements entered into by libraries, museums and archives before RPSI came into force whereby a permission for re-use of documents is extant at the time the request for re-use is made. Article 3 of the Amended 2003 directive provides: “For documents in which libraries, including university libraries, museums and archives hold intellectual property rights, Member States shall ensure that, where the use of such documents is allowed [our emphasis], these documents shall be re-usable for commercial or non-commercial purposes in accordance with the conditions set out in Chapters III and IV.” Regulation 7(3) provides that “Where a public sector body permits[our emphasis] re-use, it must do so in accordance with regulations 11 to 16.” The emphasis in Article 3 and Regulation 7(3) is on current permission, that is to say, permission in place at the time of the request.

We have not heard submissions or received evidence on the detailed workings of the GSU agreements. What follows is simply a summary of what we understand from a review of the agreements to have been the parties’ intentions as to the use which may be made by GSU of the relevant information. Some of the agreements have been subsequently extended to permit different or extended types of use or permit licence terms.

The 1951 agreement provided for GSU to microfilm certain (we are not told which) old parochial registers and early Census records of Scotland, in consideration for which the image might be made available in GSU’s library to any person seeking information on their family pedigree without charge, regardless of whether such a person was a member of the Church or not.

The first 1989 agreement provided for GSU to microfilm the Old Parochial Registers of Scotland, 1553-1854, producing a set of fully indexed data on computer output microfiche of the registers of baptisms, births and marriages for 1553 – 1854, in consideration for which GSU might, under a non-exclusive licence, use the microfilms it produced and the information contained.

The second 1989 agreement provided for GSU to microfilm the old parochial registers of the Church of Scotland, 1553-1854, the Scottish statutory registers of births, deaths and marriages, 1855-75, 1991 and 1891, the Annual Indexes to the statutory registers, 1855 – 1959, miscellaneous minor records, to 19^th century and Scottish Census returns, 1841-1891, in consideration for which GSU might disseminate and make non-commercial use of microfilm copies of that data in its system and other facilities throughout the world, and might enter that data, except the information from the Census records, in its International Genealogical index.

The 1993 agreement provided for GSU to microfilm the 1881 Census Returns for Scotland and to retain copies of the micro-film for non-commercial uses.

The 1999 agreement provided for GSU to provide GSU personnel to a third party provider to digitise and index certain testamentary papers and wills of Scotland from 1500 – 1875, and the grant of a non-exclusive licence to copy and use the digitised material for display within libraries and centres which are part of GSU’s Family History Library System, without charge for GSU Patrons who may make their own transcript of the information, and to exhibit the indexes for public examination over the internet. GSU patrons are members of the general public who use the Family History Library system.

The 2003 agreement provided for GSU to digitise the Kirk Sessions Records in consideration of which GSU might reproduce, distribute, display, use and permit the use of the digital images for non-profit purposes, access thereto being free for all members of the Church of Jesus Christ of Latter-day Saints from the church’s own website, but may not sell the images without NRS’s consent.

The 2006 agreement provided for the digitisation by GSU of the registers of Sasines, 1573-1901 in consideration of which GSU might use the information on terms similar to those provided for in the 2003 agreement.

Based on the brief descriptions in each agreement as to the use which GSU and third parties might make of the information, and taking the agreements in the round, we have formed the view that GSU has been permitted to use the information to facilitate genealogical research by the public through its various arms and distribution centres, initially at least for non-profit but subsequently, even if on a limited basis, on commercial terms. Such a use is for a purpose other than the initial purpose of its production within NRS’s public task.

In our view, to the extent that at the time of the Request GSU had permission to use any of the requested information to enable the facilitation of genealogical research, that was a permission for re-use.

Ancestry’s third ground of appeal is that the Request was refused in furtherance of an unlawful exclusive arrangement with FamilySearch resting, as we understand it, on the GSU agreements we have already addressed.

By his witness statement, Mr Atkinson explains that: NRS has permitted FamilySearch to use certain items of the requested information on FamilySearch’s search platform; that platform has similar, but apparently inferior, functionalities to those of Ancestry; while FamilySearch is operated by a not-for-profit organisation and is free to access, FamilySearch does create assets with value including digital images, such as those within the requested information, and digital indexes which it may then license to or exchange with third parties such as Findmypast.

We have noted that the Commissioner states in his skeleton argument that FamilySearch does not have the digital image assets and updated index that form part of the requested information. Ancestry disputes that statement, at least in relation to digital images, if not indexes, pointing to the availability of at least certain Scotland Census records on FamilySearch.

In its written, closing submissions, NRS refers to Mr Atkinson’s evidence on FamilySearch, saying that Ancestry has been advised in correspondence that this issue is being investigated and that it is not relevant for the purposes of this appeal; for that reason, it was not pursued in evidence and the Tribunal should ignore it.

In response, in its closing written submissions, Ancestry says that NRS’s assertion that FamilySearch’s use of such records is irrelevant, bald and unexplained, and that use by FamilySearch of certain of the requested information indicates an exclusive arrangement.

Absent evidence as to the basis on which FamilySearch might currently be using some of the requested information, whatever that information might be, which was not addressed at the hearing, we are unable to address this point further.

As for the GSU agreements we have seen, there is no provision in those agreements which grants GSU exclusivity. There is no provision in them which would enable GSU to enforce exclusivity.

Ancestry submits that the agreements give rise to “de facto” exclusivity since NRS has refused to enter into equivalent arrangements with any other prospective user; this is a question of substance, not form.

We reject the notion of de facto exclusivity in this context. We were shown no authority supporting it. Regulation 14(13) defines an “exclusive arrangement” under RPSI as meaning “a contract or other arrangement granting an exclusive right to re-use a document”. The GSU agreements do not contain such a grant.

We have not identified any exclusive arrangement with GSU within the meaning of RPSI.

We reject Ancestry’s submission that NRS’s refusal of the Request was intended to further, or has furthered, any exclusive arrangement in existence with FamilySearch. Even were such arrangements to be exclusive, we do not consider that that fact would assist Ancestry, save to the extent that it may form part of Ancestry’s armoury in a public law challenge to NRS’s refusal of the Request. Of itself, and in the narrow confines of RPSI, any exclusive arrangement with FamilySearch would afford no relief.

Ancestry submits that in exercising its discretion to respond to the Request, NRS was required, but failed, to adhere to the Guidance. We take that to be a public law challenge to the exercise of NRS’s discretion, and we address that below in our analysis of the Tribunal’s jurisdiction to determine such a challenge. We confine ourselves at this point to the following matters.

On the evidence before us, we are unable to find that NRS had regard to the Guidance in determining its response to the Request: we understood Dr Egdell’s evidence, noting that Dr Egdell did not, in fact, participate in the initial decision to refuse the Request, to be that she thought that NRS would have had regard to the Guidance.

The Guidance is not statutory guidance. It is a publication by The National Archives. NRS has not formally subscribed to it. We are told that the Scottish Government has published it. NRS is not part of the Scottish Government.

RPSI make no mention of the Guidance. RPSI contain no requirement for a library, museum or archive to have regard to, or adhere to, any guidance.

The Guidance describes itself on its face as “practical guidance” “designed to help cultural sector bodies comply with requirements for the re-use of public sector information”. The Guidance makes clear that it constitutes The National Archives’ “interpretation” of RPSI and is The National Archives’ own explanation of the changes introduced by the Amending Directive and how those are being transposed in RPSI.

Ancestry has emphasised that the Guidance was reviewed and cleared by a cross-Government steering board and that the Explanatory Memorandum to RPSI refers to it as having been prepared to support the implementation of RPSI. Given that RPSI came into force on 18 July 2015, presumably some earlier version of the Guidance we have seen, which appears to have been published in January 2019 as v1.2, was published for that initial purpose. In any event, these matters do not mean that the Guidance is effective to create legal rights or obligations additional to, or different from, those in RPSI. The National Archives has no rule-making or decision-making function in this context.

Importantly, we consider that The National Archives’ interpretation of RPSI may misstate several matters. Under a heading “Key aspects 2015 Regulations”, the Guidance says: “Cultural sector bodies not required to permit re-use, unless the information is already available for re-use (even by themselves)” [page 5]. Additionally, under a section headed “Access and re-use", the Guidance says: “For cultural sector bodies re-use permission is mandatory if it has already allowed the information to be re-used for a similar purpose (including by itself)” [page 10]. Further, under a heading “Permitting re-use", the Guidance says: “Where re-use is permitted for more than one party, including by the cultural sector body itself, it must be on the same terms and conditions (non-discriminatory)” [page 22]. RPSI does not, in fact, contain any provisions to those effects.

There is no requirement in RPSI for NRS to have regard to or adhere to the Guidance.

Regulation 11(4) provides that:

“Nothing in these Regulations obliges a public sector body to do any of the following-

(a)

create or adapt a document or provide an extract from it in order to comply with a request for re-use where to do so would involve disproportionate effort;

...”

NRS submits that acceding to Ancestry’s request would require it to extract the requested information from its information holdings which would involve disproportionate effort.

While we accept that “document” is broadly defined by RPSI, in the context of Regulation 11(4)(a) RPSI, we find that the natural and ordinary meaning of providing an extract from a document excludes the notion of extracting a sub-set of information from a wider set of information in the sense of extracting the requested information from NRS’s wider information holdings, and would relate instead, for example, to removing a name from a single record in order to enable it to accede to a request. We do not therefore accept NRS’s submission that permitting re-use of the requested information would require an extraction exercise of the sort contemplated by Regulation 11(4).

In any event, for the reasons we have given, we find that Regulation 11(4) is not engaged until such point as a public sector body has exercised its discretion to permit re-use. In our view, it forms no part of a justification to refuse a request at the exercise of the threshold discretion.

On the second day of the hearing, at the start of his oral closing submissions, the Commissioner indicated that he wished to reserve his rights to argue in any subsequent proceedings that the Tribunal does not have jurisdiction to determine any public law challenge by Ancestry to the exercise of NRS’s discretion to refuse the Request.

It seemed to us unsatisfactory that this issue be left unaddressed by the Tribunal, which should investigate its jurisdiction. Accordingly, after the hearing, the Tribunal directed the parties to provide written submissions on this issue, which they duly did, in detail: the Commissioner on 28 April 2025 and Ancestry and NRS on 19 May 2025. Each party provided a bundle of authorities in support of its submissions.

Although we have not heard oral argument on this issue, we are satisfied that it is appropriate for us to determine the issue on the basis of those submissions and their accompanying authorities.

The Commissioner’s submission is advanced on four grounds as follows.

First, the Tribunal has no judicial review jurisdiction: it is a statutory body and has no power to act outside its jurisdiction.

Second, RPSI does not grant the Commissioner power to determine breaches of public law principle. Rather his role is set out in Regulation 18 which applies the enforcement and appeals provisions set out in FOIA to enforcement and appeals under RPSI with appropriate modifications: in the instant case, the Commissioner must decide whether a valid request has been made, whether a body is a library, museum or archive, and whether or not the body has decided to permit re-use but not whether that decision is in breach of public law principles. Where, under FOIA, an appeal to the Tribunal is a full merits appeal in which the Tribunal stands in the shoes of the decision-maker, that would be antithetical to the application of public law principles which preclude substitution of judgment by the Court where an administrative discretion or factual determination is concerned.

In relation to this second ground, the Commissioner relies on Ofcom v IC and Morrissey [2012] AACR 1 (“Morrissey”) which held that the Commissioner’s powers under FOIA, and therefore the Tribunal’s jurisdiction on appeal, did not extend to considering the “reasonableness” (in the Wednesbury sense) of Ofcom’s conduct in relying on an optional prohibition on disclosure under s393 of the Communications Act 2003 for the purposes of establishing the absolute exemption from disclosure afforded by s44 FOIA (disclosure prohibited by an enactment).

Third, the Tribunal has no power to determine breaches of public law principles because its role is to review the Commissioner’s decision-making and if the Commissioner has no such power, nor does the Tribunal, and because the legislative structure is inconsistent with any power in the Tribunal to consider such matters. By analogy with appeals in the Tax Chamber of the Tribunal, where an appeal is brought as a defence to enforcement action, then a private citizen may rely upon public law principles to defend themselves but where a tax issue is raised on a purely “offensive” basis, any reliance on public law principles is required to be brought by way of judicial review. Ancestry’s appeal is of the latter type.

Fourth, the Administrative Court, not the Tribunal, has the relevant expertise to determine breaches of public law principles.

The Commissioner submits that, consequently, Ancestry’s arguments in relation to what the Commissioner terms irrationality issues (non-adherence by NRS to the Guidance, and consistency (Ancestry’s claim that NRS has entered into exclusive re-use arrangements with other parties)) cannot properly be considered by the Tribunal.

Ancestry submits that none of its grounds is a pure public law challenge, rather each of the grounds relates to a way in which NRS’s refusal of the Request contravened RPSI or the general principles of EU law they necessarily import. Specifically, by reference to the way the issues between the parties developed over the course of the hearing:

On the subject of jurisdiction, Ancestry submits that the fact that the Tribunal has no inherent judicial review jurisdiction is neither here nor there: the question is what Article 4(4) of the Amended 2003 Directive, as implemented by Regulation 18, requires by way of remedy to give effect to the right to redress.Article 4(4) grants a right of redress in relation to “any decision on re-use”, and a decision under Regulation 7(2) (or Article 3(2)) to refuse, as a matter of discretion, to permit re-use is a “decision on re-use”. Reliance on the wording of s50 FOIA as modified by Regulation 18, divorced from any consideration of Article 4(4) of the Amended 2003 Directive to which it gives effect is unsafe. The Commissioner’s powers must be read in their legislative context. There is no problem with the Tribunal having a full merits jurisdiction: it is a specialist body with appropriate information law expertise which has been designated to oversee compliance with RPSI, and will only intervene where a request has been handled unlawfully. The relevant public body also has a right to a full merits appeal in the Tribunal. There are, in any event, unlikely to be many cases in which discretionary decision-making is unlawful: on the facts of the present case, for example, there is no discretionary decision in issue because Regulation 7(2) decisions are mandatory if re-use has already occurred. The question of whether the Commissioner and the Tribunal have power to review discretionary decisions is one of statutory construction.

Ancestry argues that Morrissey is not on point for the following reasons: first, because although the wording of the Commissioner’s powers under RPSI is “borrowed” from FOIA, the foundation of the powers is entirely different: s50 FOIA (unmodified) is predicated upon a scheme of requirements, not questions of discretion; second, unlike Ofcom, NRS has no specialist functions or decision-making powers at issue comparable to the regulatory judgments of Ofcom and RPSI relate directly to, and control the exercise of, discretion by Regulations 11 – 16, and Article 4(4) of the Amended 2003 Directive dictates that the Commissioner’s role is not mere verification but a full and binding review on any decision on re-use; third, there is a strong presumption or requirement of procedural inclusivity militating against an interpretation of RPSI which would require a party to go to multiple tribunals to obtain effective relief. Ancestry reserves its rights to argue on appeal that Morrissey was wrongly decided.

Ancestry submits that an approach which holds that the Commissioner, and therefore the Tribunal, is permitted only to consider certain deficiencies in a public body’s response to a request for re-use, with other deficiencies carved out for judicial review, would be contrary to the purpose of RPSI which is fully and effectively to implement Articles 4(4) and 12 of the Amended 2003 Directive, and to a general principle of EU law that continues to operate in relation to disputes based on facts arising before 1 January 2024, namely a requirement to ensure an effective remedy in compliance with assimilated EU law. It would be wrong to require Ancestry to issue proceedings for judicial review in a different jurisdiction (Scotland), at full costs risk.

Ancestry identifies that Recital 28 of the Amending Directive provides that:

“The means of redress should include the possibility of review by an impartial review body. That body could be an already existing national authority, such as the national competition authority, the national access to documents authority or a national judicial authority. That body should be organised in accordance with the constitutional and legal systems of Member States and should not prejudge any means of redress otherwise available to applicants for re-use. It should however be distinct from the Member State mechanism laying down the criteria for charging above marginal costs. The means of redress should include the possibility of review of negative decisions but also of decisions which, although permitting re-use, could still affect applicants on other grounds, notably by the charging rules applied. The review process should be swift, in accordance with the needs of a rapidly changing market.”

Article 4(4) of the Amended 2003 Directive provides:

“Any decision on re-use shall contain a reference to the means of redress in case the applicant wishes to appeal the decision. The means of redress shall include the possibility of review by an impartial review body with the appropriate expertise, such as the national competition authority, the national access to documents authority or a national judicial authority, whose decisions are binding upon the public sector body concerned.”

Article 12 of the Amended 2003 Directive provides:

“Member States shall bring into force the laws, regulations, and administrative provisions necessary to comply with this Directive”.

Ancestry submits that RPSI, and only RPSI, were introduced to comply with that requirement. In this regard, Ancestry refers to the Explanatory Memorandum to RPSI which provides:

“Secondly, the 2013 Directive requires Member States to provide for redress by an impartial review body in respect of any complaint against a decision taken by a public sector body about re-use. The approach taken by the regulations is to apply (with appropriate modifications) the appeal provisions of the Freedom of Information Act 2000, with the result that an initial complaint against a public sector body’s decision can be made to the Information Commissioner with a subsequent appeal to the First-tier Tribunal. ...” .

Ancestry submits that plainly what is contemplated as a means of redress for an applicant who wishes to appeal a decision is a single place of redress for any decision on re-use, and that the Commissioner, and by extension, the Tribunal, must be that place; the EU principle of effectiveness supports provision of a single channel for the vindication of EU rights and precludes unnecessary fragmentation of national appeal rights. In this regard, Ancestry refers to Case C-268/06, Impact v Minister for Agriculture and Food and Others ECLI:EU:C:2008:223 at [41]-[55], which addresses the responsibility of Member States’ national courts to provide the legal protection which individuals derive from the rules of Community law and to ensure that those rules are fully effective; the principle of effectiveness requiring that a specialist court which is called upon to determine a claim based on an infringement of legislation which implements a directive must also have jurisdiction to hear and determine an applicant's claims arising directly from the directive itself, in respect of the period between the deadline for transposing the directive and the date on which the transposing legislation entered into force, and avoid the need for the applicant to bring, at the same time, a separate claim based directly on the directive before an ordinary court, giving rise to procedural disadvantages and rendering it excessively difficult to exercise the rights conferred on him by Community law.

Ancestry says that that reasoning, that is to say, that the principle of effectiveness as a default prevents procedural rules requiring individuals to pursue expensive multiple channels of appeal against conduct which is unlawful as a matter of EU law, was endorsed by the Court of Appeal in Secretary of State for Work and Pensions v AT [2023] EWCA Civ 1307, [2024] K.B. 633 at [163] per Green LJ. The Court of Appeal accepted that while it is open to a Member State to determine for itself how it allocates responsibility for the enforcement of the relevant rights, where there were long standing and very real resource and funding problems in the way of local authorities performing their relevant statutory duties in this context, the rights must still enjoy effective protection.

NRS submits that the appeal is a statutory appeal, not a judicial review; the jurisdictional question raised by the Commissioner is one of statutory construction, and the Tribunal has a full merits-based jurisdiction, which enables the Tribunal to re-take the decision and issue a fresh notice. Nevertheless, in so doing, the Tribunal should take a restrained, public law approach acknowledging NRS’s institutional competence.

NRS does not support the Commissioner’s position on jurisdiction but welcomes the focus on the link between Ancestry’s grounds of appeal and the ground on which the Tribunal can grant the remedy sought.

In short, NRS makes two submissions: (1) it is unnecessary to approach the scope of the Tribunal’s jurisdiction in terms of judicial review grounds, and (2) it is inadequate to approach the appeal as being analogous to a judicial review because more evidence is required than is available to warrant the remedy sought by Ancestry.

Dealing first with whether any of Ancestry’s grounds of appeal is a pure public law challenge: we are of the view that at least the second ground of appeal as presented in its Grounds of Appeal is such a challenge: the refusal was “arbitrary and discriminatory, and was therefore contrary to principles of public law and a published policy [the Guidance] to which the NRS is required to adhere [19].” To the extent that Ancestry’s complaint in relation to NRS having entered into exclusive arrangements with FamilySearch is part and parcel of its complaint about arbitrary or discriminatory conduct, that too would appear to be a public law challenge.

The Tribunal is a statutory body, created by s3 of the Tribunals, Courts and Enforcement Act 2007 “for the purposes of exercising the functions conferred on it under or by virtue of this Act or any other Act”. Its jurisdiction is entirely statutory. It has no inherent jurisdiction to conduct a judicial review. It has no statutory jurisdiction to conduct such a review. It has no power to act outside its jurisdiction.

Regulation 18 RPSI applies the FOIA appeals provisions to enforcement and appeals under RPSI with modifications.

As modified for the purposes of RPSI (modifications shown struck out or underlined below as appropriate for ease of reference), s50 FOIA provides:

“(1)

Any person (in this section referred to as “the complainant”) may apply to the Commissioner for a decision whether, in any specified respect, a request for re-useinformation made by the complainant to a public sector bodypublic authority has been dealt with in accordance with the requirements of the Re-use of Public Sector Information Regulations 2015Part I.

…

(4)

Where the Commissioner decides that a public sector bodypublic authority—

(a)

has failed to communicate information, or to provide confirmation or denial, in a case where it is required to do so by section 1(1), or

(b)

has failed to comply with any of the requirements of the Re-use of Public Sector Information Regulations 2015sections 11 and 17,

the decision notice must specify the steps which must be taken by the bodyauthority for complying with that requirement and the period within which they must be taken.

(5)

A decision notice must contain particulars of the right of appeal conferred by section 57. …”

S58 FOIA provides (without any modifications) for an RPSI appeal to the Tribunal against the Commissioner’s decision:

“(1)

If on an appeal under section 57 the Tribunal considers—

(a)

that the notice against which the appeal is brought is not in accordance with the law, or

(b)

to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently,

the Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner; and in any other case the Tribunal shall dismiss the appeal.

(2)

On such an appeal, the Tribunal may review any finding of fact on which the notice in question was based.”

There is, of course, an obvious distinction between FOIA and RPSI: FOIA does not give a public authority a discretion as to whether to disclose information. Rather, s1 FOIA provides that any person making a request for information is entitled to be informed by the public authority whether it holds the information and, if that is the case to have that information communicated to him, subject only to specific provisions in ss1, 2, 9, 12 and 14 FOIA, including exemptions from disclosure by reference to the qualitative nature of the information requested, in certain of which cases the public authority must also decide whether the balance of the public interest in maintaining an exemption is outweighed by the public interest in disclosure. The latter is not a discretionary exercise. There is no exercise of any discretion by the public authority under FOIA for the Commissioner to review. The Commissioner undertakes what was described in Morrissey as a “verification” exercise of the public authority’s handling of the FOIA request, considering the extent of obligations imposed by FOIA and whether they have been complied with.

By contrast, RPSI do afford the public sector body a discretion as to whether to permit re-use. We have rejected Ancestry’s submission in this context that on the facts of the present case there is no discretionary decision in issue because Regulation 7(2) decisions are mandatory if re-use has already occurred.

In Information Commissioner v Malnick [2018] UKUT 72 (AAC) [90], the Upper Tribunal found that the Tribunal has a full merits appellate jurisdiction and so stands in the shoes of the Commissioner. In the freedom of information context, the principle derived from that is that the Commissioner, and thus the Tribunal, may “re-make” a decision made by a public authority under FOIA, issuing a substituted decision notice as appropriate.

This case is very different: we do not see Malnick as authority for the proposition that the Commissioner, and thus the Tribunal, should, in a re-use of public sector information context, re-exercise the public sector body’s discretion. We see force in the Commissioner’s submission that that is antithetical to the application of public law principles which preclude substitution of judgment by the Court where an administrative discretion or factual determination is concerned.

It is not the case that the Tribunal never has any jurisdiction to consider public law questions, and it may have to decide questions of public law in the course of exercising the jurisdiction which it does have (R&J Birkett t/a Orchards Residential Home & Others v The Commissioners for HM Revenue & Customs [2017] UKUT 0089 (TCC) [30]). It is possible that were the Tribunal to be required to determine whether a permission to re-use had been granted in accordance with Regulations 11 – 16, the Tribunal may be required to determine limited issues of public law, or, more accurately, to determine how public law principles might inform a proper determination of the correct application of a Regulation, most obviously Regulations 12 and 13 (competition and non-discrimination) on the facts of the case. However, those issues would only arise in the context of a challenge to the terms on which a permission to re-use had been granted, that is to say if an archive had exercised its discretion to permit re-use.

Ultimately, the Tribunal’s jurisdiction under RPSI is a question of statutory construction. FOIA, as modified for the purposes of RPSI, provides for a complaint to the Commissioner as to whether a request for re-use has been “dealt within accordance with the requirements of RPSI”. That means identifying the requirements relevant to the way the particular request has been dealt with.

Beyond it being implicit in RPSI that an archive is required to exercise its discretion to permit or refuse re-use, the only requirements in RPSI relating expressly to refusal of a request are Regulations 8 and 9. Regulation 8 provides for the timelines within which responding to a request for re-use, including refusal, must happen. Regulation 9 provides that where a public sector body refuses a request for re-use, it must, in certain circumstances, notify the applicant in writing of the reasons for refusal, and such notification must contain a reference to the means of redress available to the applicant.

The Commissioner’s statutory remit is to decide whether a request has been dealt with in accordance with the requirements of RPSI. In the context of a refusal, that means Regulations 8 and 9. The reasonableness of the exercise of a discretion to refuse is something altogether different. It does not engage any requirement of RPSI.

The Tribunal’s powers are restricted by reference to those of the Commissioner. Both the Commissioner, to all intents and purposes a regulator, and the Tribunal with overview of the Commissioner, are cast as having specialist knowledge of matters relating to freedom of information and re-use of public sector information. Against that background, we stand back and ask ourselves what, in fact, by this part of Ancestry’s appeal, is Ancestry asking the Tribunal to do?

In reality, Ancestry is asking us to examine and determine the limits of reasonableness in the exercise by a public sector body of a discretion which, if exercised so as to permit the requested re-use, would, as NRS would have it, mean it having to divest itself of, or at least potentially significantly diminish in its hands the value of, a unique asset which is currently fundamental to the performance of the public sector body’s public task, and to expose itself to additional, and potentially very substantial, ongoing costs, at an ultimate cost to the public purse.

It seems to us that that significantly exceeds the bounds of what the Commissioner and the Tribunal are set up to do under FOIA as modified for the purposes of RPSI. Neither the Commissioner nor the Tribunal has expertise in assessing within the limits of reasonableness in a public law context, decisions made with a view to the financial strategy and governance of a non-ministerial department in the Scottish Administration.

We observe that under s50(1) FOIA the Commissioner must determine whether the request has been dealt with in accordance with the requirements of RPSI, whereas under s58(1)(a) FOIA, the Tribunal must determine whether the Decision Notice is in accordance with the law. We do not consider that that difference can accommodate the expanded jurisdiction for which Ancestry contends in this Tribunal.

We acknowledge that a construction of RPSI which is effectively geared to determination by the Tribunal of issues which arise only where an archive has exercised its discretion to permit re-use, results in an unsatisfactory situation for an appellant in Ancestry’s position. We agree that for the Tribunal to be the “one stop shop” for which Ancestry contends would be convenient for such an appellant. But there is nothing in the Amending Directive or the Amended 2003 Directive which prescribes, nor could there be, the manner of laws and regulations required within a Member State to comply with the Amended 2003 Directive. Redress by an impartial review body is available, but where it is to be found depends upon the basis of the claim for redress. The Commissioner’s role, and the Tribunal’s jurisdiction, are circumscribed by the terms of RPSI. We do not consider that the Tribunal has jurisdiction to determine the lawfulness in public law terms of NRS’s refusal of the Request.

We note the Upper Tribunal’s reference in Morrissey to the possibility that any need for judicial review proceedings to determine public law challenges may be provided for by a transfer of a case to the Upper Tribunal, and for a court seised of judicial review proceedings to transfer those proceedings to the Upper Tribunal, with the result that if the judicial review court and the chamber presidents considered it appropriate, it would be possible both for the information rights appeal and the judicial review to be dealt with together in the Upper Tribunal. It may be that a similar approach could be adopted in relation to determining together a re-use of public sector information appeal by the vehicle of FOIA and public law challenges in relation to a refusal to permit re-use, save that we acknowledge that any need for Ancestry to issue any public law challenge proceedings in Scotland may be a bar to that approach in this case. We have, in any event, received no submissions on the subject.

By the Decision Notice, the Commissioner said that he was satisfied that NRS “was correct to apply regulations 4(1), 5(1)(b) and 7(2) to the requested information.”

That conclusion is opaque at least as to its reasoning.

Regulation 4(1) provides, subject to Regulation 4(2), that re-use means the use by a person of a document held by a public sector body for a purpose other than the initial purpose within that public sector body’s public task for which the document was produced. It is not clear what the Commissioner meant when he said that NRS was correct to “apply” Regulation 4(1). We assume that he meant that NRS was correct to conclude that the Request was not a request for re-use because it was not for a purpose other than the initial purpose within NRS’s public task for which the document was produced. That is the basis on which the Commissioner has proceeded in this appeal.

Regulation 5(1)(b) provides that RPSI do not apply to a document where a third party owns relevant intellectual property rights in a document. We understand that any of the requested information of that type has, by agreement between Ancestry and NRS, been carved out of the Request, and is not in dispute.

Regulation 7(2) provides that a library, museum or archive holding intellectual property rights in a document may permit re-use of that document. We assume that in saying that NRS was “correct to apply” Regulation 7(2), the Commissioner accepts that NRS has lawfully exercised its discretion under RPSI to refuse the Request. We do not read the Commissioner’s decision as expressing any view as to the lawfulness in public law terms of the exercise of that discretion.

The Tribunal finds that the Request was a request for re-use within the meaning of RPSI. To that extent, the Decision Notice is not in accordance with the law, and to that extent the Appeal must be allowed.

The Tribunal finds that NRS’s exercise of its discretion to refuse the Request was not in breach of any requirement of RPSI. To that extent the Decision Notice is in accordance with the law, and the Appeal must be dismissed. To the extent that the Appellant relies on alleged infringements of public law in support of its Grounds of Appeal, those parts of the proceedings are struck out under Rule 8(2) of the Tribunal Rules.