The INSPIRE (Scotland) Regulations 2009

These Regulations make provision for a purpose mentioned in section 2(2) of that Act and it appears to the Scottish Ministers that it is expedient for any reference in these Regulations to—

(a)Commission Regulation (EC) No 1205/2008 regarding metadata M1 to be construed as a reference to that Regulation as amended from time to time, and

(b)Annexes I, II and III to Directive 2007/2/EC of the European Parliament and of the Council establishing an Infrastructure for Spatial Information in the European Community (INSPIRE) M2 to be construed as a reference to those provisions as amended from time to time.

Marginal Citations

M1O.J. No. L 326, 4.12.2008, p 12.

M2O.J. No. L 108, 25.4.2007, p 1.

Citation, commencement and extentS

1.—(1) These Regulations may be cited as the INSPIRE (Scotland) Regulations 2009 and come into force on 31st December 2009.

(2) These Regulations extend to Scotland only.

InterpretationS

2.—(1) In these Regulations—

“the Act” means the Freedom of Information (Scotland) Act 2002 M3;

[F1“Commission Regulation (EU) No 1089/2010” means Commission Regulation (EU) No 1089/2010 implementing Directive 2007/2/EC of the European Parliament and of the Council as regards interoperability of spatial data sets and services,]

F2...

“discovery service” means a service described in regulation 8(2)(a);

[F3“interoperability” means the possibility for spatial data sets to be combined, and for services to interact, without repetitive manual intervention, in such a way that the result is coherent and the added value of the data sets and services is enhanced;]

“metadata” means information describing spatial data sets and spatial data services and making it possible to discover, inventory and use them;

“Metadata Regulation” means Commission Regulation (EC) No. 1205/2008 regarding metadata;

“Scottish public authority” has the meaning given by regulation 3;

“spatial data” means any data with a direct or indirect reference to a specific location or geographical area;

“spatial data service” means a service which consists of operations which may be performed, by invoking a computer application—

(a)

on the spatial data contained in a spatial data set, or

(b)

on the metadata related to a spatial data set;

“spatial data set” means an identifiable collection of spatial data which—

(a)

are in electronic format,

(b)

relate to one or more of the themes listed in [F4Annex 1, 2 or 3 of the Metadata Regulation], and

(c)

relate to—

(i)

the United Kingdom,

(ii)

Gibraltar,

(iii)

the territorial sea of the United Kingdom M4,

(iv)

an area of the continental shelf for the time being designated by an Order in Council under section 1(7) of the Continental Shelf Act 1964 M5, or

(v)

an area, outside the territorial sea of the United Kingdom, for the time being designated by an Order in Council under section 84(4) of the Energy Act 2004 M6;

“third party” has the meaning given by regulation 4.

F5(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) For the purposes of these Regulations—

(a)a Scottish public authority is responsible for a spatial data set if—

(i)that authority holds that data set (other than on behalf of another person), or

(ii)another person holds that data set on behalf of that authority;

(b)a Scottish public authority is responsible for a spatial data service if—

(i)that authority operates that data service (other than on behalf of another person), or

(ii)another person operates that data service on behalf of that authority;

(c)a third party is responsible for a spatial data set if—

(i)that third party holds that data set (other than on behalf of another person), or

(ii)another person holds that data set on behalf of that third party; and

(d)a third party is responsible for a spatial data service if—

(i)that third party operates that data service (other than on behalf of another person), or

(ii)another person operates that data service on behalf of that third party.

F6(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Marginal Citations

M32002 asp 13.

M4See section 1 of the Territorial Sea Act 1987 (c.49).

Meaning of “Scottish public authority”S

3.—(1) In these Regulations, “Scottish public authority” means—

(a)a public authority as defined in section 3(1) of the Act, but excluding any body, person or office-holder listed in schedule 1 to that Act only in relation to information of a specified description, or

(b)any other body or other person that is under the control of a person falling within sub-paragraph (a) and has public responsibilities relating to the environment, exercises functions of a public nature relating to the environment, or provides public services relating to the environment.

(2) But in regulation 13 “Scottish public authority” does not include the bodies or persons falling within paragraph (1)(b).

(3) These Regulations shall not apply to any Scottish public authority to the extent that it is acting in a judicial or legislative capacity.

Meaning of “third party”S

4.—(1) In these Regulations, “third party” means a person who—

(a)is—

(i)an individual whose address is in Scotland; or

(ii)a body corporate, partnership or unincorporated association whose principal office is in Scotland; and

(b)is not a person falling within paragraph (2).

(2) A person falls within this paragraph if that person—

(a)is a public authority in the United Kingdom;

(b)holds a spatial data set or operates a spatial data service on behalf of such a public authority; or

(c)holds a spatial data set or operates a spatial data service on behalf of—

(i)an individual whose address is in England, Wales or Northern Ireland; or

(ii)a body corporate, partnership or unincorporated association whose principal office is in England, Wales or Northern Ireland.

Scope of application of the Regulations: spatial data sets and spatial data servicesS

5.—(1) In so far as a provision of these Regulations concerns a spatial data set for which a Scottish public authority is responsible, that provision applies in relation to that spatial data set only if that data set is held—

(a)by a Scottish public authority which has produced or received that data set, or manages or updates that data set, within the scope of its public tasks; or

(b)by another person on behalf of a Scottish public authority which has produced or received that data set, or managed or updated that data set, within the scope of that authority's public tasks.

(2) But where multiple identical copies of the same spatial data set are held by or on behalf of various Scottish public authorities, that provision applies only in relation to the reference version from which the various copies are derived.

(3) Subject to paragraph (4), in so far as a provision of these Regulations concerns a spatial data set for which a third party is responsible, that provision applies in relation to that spatial data set only if that data set has been linked to a network of related spatial data sets following satisfaction of the conditions specified in regulation 9(3).

(4) The proviso specified in paragraph (3) does not apply to regulation 9(2).

(5) In so far as a provision of these Regulations concerns a spatial data service, that provision applies in relation to that spatial data service only if that provision applies in relation to the spatial data set to which that spatial data service relates.

Intellectual property rightsS

6.  Where a Scottish public authority or a third party is responsible for a spatial data set, it must not take any action under these Regulations in relation to that data set unless it has the consent of any other person who holds intellectual property rights in relation to that data set.

MetadataS

7.—(1) A Scottish public authority or a third party must create metadata M7 in relation to any spatial data set or spatial data service for which that authority or third party is responsible.

(2) Metadata in relation to a spatial data set or a spatial data service must include the following information—

(a)the quality and validity of that data set or data service;

[F7(aa)(where the metadata relates to a spatial data set corresponding to the themes listed in [F8Annex 1 of the Metadata Regulation] or to a spatial data service relating to such a data set) the conformity of that data set or data service with the requirements as to interoperability set out in regulation 7A;]

(b)the person responsible for the establishment, management, maintenance and distribution of that data set or data service;

(c)any limitations on public access to that data set or data service, and the reasons for such limitations;

(d)any conditions applying to access to, and use of, that data set or data service; and

(e)any charges payable in relation to access to, and use of, that data set or data service.

[F9(2A) The information in paragraph (2)(aa) regarding conformity with requirements as to interoperability must be included from the date by which the requirements in question apply.]

(3) Metadata must be complete and must be kept up to date.

[F10(4) A Scottish public authority or a third party must, in relation to any spatial data set or spatial data service for which that authority or third party is responsible, have in place metadata relating to—

(a)spatial data sets corresponding to the themes listed in Annexes 1 to 3 of the Metadata Regulation, and

(b)spatial data services relating to those data sets.]

F11(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Marginal Citations

M7See Commission Regulation (EC) No. 1205/2008.

[F12InteroperabilityS

7A.—(1) A Scottish public authority or a third party must ensure that the following are available in accordance with paragraph (2)—

(a)any spatial data set for which that authority or third party is responsible and which corresponds to the themes listed in [F13Annex 1 of the Metadata Regulation]; and

(b)any spatial data service for which that authority or third party is responsible and which relates to a data set described in sub-paragraph (a).

[F14(2) The spatial data sets and spatial data services described in paragraph (1) must be available in conformity with the requirements as to the interoperability of spatial data sets and spatial data services set out in Commission Regulation (EU) No 1089/2010.]

(3) Spatial data sets may be made available in conformity through—

(a)the adaptation of existing data sets; or

(b)the transformation services specified in regulation 8(2)(d).

F15(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

Textual Amendments

Network servicesS

8.—(1) A Scottish public authority or a third party must establish and operate the services M8 described in paragraph (2) in relation to any spatial data set or spatial data service—

(a)for which that authority or third party is responsible, and

(b)in relation to which metadata have been created in accordance with regulation 7 and the Metadata Regulation.

F16(1A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) The services are—

(a)discovery services—

(i)making it possible to search for spatial data sets and spatial data services on the basis of the content of the corresponding metadata and to display the content of the metadata, and

(ii)making it possible to search according to, as a minimum, the search criteria specified in paragraph (3) (used alone or in combination);

(b)view services making it possible, as a minimum, to display, navigate, zoom in and out, pan, or overlay viewable spatial data sets and to display legend information and any relevant content of metadata;

(c)download services, enabling copies of spatial data sets, or parts of such sets, to be downloaded and, where practicable, accessed directly;

(d)transformation services, enabling spatial data sets to be transformed with a view to achieving interoperability; and

(e)services allowing spatial data services to be invoked.

[F17(2A) Discovery services must enable a search according to the criterion in paragraph (3)(ca) regarding conformity with requirements as to interoperability from the date by which the requirements in question apply.]

(3) The matters referred to in paragraph (2)(a)(ii) are—

(a)keywords;

(b)classification of spatial data and spatial data services;

(c)the quality and validity of spatial data sets;

[F18(ca)(in the case of a spatial data set corresponding to the themes listed in [F19Annex 1 of the Metadata Regulation] or a spatial data service relating to such a data set) the degree of conformity with the requirements as to interoperability set out in regulation 7A;]

(d)geographical location;

(e)conditions applying to the access to and use of spatial data sets and spatial data services; and

(f)the person responsible for the establishment, management, maintenance and distribution of spatial data sets and spatial data services.

[F20(3A) In the case of a spatial data set corresponding to the themes listed in [F21Annex 1 of the Metadata Regulation] or a spatial data service relating to such a data set, from the date by which any particular requirements as to interoperability set out in regulation 7A apply, the transformation services specified in sub-paragraph (d) of paragraph (2) must be combined with the other services specified in that paragraph in such a way as to enable all those services to be operated in conformity with those requirements.]

(4) The services specified in paragraph (2) must—

(a)take into account relevant user requirements;

(b)be easy to use; and

(c)subject to regulation 10, be available to the public and accessible via the internet or any other appropriate means of telecommunication.

F22(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Marginal Citations

M8See Commission Regulation (EC) No. 976/2009, O.J. No. L 274, 20.10.2009, p.9.

Linking to a networkS

9.—(1) The Scottish Ministers must enable a Scottish public authority to link any spatial data set or spatial data service for which that authority is responsible to a network of related spatial data sets or spatial data services, provided that the conditions specified in paragraph (3) are satisfied in relation to that data set or data service.

(2) The Scottish Ministers must enable a third party to link any spatial data set or spatial data service for which that third party is responsible to a network of related spatial data sets or spatial data services, provided that—

(a)the third party makes a request to that effect; and

(b)the conditions specified in paragraph (3) are satisfied in relation to that data set or data service.

[F23(3) The conditions are—

(a)metadata have been created in accordance with regulation 7 and the Metadata Regulation (if on the date in question metadata were required to be created by regulation 7);

(b)services have been established and are operated in accordance with regulation 8 and [F24Commission Regulation (EC) No 976/2009 implementing Directive 2007/2/EC of the European Parliament and of the Council as regards the Network Services]; and

(c)(in the case of a spatial data set corresponding to the themes listed in [F25Annex 1 of the Metadata Regulation] or a spatial data service relating to such a data set) there is conformity with the applicable requirements as to interoperability set out in regulation 7A (if on the date in question conformity with those requirements is required by that regulation).]

Textual Amendments

Public access to spatial data sets and spatial data servicesS

10.—(1) Subject to paragraph (6), access by the public to a spatial data set or spatial data service by means of a service specified in regulation 8(2) may be limited only if—

(a)a limitation is permitted or required under paragraph (2), (3) or (4); and

(b)except in the case of a limitation under paragraph (2)(a), the public interest in limiting or placing conditions on public access outweighs the public interest in providing full access, in all the circumstances of the case.

(2) A Scottish public authority or a third party must not provide public access to personal data included in a spatial data set for which that authority or third party is responsible, if the provision of public access to that personal data otherwise than under these Regulations would contravene—

(a)any of the data protection principles, F26...

[F27(b)Article 21 of the [F28UK GDPR] (general processing: right to object to processing), or

(c)section 99 of the Data Protection Act 2018 (intelligence services processing: right to object to processing).]

F29...

(3) A Scottish public authority or a third party may, in relation to a spatial data set or spatial data service for which that authority or third party is responsible, limit public access to that data set or data service through a discovery service if such access would adversely affect international relations, public security or national defence.

(4) A Scottish public authority or a third party may, in relation to a spatial data set or spatial data service for which that authority or third party is responsible—

(a)limit public access to that data set or data service through a service described in regulation 8(2)(b), (c), (d) or (e), or

(b)limit public access to the e-commerce services referred to in regulation 11(4) which relate to that data set or data service,

if such access would adversely affect any matter specified in paragraph (5).

(5) The matters are—

(a)international relations, defence, national security or public safety;

(b)the course of justice, the ability of a person to receive a fair trial or the ability of a public authority to conduct an inquiry of a criminal or disciplinary nature;

(c)intellectual property rights;

(d)the confidentiality of the proceedings of any body where such confidentiality is provided by law;

(e)the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest;

(f)the interests or protection of the person who provided the spatial data in question where that person—

(i)was not under, and could not have been put under, any legal obligation to supply that data to any other person,

(ii)did not provide that data in circumstances such that any person is entitled apart from these Regulations to provide public access to that data, and

(iii)has not consented to the public being provided with access to that data; and

(g)the protection of the environment to which the spatial data set or spatial data service in question relates.

(6) A Scottish public authority or a third party may not limit public access to a spatial data set or spatial data service which contains information on emissions into the environment, on a ground specified in paragraph (5)(d), (e), (f) or (g).

[F30(7) In this regulation—

“the data protection principles” means the principles set out in—

(a)

Article 5(1) of the [F31UK GDPR],

(b)

section 34(1) of the Data Protection Act 2018, and

(c)

section 85(1) of that Act;

F32...

“personal data” has the same meaning as in Parts 5 to 7 of the Data Protection Act 2018 (see section 3(2) and (14) of that Act).

[F33“the UK GDPR” has the same meaning as in Parts 5 to 7 of the Data Protection Act 2018 (see section 3(10) and (14) of that Act);]

(8) In determining for the purposes of this regulation whether the lawfulness principle in Article 5(1)(a) of the [F34UK GDPR] would be contravened by the disclosure of information, Article 6(1) of the [F34UK GDPR] (lawfulness) is to be read as if the second sub-paragraph (disapplying the legitimate interests gateway in relation to public authorities) were omitted.]

Textual Amendments

Charges for public accessS

11.—(1) Except as provided by paragraph (2), a Scottish public authority or a third party must not charge the public for a discovery service or a view service which that authority or third party operates in relation to a spatial data set or spatial data service for which that authority or third party is responsible.

(2) A Scottish public authority or a third party may charge the public for a view service where that charge secures the maintenance of spatial data sets and spatial data services, especially in cases involving very large volumes of frequently updated data.

(3) A Scottish public authority or a third party may charge the public a reasonable sum for a service described in regulation 8(2)(c), (d) or (e) which that authority or third party operates in relation to a spatial data set or spatial data service for which that authority or third party is responsible.

(4) Where a Scottish public authority or a third party charges the public for a view service or a service described in regulation 8(2)(c) or (e), that authority or third party must ensure that e-commerce services are available in relation to that service.

(5) Spatial data made available through a view service may be in a form preventing their re-use for commercial purposes.

(6) In this regulation, “view service” means a service described in regulation 8(2)(b).

Enforcement and appeals in relation to public accessS

12.—(1) The provisions of the Act specified in paragraph (2) apply for the purposes of regulations 8(4)(c) and 10 as they apply for the purposes of the Act, but with the modifications specified in the Schedule to these Regulations.

(2) Those provisions are—

(a)section 47 (application for decision by Commissioner);

(b)section 48 (when application excluded);

(c)section 49 (Commissioner's decision);

(d)section 50 (information notices);

(e)section 51 (enforcement notices);

(f)section 53 (failure to comply with notice);

(g)section 54 and schedule 3 (powers of entry and inspection);

(h)section 55 (no civil right of action against Scottish public authority); and

(i)section 56 (appeal against notices)

(3) Section 63 of the Act applies to any information obtained by, or furnished to, the Scottish Information Commissioner under or for the purposes of regulation 8(4)(c) or 10.

Data-sharing between public authorities etc.S

13.—(1) A Scottish public authority must, in relation to a spatial data set or spatial data service for which it is responsible—

(a)enable any other Scottish public authority or a relevant body to gain access to that data set or data service, and

(b)enable any other Scottish public authority or a relevant body to exchange and use that data set or data service,

where that authority or body requires that data set or data service for the purpose of its public tasks that may have an impact on the environment.

(2) But a Scottish public authority may limit sharing of the kind described in paragraph (1) when this would compromise the course of justice, public security, national defence or international relations.

(3) Subject to paragraphs (4), (5) and (6), a Scottish public authority which supplies a spatial data set or spatial data service to another such authority or a relevant body may impose conditions on the access to or exchange or use of that data set or data service, for example by doing either or both of the following—

(a)providing that access to that data set or data service, or exchange or use of that data set or data service, is subject to terms and conditions imposed by a licence;

(b)making a charge for the access to, or exchange or use of, that data set or data service.

(4) But any such conditions must be compatible with the aim of facilitating the sharing of spatial data sets and spatial data services among Scottish public authorities and between such public authorities and relevant bodies, and must avoid creating practical obstacles, occurring at the point of use, to such sharing.

(5) Where a Scottish public authority makes a charge as described in paragraph (3)(b), the charge must be kept to the minimum required to ensure the necessary quality and supply of spatial data sets and spatial data services together with a reasonable return on investment, and any requirement on an authority to be self-financing is to be respected.

(6) Where, under [F35[F36assimilated] law] relating to the environment, a Scottish public authority is required to report a matter to [F37a relevant body], that authority must not charge that body in relation to the provision to that body of a spatial data set or spatial data service in satisfaction of that requirement.

(7) In this regulation “relevant body” means—

(a)a public authority in the United Kingdom (other than a Scottish public authority),

F38(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F39(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(d)a body established by an international agreement to which the [F40United Kingdom is a party].

Textual Amendments

Internal complaints procedureS

14.—(1) A Scottish public authority or a third party must establish an internal complaints procedure for dealing with a complaint relating to the performance of its functions under these Regulations.

(2) A complaint relating to the performance by a Scottish public authority or a third party of its functions under these Regulations—

(a)must be pursued according to the complaints procedure established by that authority or third party under paragraph (1); and

(b)must be made in writing.

(3) A Scottish public authority or a third party must determine a complaint within a reasonable time, and must notify the complainant of its determination without delay.

(4) Notification under paragraph (3) must be in writing and give reasons for the determination.

[F41Coordination, monitoring and reportingS

15.—(1) The Scottish Ministers must, for the purposes of ensuring compliance with these Regulations, ensure that appropriate structures and mechanisms are put in place for coordinating, across the different levels of government, the contributions of all persons with an interest in infrastructures for spatial information.

(2) In performing the function described in paragraph (1), the Scottish Ministers must coordinate the contributions of, in particular, users, producers, added-value service providers and coordinating bodies, concerning the identification of relevant data sets, user needs, the provision of information on existing practices and the provision of feedback on the implementation of these Regulations and the Implementing Rules.

(3) The Scottish Ministers must—

(a)ensure that Scottish public authorities and third parties comply with these Regulations and the Implementing Rules,

(b)monitor the implementation and use of the infrastructure for spatial information for the purposes of these Regulations, and make the findings available to the public in accordance with Commission Implementing Decision (EU) 2019/1372 (“Commission Implementing Decision (EU) 2019/1372”) implementing Directive 2007/2/EC of the European Parliament and of the Council as regards monitoring and reporting, and

(c)issue guidance to Scottish public authorities and third parties which are responsible for spatial data sets or spatial data services about the implementation of these Regulations.

(4) Guidance issued under paragraph (3)(c) must include provision relating to the internal complaints procedure which Scottish public authorities and third parties are required to establish under regulation 14.

(5) In performing their functions under these Regulations, Scottish public authorities and third parties must have regard to guidance issued under paragraph (3)(c).

(6) Scottish public authorities and third parties must provide such information to the Scottish Ministers as the Scottish Ministers may require in order to perform the functions described in paragraphs (1) to (3).

(7) In this regulation—

(a)“Implementing Rules” means the requirements of the Metadata Regulation, Commission Regulation (EC) No 976/2009 implementing Directive 2007/2/EC of the European Parliament and of the Council as regards the Network Services, Commission Regulation (EU) 1089/2010 and Commission Implementing Decision (EU) 2019/1372,

(b)“infrastructure for spatial information” means metadata, spatial data sets and spatial data services; network services and technologies; agreements on sharing, access and use; and coordination and monitoring mechanisms, processes and procedures, established, operated or made available in accordance with, and for the purposes of, these Regulations and the Implementing Rules.]

Textual Amendments

JOHN SWINNEY

A member of the Scottish Executive

St Andrew's House

Edinburgh