From our point of view, that would be a justified exception to point 1, as long as you provide that justification in the author note. Maybe the data holder has good arguments not to release the data, e.g. for anonymity reasons.
But point 12 says that we promote the values of open science at our institutions. That means, you could express your wish to the data holder that the data are released under an open license. If enough users of the data set do that, maybe they can achieve that change.