FOI49

Written evidence from Northumbria University

Does the Freedom of Information Act work effectively? What are the strengths and weaknesses of the Freedom of Information Act? Is the Freedom of Information Act operating in the way that it was intended to?

Executive Summary I have serious reservations as to the effectiveness of the Freedom of Information Act as a means of accessing information held within the Higher Education sector. Many of the requests made and the information sought (and the underlying motivations of the requesters) often do not appear to fall within the original spirit and intent behind the introduction of the Act. I also question the continued applicability of the Act to a sector which has changed radically since the Act came into force in 2005, particularly in light of the new student funding reforms due to take effect in September 2012. 1. It is considered by many that from September 2012, when the radical change in home student funding takes effect, universities gradual move from the public to the private sector will finally be completed. The Freedom of Information Act was introduced in order to make public sector bodies more open, transparent, and accountable to the taxpayer who funds them. From September 2012 the direct public funding for universities from the public purse is slashed to a minimal level. Accordingly the question of whether or not universities should continue to be covered by the Act needs to be urgently addressed. There are very strong arguments why universities should be removed from the coverage of the Act (in a similar way to the coverage of the EU public procurement rules). 2. If it is decided that the Act should continue to apply to universities, the increasingly competitive environment in which universities now operate must be recognised and take account of in the application of the Act, and particularly its exemptions. Intense competition is not something with which most public sector bodies (eg central government departments and local authorities) have to contend. Some clarity on where that leaves the HE sector in terms of using Commercial Interests as an exemption to prevent the disclosure of core University assets, such as course materials, would assist greatly in ensuring future compliance. 3. The Freedom of Information Act was passed with the intention of making public authorities more transparent, accountable and effective by allowing members of the public access to information. In practice the majority does not submit requests for information that could be seen to challenge the accountability or effectiveness of the University, but rather they request information to fulfill personal or professional curiosity. 4. An Act designed to provide the public with a right to access information is in practice rarely used by the vast majority of the public. For many the Freedom

FOI49
of Information Act is associated purely with controversial and/or newsworthy information published by the media. While the Act has allowed journalists to expose a number of high profile cases of misuse of public funds within government and local authorities, experience within the education sector has shown it to result in sensationalist headlines and misleading articles from cherry picked segments of the disclosed information. 5. The actual costs of responding to requests can often be greater than those costs covered under the FOI fees regulations, but the current regulations and guidance offered by the Information Commissioners Office do not take into account real world requests. Redaction of information can often take up the bulk of the workload. A common FoI request of late is one asking for copies of bank and credit card statements. Locating the statements can take only a couple of hours, but the statements themselves may contain account numbers, card numbers and in some cases home addresses of the card holders. When you are dealing with 600+ individual statements, all of which need to be checked and redacted, this can often take a lot longer than the actual searching for the documents but the guidance for the fees regulations direct that this may not be taken into account when calculating fees. 6. Whilst a good idea in theory, in practice the publication schemes have become relatively redundant in organisations that already publish everything listed within the scheme to their websites. A website which utilises a decent search facility should be able to find the information on the site quicker than an individual can navigate through a publication scheme containing titles that are only descriptive to the people who compiled the scheme. In some cases the publication scheme can be a hindrance to people searching websites as the publication scheme page will show higher in the search results than the actual page containing the information the page it links to. This means people are taken to the publication scheme page and instructed to click on a link, which wastes their time. In most organisations the publication scheme is a flat set of webpages with manually entered links. This means that a lot of time is spent chasing updates to redundant links. 7. The publication scheme has an advantage over webpages where the information is not already published on the site by virtue of it informing the applicant how they can access it (e.g. by asking for hard copy) and how much it will cost. However, since 2005 the University has only been asked once for a non-published item and there was no charge. Perhaps publication schemes are better suited to councils and government departments who do not already publish much of their content?

February 2012

FOI 50
Written evidence from the 1994 Group Post-Legislative Assessment of the Freedom of Information Act 2000

The following is the 1994 Groups response to the Justice Select Committees Post Legislative Assessment of the Freedom of Information Act 2000. For more detailed information please refer to the individual responses of our member institutions. Members of the 1994 Group are: University of Bath, Birkbeck University of London, Durham University, University of East Anglia, University of Essex, University of Exeter, Goldsmiths University of London, Institute of Education University of London, Royal Holloway University of London, Lancaster University, University of Leicester, Loughborough University, Queen Mary University of London, University of Reading, University of St Andrews, School of Oriental and African Studies, University of Surrey, University of Sussex and University of York.

Introduction We welcome this timely review of the Freedom of Information Act. Freedom of information and open access to the outputs of research is an important principle which the higher education (HE) sector embraces. The sector is proactive in this respect: Online publication repositories have been established by institutions to make the publications of academic staff publically available free of charge; Institutions pursue publication in open access journals wherever resourcing is possible. Open access journals make articles freely available globally in line with the gold principle; Publications stemming from research projects funded by the research councils and many other key funders are required to be made freely available within electronic archives, for example the research council Research Outcomes System; Researchers commit to making the outputs of publically funded research projects available through publication schedules. Publication schedules are an important consideration in the award of Research Council funding; Institutions make data about their activities publically available in a variety of ways; publication of information on websites including annual accounts and providing detailed information on staff, students, income and expenditure to the Higher Education Statistics Agency. Detailed information is also made available for prospective students, including through the new Key Information Sets; and Institutions respond to growing numbers of requests for information under the Freedom of Information Act. The JISC InfoNet Annual Survey shows that the number of information requests received by institutions has grown by over 250% from 2005 to 2010. 1 Institutions are committed to making information about their activities publically available. However, information provision must be balanced with the obligation universities have to the rigour and quality of their publically funded teaching and research and to maximising the benefit and outputs of such activities to the UK economy. The Freedom of Information Act in its present form does not adequately protect this balance.

The Information Legislation and Management Survey conducted in association with UniversitiesUK and GuildHE, available at: http://www.jiscinfonet.ac.uk/foi-survey/index_html

2 Research information UK research, some of which is supported through public money, is acknowledged to be of world leading quality and the UK is recognised as one of most productive countries in the world in terms of research outputs. 2 It is a necessary first principle that research is conducted to the highest standards. It is this principle, embodied by the peer review system, which has contributed to the UKs international excellence in research. Requirements for research data and information to be made publically available must be in harmony with this principle, and cannot be allowed to jeopardise the viability of the research conducted in the UK. The present Freedom of Information Act (FOIA) and the current Protection of Freedoms Bill progressing through Parliament presents some serious risks to this balance. The current FOIA does not do enough to protect research which has not reached its conclusion and the Protection of Freedoms Bill currently proposes that this lack of protection should be extended to cover research datasets. Whilst we endorse the public availability of research outputs there a number of serious risks presented by the current form of the FOIA and the proposals. Research data should not be made publically accessible before rigorous analysis has been concluded by the researchers or until the analysis has reached the stage set out in the publication schedule. It is inappropriate to share data where analysis is partially completed or not verified. To do so would often be misleading, and would place at risk the ability of the UK-based researchers to publish their conclusions before competitors do. This is especially the case with longitudinal datasets which need a lengthy period of data collection before results will be meaningful. Commercial interests are intrinsically linked to research which generates intellectual property and commercial possibilities. In a competitive environment commercial funders of research need to be assured that research data is confidential and secure until a project has reached fruition. The FOIA makes some exemptions for disclosure due to commercial interests, however this is conditional and must demonstrate that commercial prejudice would outweigh the public interest in disclosure. This complex clause may not in future provide funders with the necessary confidence in the UK as a desirable place to fund research. Funders from business and industry are easily able to take their research needs to international competitors should they have any concerns about the security of research data in the UK. This would be to the detriment of the UKs knowledge economy and to the higher education sector. Data confidentiality is not simply important for commercial reasons. It is vital that participants in research studies can be assured of their anonymity. If such a guarantee is not possible participants will be dissuaded from sharing information and it will not be possible to conduct sensitive and important research across all disciplines including medicine and the social sciences. Redacting data to anonymise data is a complex, time consuming process with high associated costs which are not provided for under the FOIA.

BIS (2011) International Comparative Performance of the UK Research Base http://www.bis.gov.uk/assets/biscore/science/docs/i/11-p123-international-comparative-performanceuk-research-base-2011.pdf 1994 Group (2011) Mapping Research Excellence: Exploring the links between research excellence and research funding policy http://www.1994group.ac.uk/documents/public/MappingResearchExcellence%20hi-res.pdf

3 The data generated from research can involve many terabytes of information of great complexity and variety in format. Making research data publically available in an accessible form is highly resource intensive. Supplementary data i.e. additional datasets and meta data which provide data descriptions, are needed to underpin the data increases the burden of demands made for research information. Data may be need to be interpreted using specialist software or stored in specialist datacentres and the costs of translating this to publically accessible sources is huge. The present FOIA makes provision for requests to be refused if the costs would be over 450. However, the burden of proof and the associated resources falls upon higher education institutions. The Protection of Freedoms Bill proposes that datasets under FOIA should as far as is reasonably practicable, provide the information to the applicant in an electronic form which is capable of re-use. This clause is not sufficiently defined and may lead to exorbitant costs being needed to make the information available. The FOIA conflicts with other important legislature. The Animals (Scientific Procedures) Act prohibits the disclosure of the identity of individuals holding Home Office project licences. It is a condition of the Home Office licence that this is adhered to and is a matter of personal safety. However, the University of Newcastle has been forced to disclose details of licences relating to projects where animals are used for experimentation by the Information Commissioner following a tribunal. The University is now in breach of its Home Office licence. This is a situation where the personal safety of researchers has potentially been placed in jeopardy and where the FOIA is in direct conflict with another piece of legislature. It is not acceptable for the safety of individuals performing approved and licensed research to be threatened. This also undermines the viability of important research work in the UK. As these conflicts indicate, the FOIA threatens the feasibility of the UKs research in a number of different ways. We therefore strongly support Universities UK in their call for an independent review of the effects of the FOIA on higher education institutions. Higher education institutions as public bodies Higher education institutions have traditionally been included within the FOIA. However, the higher education sector is fundamentally different in some respects when compared with public services. Higher education institutions operate in direct competition with each other for research funding and for students. Other public bodies, such as local authorities, do not operate in a market to such an extent. Furthermore, the higher education sector is undergoing a significant period of change to become even more competitive. The Governments clear intention, as laid out in the Higher Education White Paper, is for private providers to enter the higher education sector and for competition to be increased. It is essential that there is a level playing field for all HE providers. We cannot have a situation where new private HE providers are exempt from FOIA requests whereas current HEIs are not. In future, students will be entitled to the publically supported student loan scheme regardless of whether they attend a private or current HEI. In a more competitive and market driven system it is entirely inappropriate, and against commercial interests, to subject one group of higher education providers to FOIA obligations for potentially commercially sensitive information. Higher education institutions are funded through a diversity of sources, not simply through public funds. It has been commented in the Times Higher Education (THE) that as of 201213 the state will be contributing only 40 per cent of the sectors costs as opposed to 60 per cent previously. The THE also highlights this will be below the 50 per cent European Union threshold for defining a public body. 3 Universities UK modelling also shows that in 2014/15 public funds will contribute only 22% to overall teaching income in comparison to 66% in

http://www.timeshighereducation.co.uk/story.asp?sectioncode=26&storycode=418779&c=1

4 2010/11. 4 Given this, it may be more appropriate in future for some areas of higher education activity such as teaching to be exempted from FOIA legislation. We note this arrangement is currently in existence at the BBC and UCAS to protect some of the commercially sensitive activities of these organisations. Universities are committed to making available appropriate information on teaching and learning resources. This will not change in the new funding environment. However, it will be important to protect the commercially sensitive information of higher education institutions in a sector which has been purposefully designed to be more competitive. Many of the anomalies and hazards outlined above arise from the blanket and increasingly arbitrary designation of universities as public bodies, rather than linking a public function, or an HE activity funded by the taxpayer delivered by any provider, under the act. Conclusion Higher education institutions are committed to making information about their publically funded activities freely available. However this must be balanced with the needs of universities to respond to a competitive market place in both teaching and research. Compliance with the FOIA in its current form places at risk the excellence of the UKs research activity by forcing the release of data before project completion, deterring funders or placing researchers at risk. Since the implementation of the Freedom of Information Act the higher education sector has gone through a substantial period of change. A full and independent review is therefore needed to ensure that the FOIA and any forthcoming legislation from the Protection of Freedoms Bill is fit for purpose in the new funding environment. We strongly support Universities UK in calling for such a review. It is imperative that access to information enhances the quality, reputation and applicability of UK higher education rather than placing it at risk.

February 2012

UUK (2012) Futures for higher education: analysing trends, p7. Available at: http://www.universitiesuk.ac.uk/PolicyAndResearch/PolicyAreas/Scenarios/Documents/FuturesForHig herEducationReport.pdf