Written Evidence Submitted by the Information Commissioner (UEA Reviews 08)
I would like to provide a brief update to the
Committee on the work that my office has undertaken since the
Committee last reported.
My office worked closely with Muir Russell Inquiry
and welcomes the recommendations in the report relating to Freedom
of Information (FOI) and transparency. We are now working with
the Higher Education sector to take forward the general recommendations
in report. I attach a note of a recent meeting I attended with
senior members of the HE community (29 September), hosted by Universities
UK. The meeting was constructive with a good exchange of views
on both sides, and a commitment to improve dialogue between the
ICO and the sector and look at a number of issues arising from
compliance with the legislation in the HE sector.
Around of the time of Muir Russell report I
also issued a section 50 decision notice (FER0238017)[9]
related to the University of East Anglia's compliance with a particular
series of FOI requests from one applicant. Further section 50
cases remain under consideration by my office.
Since the Muir Russell report was published
we have also met with the Vice Chancellor and Registrar of UEA
to discuss the specific recommendations related to compliance
with the Freedom of Information and Environmental Information
Regulations (EIR) at the university. We were generally impressed
by the processes in place and actions taken to improve the culture
related to FOI and EIR. There are some areas where we agreed improvements
can still be made and discussions are ongoing about how we will
take this forward.
Christopher Graham
Information Commissioner
21 October 2010
APPENDIX
ROUNDTABLE MEETING BETWEEN INFORMATION COMMISSIONER'S
OFFICE AND HIGHER EDUCATION SECTOR TO DISCUSS THE IMPLICATIONS
OF FREEDOM OF INFORMATION FOR THE SECTOR
29 SEPTEMBER 2010, WOBURN HOUSE CONFERENCE
CENTRE, LONDON
NOTE OF
MEETING
Attending
— Professor David Eastwood, Vice-Chancellor,
University of Birmingham (Chair)
— Christopher Graham, Information Commissioner
— Professor Janet Beer, Vice-Chancellor,
Oxford Brookes University
— Professor Peter Gregson, Vice-Chancellor,
Queen's University, Belfast
— Mr Nigel Babb, Director of Strategic
Developments, University of Wolverhampton
— Mr Steve Bailey, Senior Adviser, JISC
InfoNet
— Ms Helen Bowles, Policy Adviser and Deputy
CEO, GuildHE
— Mr Ian Creagh, Head of Administration
and College Secretary, King's College London
— Mr Roger Gair, University Secretary,
University of Leeds
— Mr Paul Gemmill, Director of Communications
and Information Management, Biotechnology and Biological Science
Research Council, representing Research Councils UK
— Mr David Evans, Strategic Liaison Unit,
Information Commissioner's Office
— Dr Michael Jubb, Director, Research Information
Network
— Professor Roger Kain, Dean and Chief
Executive, School of Advanced Study, University of London
— Ms Olivia Kew-Fickus, Assistant Registrar,
University of Birmingham (Rapporteur)
— Mr Rex Knight, Vice-Provost (Operations),
University College London, representing the Association of Heads
of University Administration
— Professor Kerstin Mey, Director, Department
for Research and Enterprise, University for the Creative Arts
— Ms Julie Tam, Senior Policy Analyst,
Russell Group
— Professor Tom Ward, Pro-Vice-Chancellor
(Academic), University of East Anglia
— Mr Steve Wood, Head of Policy Delivery,
Information Commissioner's Office
Background
The Independent Climate Change E-Mails Review
("Muir Russell Report"), released in July 2010, recommended
that the Information Commissioner's Office (ICO) and the Higher
Education (HE) Sector re-engaged with each other around the Freedom
of Information Act 2000 (FOIA) and the Environmental Information
Regulations 2004 (EIR).
Following a preliminary meeting on 22 July 2010
between the ICO and representatives from the HE Sector, it was
agreed to organise a sector/ICO roundtable to kick off work towards
enhanced guidance for the sector on working within the FOIA and
EIR.
The meeting on 29 September was that roundtable,
brought together by Universities UK (UUK) under the chairmanship
of Professor David Eastwood, who had volunteered for this role.
The individuals invited were selected to ensure representation
from a cross-section of universities and sector organisations
with an interest in this area.
The agreed agenda for the meeting focused on
issues of research data, teaching materials, intellectual property
rights, commercial interest and proactive dissemination. Three
cases were highlighted as of particular concern to the sector:
the "climate e-mails" case from the University of East
Anglia (UEA) which were the subject of the Muir Russell Report;
a decision with regards to releasing teaching materials from a
BSc Homeopathy course from the University of Central Lancashire
(UCLAN); and a decision with regards to releasing a longitudinal
set of tree ring data from the Queen's University Belfast (QUB).
Discussion
All parties welcomed the opportunity to begin
a dialogue about the HE sector and freedom of information.
SW from the ICO provided a summary of the three
cases of most concern to the sector. In particular he focused
his comments on areas of further action and key learning points
from these cases.
Further to this summary, DE opened the floor.
The resultant discussion covered all the topics listed for discussion
in the agenda.
During this discussion, the ICO representatives
made a number of germane points.
— The ICO is a regulator which implements
and does not make the law. The ICO's role is to ensure that institutions
which the law defines as "public authorities", which
for the purposes of this law include all universities receiving
public funding, adhere to the letter and the spirit of the law
as written. The ICO can also work with the sector to assist it
in understanding the implications of the law, including both its
requirements and the protections it already affords.
— The assumption of the FOIA and EIR is
for release of information. Where a public authority believes
information should be exempt from disclosure under the Act and
that such disclosure would be against the public interest and
the onus is on the public authority to make the case for rejecting
a request. The ICO will rule based on the case put forward by
the public authority; it will not make the case for the public
authority.
— Each case which comes before the ICO
and the Information Tribunal (IT) is considered on its own merits,
and it is difficult to draw blanket inferences from previous cases.
The ICO urges public authorities to consider carefully the specifics
of each case, rather than trying to construct a case to reject
a request based on general principles or assertions.
— Public authorities should respond to
cases brought to the ICO or the IT in a timely and considered
manner. Universities should deploy their strongest and best arguments
at the earliest possible stage in the process.
— Competitive market and commercial interests
— The ICO recognises that universities
operate in a global competitive context which may be different
from the context of other organisations affected by FOIA and EIR.
— The ICO accepts the finding of the Information
Tribunal (IT) in the UCLAN case that universities can have commercial
interests, not just financial interests.
— The existence of a commercial interest
or competitive environment alone is not enough to warrant exemption
from release of information such as teaching materials. Decisions
are made on a case-by-case basis, and universities must demonstrate
the reality of potential commercial harm to them in each case
by release of such information.
— There is no definition of "research
data" currently in the law. The Muir Russell report encourages
the ICO to look at the US example in this area, including the
"Shelby amendment".[10]
The ICO has investigated this, but the example itself is not straightforward
due to the complex federal legislative environment in the US.
Additionally, any change along these lines would require a change
to the primary legislation. Currently, any information held by
a university (including laboratory notebooks, simulations, etc.)
is subject to the FOIA/EIR.
— The ICO acknowledged that further work
needed to be done around understanding IPR as it resides in research
data, and SW confirmed that his team has already begun to explore
this question.
— Existing protections within the law:
their potential and limitations
— Several exemptions weigh the public's
right to know against the public authority's interest in not releasing
information, and judgement calls must be made in cases using these
exemptions. Universities should recognise that the outcome of
certain cases may be strongly influenced by the public's right
to know about the subject matter in question.
— There are acknowledged tensions between
the Data Protection Act (DPA) and the FOIA/EIR. The onus is on
the public authority to implement the requisite checks and controls
to ensure that DPA is not breached by release of information under
FOIA/EIR.
— Conclusive proof does not exist around
the alleged "chilling effect" of FOIA/EIR around management
discussions. In some instances it is possible to use s 36 of FOIA
("prejudice to the effective conduct of public affairs")
to avoid release of information pertinent to live and sensitive
management discussions, although there must be judgement calls
made about when a discussion moves from "live and sensitive"
to "in the past" when disclosure of the information
should be made.
— The Muir Russell report suggests that
there may be better strategies for universities to cope with sustained
campaigns of the sort UEA experienced. The ICO would like to work
with universities around this area.
— Further discussions may also be useful
to elaborate what is covered by s 22 of FOIA ("intent to
publish") within the academic context.
— The law assumes that information being
released under FOIA and EIR is going into the public domain, so
the identity of the individual requesting the information is not
pertinent to any decision around release of information. Information
released under the FOIA or EIR is subject to and protected by
existing Copyright laws.
— The sector has an existing initiative
to openness and collaboration, as evidenced by the Open Access
and Open Data agendas implemented through the research councils.
— The ICO encouraged sector initiatives
that might provide further guidance for universities around complying
with FOIA and EIR in general and around specific relevant issues
concerning research data and outputs and teaching materials. JISC
and the Research Councils have done work in this area and greater
collaboration with the ICO in this area could be productive.
DE noted the following items emerging from the
discussion.
— The role and use of research data
— The public has an interest in universities
contributing to the UK's economic and reputational standing globally.
Open data-sharing at too early a stage of research could dissuade
international collaborators from working with UK colleagues, which
would weaken UK research and "UK plc". It could also
remove the internal incentives for researchers, resulting in less
innovative research with less long-term impact.
— Lessons to draw from recent experience
— Although there have been some recent
cases which have caused concern for universities, there have been
other cases where the ICO and/or the IT have upheld the universities'
arguments.
— Universities can draw on various exemptions
if they believe it is necessary to reject information requests,
and they must expect that these approaches to the exemptions will
be tested.
— Management functions versus academic
functions of universities
— While the academic core of university
functions (as defined largely by research and teaching) is quite
different from the core work of other "public authorities"
as defined by the law, the management aspect of universities arguably
has more parallels with public sector bodies. This distinction
may be useful in shaping the discussion around FOI/EIR guidance
for the HE sector.
— Effective use of the existing legislation
— Universities are increasingly expected
to contribute to UK plc, as has been made explicit in recent policy
speeches (eg, Vince Cable speech of 8 September 2010). Ensuring
a level of protection around research data and teaching materials
may be an important aspect of ensuring that universities can meet
this political imperative, but it must also be established that
universities are deploying effectively the full protections already
existing within the law.
— Establishing a robust publication scheme
will be an element in demonstrating that universities are seeking
to operate within the spirit of the law. ICO encourage sector
involvement in elaborating the publication scheme. However, issues
around research data and IPR must be explored in more detail before
productive attention can be paid to a revised publication scheme.
Actions
It was agreed to establish a working group representing
the HE sector to work with the ICO in developing sector-led and
sector-specific guidelines around the issues of research data,
teaching materials and IPR.
After this work has been concluded, then the
group might work with the ICO to inform any proposed amendments
to the existing sector publication scheme in order to consider
whether a framework for proactive dissemination of research data
and /or teaching materials which still protected universities'
necessary interests might be feasible. Research council initiatives
around open access might provide a model in these discussions.
The ICO and Universities UK, working with JISC,
RIN and other key stakeholders, have agreed to take this process
forward.
9 http://www.ico.gov.uk/¥/media/documents/decisionnotices/2010/FER_0238017.ashx Back
10
Independent Climate Change E-mails Review Report (2010), pp 94-95
in particular. The US "Shelby Amendment" in 1998 required
all data produced under federally funded research to be made available
under the US Freedom of Information Act. After discussion with
the scientific community, the final guidelines gave a precise
definition of "research data" as "the recorded
factual material commonly accepted in the scientific community
as necessary to validate research findings, but not any of the
following: preliminary analyses, drafts of scientific papers,
plans for future research, peer reviews, or communications with
colleagues". Back
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