Justice CommitteeWritten evidence from Newcastle University

Summary

1. In June 2008, Newcastle University received a freedom of information request from the British Union for the Abolition of Vivisection (“BUAV”) which asked for disclosure of the information contained within the project licences, issued under the Animal (Scientific Procedures) Act 1986 (“ASPA”), which governed the primate research undertaken at the University that was discussed in certain published articles.

2. Newcastle University refused to disclose the project licences, in reliance on a number of the exemptions within the Freedom of Information Act (“FOIA”). It was understood that disclosure of any of the information contained in the project licences would be a criminal offence under section 24 of ASPA, which provided a statutory bar to disclosure and so the exemption in section 44 of FOIA applied. Clause 24 makes it a criminal offence to disclose the project licence information for purposed other than those of following ASAP. This seemed to us to be conclusive—that we had statutory bar on the release of project licences and therefore the FOI did not apply and this was supported by the Information Commissioner.

3. The other exemptions claimed were that disclosure of the information would prejudice the health and safety of University staff and students (section 38 FOIA) and would prejudice the University’s commercial interests (section 43 FOIA).

4. Following a series of appeals to the Information Commissioner’s Office (“ICO”), the First Tier Tribunal and the Upper Tribunal, Newcastle University was ordered to disclose redacted versions of the project licences to BUAV. It was found that section 24 of ASPA was not a statutory bar to disclosure, but that some information could be withheld under section 38 and section 43 of FOIA.

5. The Home Office confirmed that they did not consider it in the public interest to bring a prosecution under section 24 of ASPA as long as the disclosure was in accordance with the order of the Tribunal. They reserved their right to review this position. This suggests that any university carrying out animal research that receives a similar request for copies of project licences will be forced to incur the expense of appeals to the Tribunals until it is ordered to disclose the licences, otherwise it may still face prosecution under section 24 of ASPA.

6. This case has cost the University over £250,000 in legal fees alone. It has placed a considerable strain on a number of key individuals who hold specific responsibilities under ASPA. It is deeply regrettable that conflicts in legislation are left to such test cases to resolve. It was known when FOI was introduced that there would be a good deal of interest in the scientific work on animals and more care should have been taken in drafting the legislation to avoid the legal ‘catch 22’ situation that has arisen.

Recommendations

7. It is recommended that the conflict between ASPA and FOIA is resolved so that universities do not have to rely on the order of a Tribunal as protection from prosecution under section 24 of ASPA.

8. As a wider issue, the Government should proactively attempt to identify and resolve any other conflicts between FOIA and existing law, rather than relying on an educational charity bearing the costs of challenges through the tribunal system.

9. The ICO should make a judgement on all claimed exemptions when issuing decision notices, to avoid repetitive and costly tribunal hearings.

The Initial Request

10. The original request from BUAV was received on 10 June 2008. It asked for disclosure of the information contained within the project licences that governed the research carried out in three named published articles. There were two project licences relating to these articles.

11. Newcastle University refused to provide the information requested, relying on four grounds of exemption under FOIA:

Section 12—where cost of compliance would have exceeded the appropriate limit of £450.

Section 38—where disclosure would endanger the mental or physical health or safety of University staff and students.

Section 43—where disclosure would prejudice the commercial interests of the University.

Section 44—where there is a statutory bar on disclosure. In this case, section 24 of ASPA would make it a criminal offence to disclose any information from the project licences.

12. Section 24 of ASPA states that:

A person is guilty of an offence if otherwise than for the purpose of discharging his functions under this Act he discloses any information which has been obtained by him in the exercise of those functions and which he knows or has reasonable grounds for believing to have been given in confidence.

A person guilty of an offence under this Section shall be liable:

(a)on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both;

(b)on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum or to both.

13. The University’s reliance on these exemptions was upheld on internal review, and so BUAV appealed to the ICO for a review of the request.

The ICO Decision

14. The ICO issued its decision notice in March 2010 and concluded that the licences were not actually held by the University for the purposes of FOIA. The licences were only held by specific statutory post holders in a personal capacity under ASPA (the ‘Named Veterinary Surgeon’ and the ‘Project Licence Holder’) for the purpose of carrying out their statutory roles.

15. The ICO also decided that, even if the licences were held by the University, disclosure would be a criminal offence under s24 of ASPA. Therefore, the section 44 exemption would apply and the licences should not be disclosed.

16. The ICO did not go on to consider the grounds of health and safety and commercial interests. This proved to be a costly omission for the University.

Tribunal Decisions—Preliminary Issues

17. BUAV appealed against this decision to the First Tier Tribunal (Information Rights). The appeal was heard at an oral hearing in September 2010.

18. The Tribunal concluded that the licences were held by the University. The Tribunal felt that the licences were not held by the statutory post holders in a personal capacity, but in specific roles as employees of the University. Therefore, the University must hold the licences for the purposes of FOIA.

19. The Tribunal also concluded that section 24 of ASPA would not prevent disclosure of the licences under FOIA. They reasoned that as the University, through the statutory post holders, was responsible for creating the information, it could not be said to have obtained the information in confidence. Therefore there could be no offence committed if the University was to disclose the information under FOIA.

20. The University appealed this decision to the Upper Tribunal, with a hearing held on 21 April 2011. The appeal was dismissed, and the Upper Tribunal confirmed the decision of the First Tier Tribunal.

Court of Appeal

21. The University applied for leave to appeal the Tribunal’s decision to the Court of Appeal on both of the preliminary issues. In a decision dated 29 June 2011, the Tribunal granted leave to appeal to the Court of Appeal on limited grounds, with respect to the criminal offence at section 24 of ASPA only. Leave to appeal was not granted with respect to the issue of whether or not the information was held by the University.

22. On 7 June 2011, the University received the personal view of a Home Office Inspector on the possible disclosure of the project licences under FOIA. Her view was that if there was release of the information held within either of the two project licences, there would have been an offence committed under section 24 of ASPA, by one (or more) of the statutory post holders. She felt that she would be obliged to report to the Secretary of State that section 24 of the Act had not been complied with, and to advise him on the action to be taken regarding the people involved in the release.

23. The University made contact with the Home Office to request an official view and to determine what their position would be if the University applied for them to be joined as an additional party to the appeal. The Home Office reply, dated 20 July 2011, stated that their position was that any statements they make about section 24 of ASPA are fact specific, and as they hadn’t been involved in the case they would rather not make any comment. On the second point, they stated that the Secretary of State had no current plans to apply to join the proceedings, but that they would consider the University’s application on its merits at the appropriate stage.

24. The University applied to the Court of Appeal for additional leave to appeal on the grounds of whether or not the information was held, and also applied for the Home Office to be joined as an additional party to the appeal.

25. In an order of the court dated 11 November 2011, the Court of Appeal refused permission to appeal on the grounds of whether or not the information was held. The court also refused permission to join the Home Office as an additional party. The Home Office had also given the view that they might well not actively participate in any event.

26. Given the Tribunal view that there could be no criminal offence if the information was held by the University, the prospect of success on the limited grounds was low. The University decided not to pursue this option any further and accepted the views of the Tribunals.

Tribunal Decision—FOIA Section 38 and Section 43

27. As the ICO had not made any decision on the application of the exemptions for health and safety (s.38) and commercial interests (s.43), a further First Tier Tribunal hearing was arranged to consider these issues. This hearing took place on 5 and 6 September 2011.

28. This Tribunal’s decision was that redacted versions of the licences should be disclosed. The Tribunal agreed to the redaction of details of unimplemented research ideas, to protect the University’s commercial interests, and a small passage that could result in the endangerment of the health and safety of individuals.

29. It was the order of this Tribunal under which the University disclosed redacted versions of the project licences to BUAV on 8 December 2011.

30. Immediately prior to this disclosure, the view of the Home Office was sought as regards to whether or not they would seek prosecution in this case. The view finally received was that the Home Office do not have exclusive jurisdiction to prosecute under section 24 of ASPA but that they could not see that it would be in the public interest to prosecute in this case as long as any disclosure was strictly in accordance with the order of the Tribunal. They reserved their right to review this.

31. The position of the Home Office does leave open the prospect of prosecution in future cases involving FOIA requests for project licences granted under ASPA. It appears that it is only the order of a Tribunal that would provide protection from prosecution. Newcastle University incurred legal costs of over £250,000 through this process. It would seem more appropriate for the apparent conflict between FOIA and ASPA to be resolved, rather than to expect universities to incur significant costs on tribunal hearings should similar requests be received in the future.

January 2012

Prepared 25th July 2012