Justice CommitteeWritten evidence from the University of London

1. Executive Summary

1.1 The University is required to be transparent and accountable as part of its day-to-day business, both as a charity and as a University with a global profile.

1.2 In 2011, the University has received double the FOIA requests it received in 2010.

1.3 The University has concerns about the increasingly “non-public” nature of its funding and its status as a “public authority” under the Act. In particular, concerns about private competitors using the Act to obtain commercially sensitive information eg procurement, service contracts, business plans and operational metrics.

1.4 The University feels that the specific challenges facing the Higher Education Sector around FOIA have not been given adequate attention by the Information Commissioner, though the situation is improving.

1.5 The University supports the draft “research exemption” submitted by Universities UK as part of the Protection of Freedoms Bill but would like to see further exemptions eg exemption for all non-publically funded activity.

2. About the University of London

2.1 The University of London is a federal organisation and is one of the oldest, largest and most-diverse universities in the UK. It consists of 18 autonomous Colleges of outstanding reputation together with a number of prestigious Central Academic Bodies and Activities. The latter are collectively known as the “central University”; together they serve and support both the interests of the Colleges and the broader achievements of UK higher education.

2.2 This evidence return is made on behalf of the “central University” and does not represent the view of the constituent colleges. Further details on the structure of the “central University” can be found at the following link: http://www.london.ac.uk/structure.html

3. Consultation Questions

3.1 The Committee has invited written evidence on the issues set out below:

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?

3.2 The four objectives of the Freedom of Information Act (FOIA) outlined in the Memorandum to the Justice Select Committee are as follows:

(a)Openness and Transparency.

(b)Accountability.

(c)Better Decision Making.

(d)Public Involvement in Decision-Making.

4. The University’s Existing Commitment to Transparency

The University is required to be transparent and accountable as part of its day-to-day business, both as a charity and as a University with a global profile. The University publishes its ordinances and regulations, financial reports and governance minutes as a matter of routine. The outcome of the University’s external quality assurance is also regularly placed in the public domain. As well as statutory obligations, this is part of the University’s need to present itself as a world-class institution and attract students from all over the globe.

5. The Increase in FOIA Requests

The University has received a steady increase in the number of FOIA requests since the introduction of the Act. A sharp rise in 2011, when double the number of requests in 2010 was received, demonstrates the increasing amount of work required to meet the obligations of FOIA. The University has maintained 100% compliance but a continued increase of this proportion year upon year would be unsustainable over a long period.

6. The Nature of Our funding and FOIA

The increasingly “non-public” proportion of our funding has made many in the HE sector question whether Universities should be classed as public authorities under the Act and therefore subject to FOIA. As our Annual Report and Financial Statement demonstrates:

The University’s own dependence on public funding is substantially less than most other UK Universities. The financial statements for the current year demonstrate this: funding from HEFCE accounted for 8.2% of total income and, when to this is added the contributions from the Colleges of £9.1 million, the total direct and indirect reliance on public funding amounts to 14.4% of the total income of £146.8 million. The English average for grants from HEFCE as a percentage of total income by comparison is around 34%.1

As the cost of higher education is increasingly to be directed towards the student rather than the government, Universities cannot be expected to face the same regulatory burden and level of scrutiny as befits a central government department or local authority. The long-term prospects of more “private sector” providers of higher education could create a two-tier situation where some Universities are subject to FOIA and its associated costs, whereas others can divert these resources back to core services such as teaching or research.

7. The Benefits of FOIA

The Freedom of Information Act has allowed journalists, businesses and the general public to access a wide range of information about Universities. Whilst this information can often result in negative or subjective media coverage, the University accepts that it also expands public understanding of the complexity and challenges of our work. Section 46 of the Freedom of Information Act also provides a legislative driver for more effective records management policies and procedures, which has benefitted the internal business processes of the University.

8. The Need for Exemptions

8.1 The use of exemptions by the University is still relatively rare and most requests are responded to in full. However, in a climate of decreasing public funding, the University questions the appropriateness of FOI in relation to its non-publically funded activities. Particularly when commercial competitors are not bound by the legislation.

8.2 The proposed “research exemption” submitted by Universities UK as part of the Protection of Freedoms Bill would be a significant safeguard for Universities in FOIA. The nature of research data, and the competitive international environment in which it is produced, cannot be treated in the same way as government “data sets” such as those published as a resource on sites such as http://data.gov.uk. Therefore the University supports this amendment to the existing FOIA regime.

9. The Status Of Universities with the ICO

9.1 It can appear that Universities have been an afterthought to the Information Commissioner and other information rights policy makers. Many centralised standards and decisions are led by a central or local government focus. This even persists in the current Memorandum.

9.2 The high-profile ICO decision notices involving Universities—University of Central Lancashire and its course material, the research data held by Queen’s University Belfast2—have not recognised the more nuanced commercial interests and working practices of Universities. This has led to widespread anxiety in Universities about the impact of FOIA on their teaching and research in a competitive environment.

9.3 The ICO guidance for Higher Education around FOIA, published in September 2011,3 was welcome in addressing some of the specific concerns of the sector. The developing dialogue between Universities and the ICO can only improve this relationship. It is hoped that this can make Universities more confident in exempting information that is commercially sensitive or prejudicial to the conduct of their public affairs without the fear that the ICO would order disclosure.

10. Calculating Appropriate Limits under Section 12

The grounds for refusal in Section 12 of the FOIA, “exceeding appropriate limits”, provides a vital safeguard for public authorities. It is often used as the basis for narrowing down requests for information with requesters. One issue that would make this more appropriate to the challenges inherent in the Act is the ability to include “redaction” in the calculation of the 18 hours. Currently public authorities are only allowed to consider the following:

determining whether we hold the information (this can include meeting and discussion);

locating the information, or a document containing it;

retrieving the information, or a document containing it; and

extracting the information from a document containing it.

The redaction of information in response to a request often concerns the identification and removal of “personal information” or “commercially sensitive” information. Therefore it is a task for information compliance staff or a senior member of staff with a grasp of both FOIA issues and the nature of the information for disclosure. Redaction is often the most time intensive part of responding to a request.

January 2012

1 University of London, Annual Report and Financial Statements 2010-11: Central Institutes and Activities
http://www.london.ac.uk/fileadmin/documents/about/governance/financial_report/ULRA_2011_single.pdf, p 15.

2 Information Commissioner, Decision Notice FS50140374, March 2009
http://www.ico.gov.uk/upload/documents/decisionnotices/2009/fs_50140374.pdf
and Information Commissioner, Decision Notice FS50163282, March 2010
http://www.ico.gov.uk/upload/documents/decisionnotices/2010/fs_50163282.pdf.
The University was instructed by the ICO to disclose the request for information under the Environmental Information Regulations 2004.

3 Information Commissioner, Freedom of information legislation and research information: guidance for the higher education sector (September 2011)
http://www.ico.gov.uk/news/latest_news/2011/ico-issues-advice-on-the-disclosure-of-research-information-26092011.aspx

Prepared 25th July 2012