Justice CommitteeWritten evidence from the University of Salford

1.1 Executive Summary

1.2 It is the University of Salford’s view that serious consideration should be given to removing Universities from the ambit of the Freedom of Information Act because they are not “Public Authorities” in view of the now relatively small proportion of public funding to British Universities. Instead, robust and clear guidelines of best practice in access to information should apply.

1.3 In the event that Universities continue to be subject to the Act the University of Salford submits that its operation would be markedly improved in certain operational aspects. These areas are:

the elements of dealing with a request which are included in the calculating whether a request has exceeded the Appropriate Limit;

the definition of and demonstration of vexatious requests;

the consideration of commercial interests;

the interaction between the FoIA and the Data Protection Act 1998;

proactive disclosure of information; and

the dealing with “commercial” requests.

2.0 Does the Freedom of Information Act work effectively?

2.1 Please see our comments below.

3.0 What are the strengths and weaknesses of the Freedom of Information Act?

3.1 S12 Exemption where the cost of compliance exceeds appropriate limit

3.1.1 The Appropriate Limit of £600 for Central Government was decided upon to provide parity between the amount of work permitted for a FoI request and that for a Parliamentary Question (PQ). However, while MPs may make many PQs, there are only 660 MPs whereas there are millions of potential FoI requesters and many more requests are made under FoI than there are PQs.

3.1.2 The activities costed under The Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004 are too restricted and do not include some of the most time consuming elements of dealing with FoI requests. Simply reading and considering whether exemptions apply can take days but this activity does not count towards the Appropriate Limit.

3.1.3 Redacting does not count either and this element of a request can take significantly more time than the rest of the elements of dealing with the request put together. A recent request received by the University of Salford (which, in the end, was amended by the requester due to the high cost of disbursements) would have involved the redaction of multiple sections from every page of a document of some 4,000 pages which would have taken weeks to undertake at considerable expense to the University.

3.1.4 If the Appropriate Limit is to include the administrative costs of extracting the information from documents containing it, it would make sense that the administrative costs of redacting exempt information from the documents to be released should also be included.

Recommendation

3.1.5 That the administrative costs of considering exemptions and the administrative costs of redacting exempt information are included in the calculation of the Appropriate Limit.

3.2 S14 Vexatious or repeated requests

3.2.1 The University has significant experience of the use of this section having received a large number of vexatious requests. To put these into context, the University received around 120 requests from around a dozen requesters in a three month period. The University deemed these requests to be related, aimed to cause inconvenience and part of a wider campaign of disruption being waged against the University. At the time our normal number of requests per year was around 80. Most of the people making these requests asked for an internal appeal, four complained to the ICO and one took the ICO decision to the Tribunal and having lost at each stage requested an appeal against the tribunal finding which was denied.

3.2.2 In one instance the length of time from the receipt of the first request to the decision being made by the First Tier Tribunal was 21 months. The number of staff involved, the time and money spent on dealing with a, these requests, b, the internal appeal, c, the investigation made by the ICO after it received complaints by the requesters and d, the tribunal proceedings were significant and diverted staff and resources from the normal work of the University. The University’s experience is that it takes more time and effort to demonstrate vexatiousness under the current legislation than it does to respond to a vexatious request. It is the University’s view that the resource implications of using s14 severely reduce the amount it is used with the result that genuinely vexatious requests are dealt with because, despite the significant inconvenience and disruption, this takes less resource than having to deal with subsequent investigations by the ICO.

3.2.3 The amount of information required and level of evidence of vexatiousness required by the ICO is, in our view, too high and it was only as a result of our persistence, and the efforts of dedicated staff that we received a ruling in our favour from the ICO which was subsequently supported by the Information Tribunal, establishing a test case for what the Tribunal described as a “denial of service attack”. Please refer to the Employment Tribunal findings on this recent case:
http://www.informationtribunal.gov.uk/DBFiles/Decision/i554/20110726%20Decision%20EA20110060%20%28w%29.pdf

3.2.4 The University’s conservative estimate is that this particular case cost the University in excess of £75,000 in staff time alone, plus substantial legal fees.

3.2.5 While the University accepts the general principle of FoI being purpose blind and the identity of the requester being irrelevant, in the case of vexatious requests and such requests coming from one or more requesters as a campaign, there needs to be a clear process for categorising these requesters as vexatious.

Recommendation

3.2.6 That there is a reconsideration of the rules associated with S14 to make it simpler for Public Authorities to make a compelling case for deeming a request to be vexatious.

3.3 Commercial Interests

3.3.1 The Act, and its current interpretation by the ICO, does not sufficiently recognise the impact on University commercial activities in that it places too high a burden on Public Authorities to demonstrate a prejudice or likely prejudice to its commercial interests especially in areas of research and intellectual property.

3.3.2 In the Higher Education sector, Universities are now funded more from non public funding than from public funding with the proportion of public funding set to decline even further in the next few years. This has an impact on the release of financial, contractual and other related information as well as what could be regarded as intellectual property.

3.3.3 Intellectual property is the University’s core product, be it relating to teaching and learning or to research. The disclosure of this information to the public domain has the potential to put the University at a commercial disadvantage: having spent its income creating this intellectual property but then being unable to, or likely to find it very difficult to protect this intellectual property from being exploited by others including competitor organisations if released.

3.3.4 This is not intended to create a defensive wall behind which the HE community can hide: the University is committed to open access and the University of Salford is at the vanguard of the open access movement but on occasion it is vital, in the interests of the University and those of the public, that some data is withheld. The distinction between academic open access and FoI open access is clearly understood and supported by the University but decision notices in this area appear to demonstrate a lack of similar understanding by the ICO.

3.3.5 On many occasions, the ICO has failed to recognise the unique circumstances around the intellectual capital of University teaching, and more importantly, research materials and in the increasingly competitive nature of HE, it could very easily become commonplace for Universities to have their material poached by competitors through the offices of the FoIA.

3.3.6 Despite the comments of the Minister of State on this matter to the Grand Committee of the House of Lords when it considered Amendment 151 (as introduced by Baroness Warwick of Undercliffe, Chief Executive of Universities UK on behalf of the HE sector) of the Protection of Freedoms Bill, it is the view of Universities in the country that the Freedom of Information Act is unable to protect intellectual property created and held by Universities.

3.3.7 The University notes that the arrangements set out in the Scottish Legislation (section 27(2) of the Freedom of Information (Scotland) Act 2002 (FoI(S)A)) provide clarity on this position.

Recommendations

3.3.8 That ICO takes a different approach and is sensitive to the commercial nature of some information held by Public Authorities, especially those which operate in a commercial field. That an additional exemption is included in the Act to cover research as previously recommended by Universities UK and as included in the FoI(S)A.

3.4 S40 Personal information

3.4.1 Recent cases that the University has experienced demonstrate that there is confusion due to the complex nature of the crossover between the FoIA and Data Protection Act 1998 (DPA) and this grey area where the two Acts interrelate requires simplification and clarification.

Recommendation

3.4.2 That the interaction between the FoIA and the DPA is clarified and simplified.

4.0 Is the Freedom of Information Act operating in the way that it was intended to?

4.1 Proactive disclosure

4.1.1 While the idea of proactive disclosure via the Publication Scheme is a very powerful aspect of the Act, the attitude of the public and public authorities, together with the information searching and provision capabilities of the internet have superseded the premise of a Publication Scheme.

4.1.2 The HE sector is one of the most open of the sectors of public authority subject to FoIA and the University is committed to proactive disclosure of information. Evidence of this can be seen in our updated Disclosure Log which includes all requests received, responses and disclosures. Nevertheless it has reservations regarding the obligation to adopt a publication scheme.

4.1.3 The 2004 HE Model Publication Scheme was largely fit for purpose since it was appropriate and applicable to the HE sector. The subsequent consultation for the next incarnation of the HE Model Publication Scheme was conducted in a manner which indicated that the revised Model Scheme would also be fit for purpose. However, the results of the consultation were abandoned by the ICO and it instead decided upon a single model scheme for all 100,000 public authorities.

4.1.4 This resulted in a “best fit” scheme which is not tailored to the needs of any sector and since its roll out, the Act’s Publication Scheme principle has become less useful and therefore nothing more than an administrative burden.

4.1.5 After monitoring our internet logs, we observe that our Publication Scheme is seldom accessed. This is not surprising as Publication Schemes are not comprehensive descriptions of the information we publish. The reality is that all records within a particular description can never be published in their entirety due to their magnitude, the complex nature of records and the fact that exempt information will be contained in a great proportion of them. The records released are only ever going to be subsets of what falls under the description for each category. This effectively makes a publication scheme useless.

4.1.6 Regular updates of the Publication Scheme are time consuming; it is difficult to keep the Scheme up to date and impossible to ensure that it is as comprehensive as it should be.

Recommendation

4.1.7 That the purpose, usage and resource requirements of Publication Schemes are examined and a less time consuming and useful alternative is introduced.

4.2 Commercial requests

4.2.1 There are a large number of requests submitted by commercial organisations that are simply fishing for information to enable them to bid or compete for work. These are time consuming to deal with by sheer dint of the number received.

4.2.2 These commercial surveys are not made for any of the purposes for which the FoIA was enacted (viz: openness and transparency, accountability, better decision making and public involvement in decision-making) and are being used by commercial organisations as a free mechanism to obtain commercially useful information at the expense of the public purse.

Recommendation

4.2.3 That round robin commercial survey/fishing requests are no longer deemed to be requests made under the Act or that a charge for time taken to respond can be levied prior to the disclosure of the requested information.

January 2012

Prepared 25th July 2012