Justice CommitteeWritten evidence from the University of Westminster

Executive Summary

1. The Freedom of Information Officer at the University of Westminster offers evidence of concerns that relate to:

(i)The application of the Act to Higher Education Institutions (HEIs).

(ii)The use of HEI resources to support private needs rather than public interest.

(iii)How public authority fees regulations impose a heavy burden oh HEIs and how actual costs are likely to be unknown and rising.

(iv)How the current Information Commissioner’s Office (ICO) guidance on the use of pseudonyms by requestors advises only considering the nature of the information requested rather than also wider issues relating to avoiding the correct estimation of costs and possible vexatious activities.

(v)How the current ICO guidance on vexatious requests represents a very high burden on HEIs before a request is considered to be vexatious and does not offer an early opportunity for HEIs to challenge behaviour that, with their limited resources, can be disproportionately disruptive and harmful.

(vi)The anomalies that exists when considering the disclosure of personal information under the Freedom of Information Act 2000 (FOIA) and the same information under the Data Protection Act 1998 (DPA) Data Subject Access provisions.

2. Whilst it is recommended that the application of the Act to HEIs would benefit from a regular review and statement of HEIs public authority status under the Act, other areas of concern would benefit from further consideration of regulations and guidance specifically for HEIs in relation to:

(i)Limiting the diversion of scarce University resources to supporting private information needs.

(ii)Reviewing fees regulations in relation to requests to HEIs.

(iii)Reviewing ICO guidance on the use of pseudonyms by requestors and how vexatious requestors are identified in the HEI public authorities.

(iv)Addressing anomalies that exist in considering the disclosure of personal information between the FOIA and the DPA.

Introduction

3. As the University of Westminster’s Freedom of Information Officer since December 2007, I have been well placed to observe and enact the provisions of the Freedom of Information Act 2000 (FOIA) as they affect my organisation, other Higher Education Institutions (HEIs) and more generally the Higher Education sector. From January 2008 to December 2011 the University has received and responded to a total of 354 Freedom of Information requests, for which I have had operational responsibility.

Factual Information

HEIs Public Authority Status

4. The University of Westminster is a registered charity and company limited by guarantee. Full details can be seen at http://www.westminster.ac.uk/about-us/organisation-and-running-of-the-university/charitable-status

5. Since 2005, the status of the University and other HEIs as registered charities and companies limited by guarantee and their status as a “public authorities” under the FOIA has not been subject to any specific review or statement as to the logic, consistency and desirability of such a situation. The University of Westminster would welcome, especially in the rapidly changing landscape of HEI funding and sources of income, regular reviews of the public authority status that HEIs have under the FOIA and public statements as to the reasons and desirability of such a position.

Openness and Transparency—University Resources Diverted to Support Private Interests

6. The University of Westminster has been subject to the FOIA since 2005. During the initial years, 2005 to 2008 there was a gradual increase in requests received, from 22 to 47 a year. However, since January 2009, the University has seen an 86% increase in FOIA requests. From a total of 72 FOIA requests in 2009, to a total of 135 FOIA requests in 2011.

7. Whilst FOIA requests from individuals are on the increase, a significant proportion of FOIA requests received by the University of Westminster have originated from the media, commercial organisations and campaign or pressure groups.

8. In 2011 journalists, commercial organisations and campaign groups were responsible for 48% of all FOIA requests received by the University. If this group were to include trade unions, a majority of 52% of all requests in 2011 would come from these organisations.

9. This means that rather than serve the public interests and concerns of individuals holding a public body to account, the FOIA and its associated costs, are increasingly being placed at the service of groups who often have narrow, commercial or very self-interested objectives.

10. In the case of the media, some requests can have the appearance of a “fishing expedition”, without any grounds or previous evidence that anything is amiss or that there is indeed any public disquiet or interest in the areas of information requested. These speculative requests divert scarce University resources and do little to inform public knowledge or debate.

11. The key issue in these and other FOIA requests is costs. No funding received by the University is “ring-fenced” for enabling the provisions of the FOIA and therefore resources intended for other purposes, such as student support, have to be diverted to service FOIA requests.

Fees Regulations

12. The current FOIA regulations and fees allow for a maximum of around 2.5 days of effort from the University to be spent on locating, retrieving and extracting the required information for any one request. No other related activities, the consideration of applicable exemptions, the placing of the information in a meaningful context or the creation of response communications can be taken into account.

13. Additionally, in a complex organisation like a University, with a number of functions often operating in different physical locations, estimating effort or accounting for actual effort expended on any request is often impossible in reality. It would be true to say that the actual costs, which are likely to be rising, are not known for the operation of FOIA in Universities.

14. And as a majority of our FOI requests in 2011 came from bodies who may not have a wide public interest focus, it would be probably true to say that the associated costs to the public have not been matched to any real increase in information of public interest disclosed to inform public debate.

Use of Pseudonyms

15. In 2011 the University of Westminster was subject, like a number of other institutions, to a series of requests from a requestor who used a variety of names or was acting in collaboration with a number of other people. Around 10% of the University of Westminster’s 2011 FOIA requests probably came from this source.

16. Whilst the requirement for the actual name of the requestor is covered by the Act, the related Information Commissioner’s Office guidance asks institutions to consider the information requested in the context for the provision of a real name, not the fact that it is likely to be a pseudonym, potentially being used for a number of purposes not in the spirit of the Act. For example to circumvent the aggregation of costs related to a complex request, or to hide the identity of a serial requestor who has a narrow and personal interest, or actual attempts to annoy or disrupt disguised behind numerous false names and associated email addresses.

17. A great deal of public authority effort can be put into the service of individuals who, like some organisations, are not motivated by any public spirit of holding a public authority to account, but who have a very narrow and sometimes obsessive interest in a particular area, that would not be shared by the public as a whole, or who are motivated by a wish to annoy and disrupt. The Information Commissioner’s Office guidance on the use of pseudonyms is not helpful in these situations.

Vexatious Requests

18. Additionally, the current ICO guidance and tests for a vexatious request, not requestor, are so comprehensive, that a great deal of actual requests, annoyance, disruption and effort need to have been expended before it is likely that a request, not a requestor, can be found to be vexatious. In a sector where resources are scarce, these activities can be disproportionally disruptive at a stage far before they would be considered vexatious under the current ICO guidance. Should HEIs be held to the same scale of abuse, often aimed at only one or two FOI officers or FOI assistants, which other public authorities face with whole departments?

Personal Information—Anomalies between FOIA and DPA

19. The interaction between the FOIA and the Data Protection Act 1998 (DPA) is one of the most complex areas of the FOIA. It also is possible to throw up anomalies, especially when contrasting how information relating to an individual is handled under FOIA and how it might be handled if requested by the individual under a Subject Access Request, with the FOIA including a public interest test, but no such provision being available under the DPA.

Recommendations for Action

20. Consider a regular review of the FOIA public authority status of HEIs, given the rapidly changing HEI funding and income conditions.

21. Consider whether the levels of effort that HEI public authorities are required by the Act to expend on any FOIA request are reasonable, given their resource limitations when put alongside other non-central government public authorities.

22. Look at the types of requestor and consider whether those with a narrow public interest should be the beneficiaries of so much publicly funded effort and related information.

23. Look again at the actions of requestors and the guidance on vexatious requests and see whether these are fair to smaller public authorities and their limited resources.

24. Continue to clarify and inform on the interaction of the FOIA and the DPA, and plan to address some of the anomalies that are present between how identical information is considered for disclosure under these Acts, potentially to the detriment of the individuals concerned.

February 2012

Prepared 25th July 2012