Justice CommitteeWritten evidence from University of Oxford

Brief Introduction to the University

1. The University of Oxford has over 21,000 students, comprising 11,723 undergraduates and 9,327 postgraduates, and over 10,000 employees. External research grants and contracts are the University’s largest source of income, amounting to £376.7 million in 2010–11 (41% of total income). The University consistently has the highest research income from external sponsors of any UK university. Isis Innovation Limited, the University’s wholly owned technology transfer company, has created more than 70 companies, and files, on average, more than one patent application each week. Oxford was placed fourth in the Times Higher Education 2011 rankings of world universities.

Executive Summary

2. The Freedom of Information Act (FOIA) places a significant strain on the University’s resources, and provides inadequate protection against unreasonable and obsessive requesters, who impose a disproportionate burden. It also poses a risk to the University’s ability to conduct world-leading research, particularly in collaboration with private companies, and to raise private funds. Whilst reinforcing the University’s own initiatives to introduce a more open organisational culture, the FOIA has complicated the University’s decision-making process by discouraging staff from expressing themselves openly and honestly in writing. Consequently, it can be an obstacle to good governance.

Structure

3. This submission examines first the impact of the FOIA in the areas of resources, research, fund-raising and decision-making. It then addresses the three specific questions raised by the committee in its call for evidence.

Impact of the FOIA

Resources

Numbers

4. The following table shows the number of requests received by the University, compared with the monthly average for the higher education sector as a whole, as indicated by the annual survey conducted by JISC.

Year

Total number of requests1

Monthly average

Monthly sector average

2005

185

15.4

N/A

2006

158

13.2

3.2

2007

137

11.4

3.6

2008

185

15.4

5.4

2009

201

16.8

8.2

2010

261

21.8

10.6

2011

330

27.5

Not yet available

5. After an initial flurry of requests in the first year of operation, the number tailed off in the second and third years. However, in line with the sector as a whole, the number has risen significantly each year since 2008.

6. The most immediate impact has been an increase in the resources devoted specifically to responding to FOI requests. These have grown from 0.5 FTE in 2005 to 1.5 FTE in 2011, and are planned, subject to the availability of funds, to rise to 2.0 in 2012/13. This cost is not insignificant at a time when the University’s funding is under severe pressure. Equally important is the opportunity cost imposed on those employed to undertake other duties, whether teaching, research or activities that support teaching and research. We are not able to quantify this cost but can provide some illustrative examples:

(a)In the last 12 months, one academic with responsibility for managing admissions to a course has to date spent a total of approximately 30 hours providing information in response to multiple requests from one individual, who feels aggrieved at being rejected for the course some 10 years ago. All but one of these requests related to the course but, because the precise information sought in each case was different, and was far removed from the data produced routinely to meet normal business purposes, each one had to be completed as a separate task and required significant effort.

(b)A request for research data from a large national study, submitted by a company with a commercial interest in the data, disrupted the work of the researchers concerned for a year and resulted in significant legal costs. Further disruption and cost were avoided only because the company decided not to submit a complaint to the ICO, for reasons which appear to have been related to a take-over.

(c)The Undergraduate Admissions Office is staffed to co-ordinate the annual admissions process, to conduct outreach work, to encourage applications from non-traditional sources, and to provide admissions statistics for publication on the University’s website. But it also has to respond to requests for information under the FOIA, which divert resources (approximately 1.0 FTE) from its core functions. Undergraduate admissions has consistently been the single most popular topic for FOI requests and accounted for about a quarter of all requests in 2011.

7. It might be thought that the proactive publication of information would help to reduce the number of requests. This has not been our experience. Since 2005 there has been a sea change in the amount of information published on the University’s website, particularly in respect of admissions (graduate as well as undergraduate) and enrolled students.2 However, this has not led to any reduction in either the total number of requests or the number relating to the subject matter of the published information. This is because requests often involve a variation (however slight) on the published data, for example, requests for applications and offers relating to specific schools. In addition, people probably find it easier to submit a FOI request than to search a website, even when the data in which they are interested is well sign-posted.

Complex or vexatious requests from highly motivated individuals

8. The figures above obscure the fact that most of the resource expended on FOI requests is likely to arise from a relatively small number of complex requests from individuals using the FOIA to pursue a personal or political agenda. The individuals concerned often have a grievance against the institution and are using the FOIA as a means of retaliating against those they feel have wronged them eg the case referred to in paragraph 6(a) above.

9. Some of these requests might reasonably be regarded as “vexatious” and therefore as falling within the scope of Section 14 of the FOIA. However, the threshold set by the ICO for applying this provision is very high. A request must satisfy at least two of the following criteria: it must be obsessive, it must harass the authority, distress staff, impose a significant burden, cause disruption or lack any serious purpose or value. To assemble a case based on these grounds is time-consuming and difficult. Even if one can make a sufficiently strong case, the FOIA provides little incentive to do so, since Section 14 can apply only to the request, not the requester. It enables a public authority to refuse to respond to an individual’s request No. 50 but provides no defence against request No.51. In practice therefore it is easier for an authority to respond to a vexatious request than attempt to apply Section 14.

10. To reduce the burden posed by obsessive and unreasonable requesters, we recommend that where a request is found to be vexatious by the ICO, the public authority concerned should be entitled to refuse any further requests from that individual for a period of six months. This would provide significant respite for the public authority, whilst providing a “cooling–off” period for the individual.

Research

11. The FOIA has made it more difficult for the University to pursue collaborative projects with private companies. Companies worry about the effect that the disclosure of information about a project will have on their business or their ability to exploit intellectual property rights. To try to assuage these concerns, the University has to engage in lengthy and complex negotiations with commercial partners over the treatment of FOIA in research contracts. Recent examples include a large multinational that refused to sign a contract for a studentship worth £24,000 a year; a major UK company that required the University to use its best endeavours to ensure any disclosed information was treated as confidential and to co-operate with it in any action it took to resist or narrow disclosure; and a further multinational that asked for a clause that would allow it to sue the University if it disagreed with its response to a request under the FOIA.

12. If research data is released prematurely and in a piecemeal fashion, before the results have been validated through peer review, there is a real risk that the consequent publicity, which will inevitably involve an element of sensationalism, will lead to inaccurate and misleading perceptions, which could damage the credibility of the research, as well as the reputation of the individuals involved, reducing their chances of obtaining research grants in future. Funders of research in universities recognise that making research data available publicly is a complex issue, which needs to be treated differently from other types of data. The following statement from the website of the Engineering and Physical Sciences Research Council recognises that research data should be released only when it is ready:

“EPSRC expects that research organisations will make appropriate use of the provisions available in the legislation to guard against inappropriate release of research data which might damage the collaborative research process, and work against the national interests of the UK, In this regard, EPSRC views the use of appropriate confidentiality agreements and publication plans as essential elements of research management strategy”.3

13. Section 22 of the FOIA provides an exemption for information intended for future publication. The University has used this on a number of occasions to resist the premature release of information about research projects. However, the exemption provides no defence against requests for the underlying data, since this will not normally be published. The Protection of Freedoms Bill requires public authorities to release raw data proactively by including within their publication schemes any datasets disclosed in response to a request under the FOIA. We anticipate that research will be one area where we will face requests for datasets and that the disclosure of such data, in advance of the completion of a study, runs the risk of damaging that research, for the reason given in paragraph 12 above. To protect the integrity of data and the credibility of the researchers involved, we strongly support amending the FOIA to provide an exemption specifically for pre-publication research data, as exists in the Scottish FOIA. We emphasise that such an exemption should apply only at the pre-publication stage. Once the results of a study have been published, we recognise there may be a public interest in the disclosure of the underlying data.

14. The FOIA also has the potential to undermine the relationship between researchers and those who voluntarily provide their personal data for the purpose of research. Study participants expect researchers to treat their data as confidential and not to disclose it to third parties, particularly where it relates to their health or other areas of life regarded as private. The publication of data in an anonymised form does not provide an absolute assurance of confidentiality. If the data relates to a specific group that is relatively small and potentially identifiable eg people within a particular age range, living within a particular geographical area, during a particular period of time, who contracted a particular disease, it might be possible to identify individuals by cross-referencing the data with other information or knowledge, particularly where the data is being investigated by determined and highly motivated individuals or organisations.

15. Even if confidentiality is assured, there is a risk that people will no longer be willing to volunteer their data if they know it could be used for purposes different or inimical to those for which it was originally provided. An individual who takes part in a study into cancer may not welcome the prospect of their data being made available to companies who have a vested interest in manipulating the data to support a particular conclusion. The controversy surrounding the efforts of Phillip Morris to obtain access to a study into the attitudes of young people to smoking is a good example. The University believes there are likely to be further cases such as this if universities are required to publish datasets relating to research in a premature fashion.

Fund raising

16. Fundraising is of considerable (and increasing) importance to this University and others. The pool of individuals who have both the financial resources to make major donations and the willingness to do so is very limited. An obvious source of “prospects” is those with an existing connection to the University. However, the University also seeks to attract major donors who do not have an existing University connection. It is of course inherently more difficult to attract those without an existing link.

17. The small pool of potential major donors will inevitably face a number of competing claims on their attention. Increasingly, their wealth is likely to be derived from activities on a global scale. Their philanthropy is likewise global, ranging across a number of different countries and different types of recipient. Oxford and other top UK universities face international competition in their fundraising activities, particularly from “Ivy League” universities in the USA.

18. The fact of a donation may well be made public, and indeed a donor may have a strong desire for recognition and publicity. However, the discussions leading to the offer and acceptance of a donation are a different matter altogether. Donors and potential donors expect confidentiality and privacy in their dealings with the University prior to any announcement.

19. In our view any disclosure likely to discourage a donor from giving to a university would harm its commercial interests. It should be possible therefore to apply the exemption in Section 43(2) of the FOIA, relating to information prejudicial to the commercial interests of any person. In our experience, however, the ICO applies an excessively narrow definition of commercial interest, taking the view that it relates only to a public authority’s participation in the purchase or sale of goods and services in a competitive market. Such an approach effectively precludes a university from applying Section 43(2) to fund-raising activities, at least at the stage of ICO consideration. In a case involving the University of Central Lancashire, the then Information Tribunal adopted a broader definition of commercial interest, which would appear to allow the inclusion of activities such as fund-raising within the scope of Section 43(2).4 We are disappointed that the ICO has yet to revise its guidance on section 43(2) to take account of this decision or to give any other indication that it recognises the potential applicability of Section 43(2) to activities beyond the purchase or sale or goods and services.

Decision-making

20. In recent years, members of the University have become increasingly aware that any recorded information is potentially disclosable under the FOIA (or the Data Protection Act (DPA), where the information constitutes personal data). There is anecdotal evidence that staff, particularly those occupying decision-making positions, are more reluctant to commit their views to paper and that where this is unavoidable, they are more circumspect in what they say. Minutes of meetings are increasingly written with disclosure in mind, so that they are more anodyne but less valuable as a record of discussion. Future historians will regret this. The exemption in Section 36(2) of the FOIA is intended to protect the candour of advice and discussion. But it is not used as often as it might be, given the procedural requirement to obtain the opinion of the “qualified person” (in the University’s case, the Vice-Chancellor). This opinion has to be “reasonable” and must have been reached in a reasonable manner. There is no corresponding exemption under the DPA and so decision-makers are even more cautious in what they say on paper about individuals.

21. The DPA applies to private companies as well as public authorities. However, requesters seeking information from a public authority, with which they had had some sort of prior relationship, effectively get two bites at the cherry, since they can seek information under either Act.

Specific Questions Raised by Committee

22. The committee has invited respondents to address the following three issues (whilst welcoming comments on other issues):

(a)Does the Freedom of Information Act work effectively?

(b)What are the strengths and weaknesses of the Freedom of Information Act?

(c)Is the Freedom of Information Act operating in the way that it was intended to?

23. We will address these issues together, as they seem to us to be closely inter-related eg any weakness of the FOIA is likely to be an example of it not working effectively or in the way it was intended to.

24. The overarching objective of the University is “the advancement of learning by teaching and research and its dissemination by every means”. Our response must therefore be based on an assessment of whether the FOIA has helped or hindered our ability to fulfil this objective.

25. The University accepts that any organisation in receipt of public funds must be accountable for its expenditure of those funds and that openness and transparency are essential to that process (as well as being desirable ends in their own right). There have been significant advances in these areas, which have occurred independently of the FOIA. For example, the introduction of a student contract has made clear what the student can expect in terms of teaching and support and what the University expects in return for providing that teaching and support. As mentioned above, there has also been a vast increase in the amount of information that the University publishes on its website. The FOIA has helped to reinforce this trend towards greater openness.

26. The FOIA was intended to improve the quality of decision-making, as well as promote openness and transparency. We do not believe that the FOIA has improved the quality of the University’s decision-making. On the contrary, it has made the decision-making process more complex, for the reasons in paragraph 20 above. The University also has concerns about the impact of the FOIA on research and fund-raising, for the reasons in paragraphs 11 to 19 above, and does not believe that it was the intention of the FOIA to impair the conduct of research or the ability of universities to raise private funds.

February 2012

1 Excludes routine requests.

2 http://www.ox.ac.uk/gazette/statisticalinformation/#d.en.6207

3 http://www.epsrc.ac.uk/about/standards/researchdata/Pages/exploitation.aspx

4 Case ref: EA/2009/0034

Prepared 25th July 2012