Justice CommitteeWritten evidence from the University of Surrey

POST-LEGISLATIVE SCRUTINY OF THE FREEDOM OF INFORMATION ACT 2000

1. Summary

1.1. The University of Surrey has seen a rise in requests for information received since the legislation was implemented. In 2005 we received 42 requests. This total has risen gradually since then and in 2011 we received 143 requests. In addition to this increase in volume, the University has also seen a rise in complexity of requests with a corresponding increase in workload and resources required to respond.

1.2 We have found that even when retrieval of information is achieved quickly, it can take considerable time to read, consider and redact information prior to its release. The University would welcome consideration given to widening the appropriate limit as defined in section 12 of the FOIA to include these activities within the limit.

1.3 Although the University finds the majority of exemptions within the Act to be effective in protecting information which is not suitable for release, there are some exemptions which we find harder to apply. The University would welcome changes to the exemption at section 36(2)(b) and 36(2)(c) to make it easier to apply.

1.4 We have found that the FOIA does not always recognise the unique position with regards to commercial interests. Universities compete with one another in a global market in a way that is not shared by other public authorities. The exemption at section 43 is of vital importance to the University of Surrey but the guidance surrounding this is sometimes hard to interpret within the Higher Education context.

1.5 The University of Surrey has also found it difficult to apply section 14(1) to potentially vexatious requests. In our experience it has been easier to respond to the potentially vexatious requests than to use the exemption. We would welcome a widening of this section to allow more requests to be defined as vexatious where repeated requests from one individual have caused an impact regardless of whether the subject of the requests is substantially different.

1.6 As part of our commitment to openness and transparency, the University of Surrey makes a great deal of information proactively available through our website. We have not found the publication scheme to be an effective method of disseminating information. All information within the publication scheme is available on our website and it is questionable as to whether the publication scheme is worth the resources required to maintain it.

1.7 An increasing number of requests for information are received from commercial organisations or Journalists. These requests are not considered sympathetically within the University and it seems against the spirit of the Act for individuals to gain financially from information they receive through Freedom of Information. The University would welcome consideration to measures aimed at preventing individuals from profiting from Freedom of Information requests.

1.8 The University has great concerns over the FOIA and the pre-emptive release of research data. There is a need for research data to remain undisclosed until the appropriate time, to ensure effective quality control through peer review, to ensure intellectual property rights are not breached, to ensure proper management of research data, and to ensure the effective commercialisation of research to the greater public good. All these aspects of research are put at risk by exposure of research data before the appropriate time. There is an increasing drive by research councils to ensure sharing of research data at the end of research projects. It would therefore seem appropriate to widen the exemption at section 22 to include the assumption that all research data is considered to be intended for future publication and is therefore exempt from release until the completion of the research project.

2. Background: The University of Surrey

2.1 The University of Surrey offers over 50 subjects at undergraduate level as well as maintaining a world-class research profile. We currently have 14,441 students and over 2,300 members of staff. Our worldwide partnerships include Massachusetts Institute of Technology, California Institute of Technology, the University of California, Los Angeles and North Carolina State University. In only the second collaboration of its kind to be approved by the Chinese government, the Surrey International Institute offers joint undergraduate degrees with Dongbei University of Finance and Economics in China, giving UK students the opportunity to study at the Dongbei campus and vice-versa.

2.2 The University of Surrey ensures compliance with Freedom of Information legislation through its Information Compliance Unit. This Unit has responsibility for Freedom of Information and Data Protection compliance as well as ensuring the University manages its records effectively in line with the Records Management Strategy passed by our Executive Board in 2009. The Unit also ensures the University’s ongoing corporate memory is maintained through the University Archive.

2.3 The University has seen a rise in Freedom of Information requests since the legislation was implemented. In 2005 a total of 42 requests were received. By the end of 2011 the total was 143.

3. Does the Freedom of Information Act work effectively?

3.1 In the University of Surrey’s experience, the legislation has worked effectively for the most part. The Act’s aims of ensuring openness and transparency have been upheld. Out of 143 requests received in 2011, 93 resulted in the information being provided. The University did not hold the information requested for 25 requests out of the remaining 50. The increase in number of requests received to the Institution and the high number of cases in which the University released information shows that the FOIA is being used effectively as a way of gaining access to information.

3.2 The University has seen a large increase in requests over the past few years. In 2005 a total of 42 requests were received. This increased gradually to a total of 56 requests in 2008 and 95 in 2009. By the end of 2011 we received a total of 143 requests. Alongside the increase in numbers we have also seen an increase in complexity of requests. Many requests now require input from a number of different Faculties and Departments, with a corresponding increase in workload per request. Increasingly complex requests mean that in several cases the time taken to respond has increased, with 30 requests taking 19–20 working days to complete in 2011 (20%) compared to 10 in 2008 (17%).

3.3 Increasingly, the University is finding that even when retrieval of information is achieved quickly, it can take considerable time to read, consider and redact information prior to its release. This time is not currently included in the appropriate limit as defined by section 12 of FOIA and yet it is often the most onerous part of processing a freedom of information request. Requests such as those for senior staff expenses or credit card statements in particular take a large amount of time to consider and redact and there has been an increase in these types of requests over the past two years. If the time required to consider and redact the response could be included in the assessment of the appropriate limit, it would be of great assistance in the management of requests such as these.

3.4 The exemption at section 36 (particularly at 36(2)(b) relating to information the disclosure of which would be likely to prejudice the free and frank exchange of views for the purpose of deliberation and at 36(2)(c) relating to the disclosure of information that would otherwise prejudice the effective conduct of public affairs) is one that the University finds difficult to apply. In the case of Higher Education Institutions, the “qualified person” is the Vice-Chancellor. It is difficult to meet the requirement to gain the opinion of the “qualified person” that disclosure of the requested information would prejudice the public interest. If the list of “qualified people” could be widened out to include other senior individuals of significant authority (for example, Deputy Vice-Chancellors) in the Institution, it would help in practical terms.

3.5 The University of Surrey has generally found the remaining exemptions to be effective in protecting information which is not suitable for release. Most frequently applied exemptions are section 40 (2) to protect personal data and section 43 to protect the University’s commercial interests. However, Universities do operate in a unique position with regards to their commercial interests which is not always recognised in the FOIA. Universities compete with one another on a global market within the Higher Education sector in a way that is not shared by other public authorities. This affects the release of a wide range of information, from admission statistics to research and teaching information. More care has to be taken in the early stages of discussions with potential sponsors than before the implementation of FOIA to ensure all the implications of the Act have been raised.

3.6 There have been several occasions where the University of Surrey has considered the use of section 14(1) to deal with potentially vexatious requests. However, the University has not yet used this exemption and has found it difficult to apply. We have had several individuals who have submitted multiple requests of similar type within a very small timeframe. This causes an enormous strain on the Unit which deals with FoI requests and on the department that holds the information. However, as these requests have all been different and not designed to be disruptive it would be difficult to refuse them on vexatious grounds. In our experience it has been easier to respond to the potentially vexatious requests than to use the exemption with the associated risk and cost of internal review. The University would welcome a widening of the exemption at section 14(1) to provide more discretion to public authorities to decide when a request is vexatious. We would welcome the ability to define a request as vexatious when a series of requests within a period of time from one individual, although different in subject, have had a large impact on University time and resources.

4. What are the strengths and weaknesses of the Freedom of Information Act?

4.1 The FOIA provides a structure and a process for the University to provide information. The University is committed to openness and transparency and does make a wide amount of information proactively available. However, the existence of the FOIA has been helpful in identifying areas for this proactive provision of information. It is also a great strength to have an established process for identifying and providing other information that the University does not currently routinely make available.

4.2 The FOIA sees the requirement under sections 19 and 20 to adopt and maintain a publication scheme as being the best way to ensure public authorities continue to make information proactively available. In our experience, the publication scheme has not been a large factor in our decision to make information available and the publication scheme itself is not the most useful way to disseminate information. The University provides a great deal of information across its WebPages and in the documents it routinely publishes. This information is easily navigable to and accessible without reference to the University’s publication scheme. It may be the case that members of the public refer to the publication scheme and locate the information they need without contacting the University directly, but the University does not have any examples of individuals directly referencing the publication scheme when contacting the University for information. All the information within the publication scheme is available elsewhere on our website and it is questionable as to whether the publication scheme is worth the resources required to maintain it.

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

5.1 One of the great strengths of the FOIA is that by making it possible to get a response to any question asked of a public authority, the authority becomes generally more accountable. However, the increasing number of requests for information from commercial companies and Journalists is not in the spirit of the Act. In 2011 the University of Surrey received 14 requests from individuals identifying themselves from commercial organisations who requested information for potential commercial use. These requests are not considered sympathetically within the University; especially as in some cases the information compiled from these requests is then sold back to the University. There is also concern that the information provided in response to these requests will result in an increase in cold calling and spam email directed at individuals. The University does not have any concrete evidence of this and so finds it difficult to apply any exemptions to these requests. We would welcome amendments to the Act to ensure that individuals are unable to profit from information gained via the FOIA unless they first guarantee the free publication of the information.

5.2 The University also received 24 requests from individuals identifying themselves as Journalists. Although some of these requests clearly operate in the public interest; others appear to be fishing for information from which to generate a news story. Many of these requests are written in a confusing and unclear manner and require resource-consuming clarification correspondence before the information can be sourced from departments. Requests of these types can generate a feeling of reluctance to provide the information as people feel they are conducting another person’s research for them.

5.3 The University also has concerns around the FOIA and release of research data. The University has only received 2 requests since 2005 directly requesting research data. These two requests highlighted many areas of concern and there is a great deal of anxiety surrounding this topic within the University. The first area of concern is that, unlike within administrative departments of the University, research data does not lend itself to effective records management. Researchers arrange and describe their data in a variety of ways. The data itself is often only accessible via bespoke systems, which are an innate part of the research project. This makes the location and provision of research data a much harder prospect which can involve a great deal of resources to achieve. Within the research community there is often enthusiasm for the sharing of research data. There is also corresponding anxiety at premature release of research data through a Freedom of Information request which would cause detriment to individual research projects and to the greater public good. Although there are exemptions that can be used to withhold research data, there is a feeling that these do not go far enough to ensure data is not released prematurely. Section 22 can apply to the small amount of research data which will be published as part of a peer reviewed journal article. However, it can be hard to identify at an early stage which data will be shared in this way, making section 22 difficult to apply in practice. There will also be a great deal of data that is not due to be published and will therefore not fall under section 22. Some research data may be clearly commercially confidential with formal patents in place or pending. However, section 43 may be difficult to apply in cases where a formal intellectual property process is not yet in place. Fear of premature release of data along these lines can make discussions with sponsors of research projects much more complex. There is a feeling that the general culture of research is becoming much more open with an increasing drive from funding councils to share research data appropriately at the end of a research project. In light of this drive for appropriate sharing, the risk of premature release of data seems all the more worrying to researchers. There is a clear need to protect research data from premature release, for example to follow established peer review processes to ensure quality control, even where it does not fit exemptions at sections 22 and 43. The FOIA as it currently stands does not protect this data, unlike the Scottish Freedom of Information Act. An extension to section 22 which states that all research data should be considered as being for future publication would help to resolve this issue.

February 2012

Prepared 25th July 2012