Justice CommitteeWritten evidence from King’s College London

POST-LEGISLATIVE SCRUTINY OF THE FREEDOM OF INFORMATION ACT 2000

Executive Summary

The College supports the principles of transparency and accountability underlying the Freedom of Information Act. However, based on our experience of its operation since 2005, we wish to draw the Committee’s attention to our concerns about the cost of compliance in relation to our core activities of education and research. The differences between the environment universities operate in, combined with their categorically different character to that of other “public authorities” (as defined in the Act), should be taken into account in the application of the Act.

1. The College understands that Universities UK (UUK) intends to submit evidence to the Justice Select Committee in connection with the Committee’s scrutiny of the operation of the Freedom of Information Act 2000 (FOIA). Consequently, we have confined our brief submission to data and reflections which reflect the College’s experience in applying this legislation since 2005. Our responses are relevant to the Committee’s question “what are the strengths and weaknesses of the Freedom of Information Act?” and whether the legislation is operating as intended to provide a right to information without a disproportionate impact on the activities and resources of public bodies.

2. With more than 23,000 students and nearly 6,000 staff, King’s College London is one of the largest universities in the UK and is the sixth-largest recipient of HEFCE quality-related research funding.

3. Reflecting our prominence and the areas in which we operate (eg research involving animals, drug testing), the College receives a high volume of FOIA requests and has experienced dramatic year-on-year growth since 2005 (see figure 1).

Figure 1

TOTAL FOIA REQUESTS TO KING’S, 2005–2011

The average annual rate of increase over the six year period has been 34%, although that has slowed in the last two years. The College has also experienced significant year on year growth over the same period in subject access requests under the Data Protection Act (see figure 2).

Figure 2

TOTAL DATA PROTECTION SUBJECT ACCESS REQUESTS, 2005–2011.

The volume of FOIA requests received by King’s on a monthly basis in 2010 was significantly higher than the average for the HE sector as reported in the results of the annual information governance survey by the Joint Information Systems Committee (JISC) (see figure 3).1

Figure 3

AVERAGE FOIA REQUESTS PER MONTH IN 2010 (KING’S AND HE SECTOR AVERAGE)

4. The College takes its obligations under the FOIA legislation seriously. The overwhelming majority (89%) of requests received a response within the statutory 20 working day deadline in 2011. Complaints relating to our responses to requests are few: in 2011, we experienced 8 requests for an internal review (representing 5% of FOIA responses), and one complaint to the Information Commissioner’s Officer (ICO) which was resolved informally. Since 2005, the College has been the subject of four published decision notices by the ICO, three of which upheld the College’s position that the information requested was either not held or was legitimately exempt from release. The College publishes selected responses to FOIA requests through an online disclosure log.

5. The College supports the general principle of transparency underlying the FOIA legislation, which supports accountability by public bodies in the delivery of their functions. We agree that the FOIA has brought some benefits to society at large: for example, it has encouraged public authorities to proactively publish information (although we believe that the mission of universities means that the HE sector has a good track record in this respect), and a focus on good information management which also supports compliance with Data Protection legislation.

6. However, the benefits of FOIA also have to be balanced against the cost of compliance and its impact on resources that might otherwise be used towards the College’s core charitable, public benefit objects, “to advance education and promote research for the public benefit”.2 This is particularly true in an environment where direct public funding for higher education is decreasing. Universities have always been autonomous institutions expected to compete internationally for funding, staff and students, making the sector very different from many of the other areas to which FOIA applies.

7. We have so far not attempted to quantify the cost of FOIA compliance, although we are participating in an ongoing study by the JISC which aims to do so based on a sample of requests. The annual staffing costs (including management time) of the team responsible for overseeing compliance with FOIA and Data Protection legislation are around £114k. Outside this team, requests impact on the time and resources of the departments, and relevant academic and professional managers, who are called upon to provide the requested information, eg through determining whether information is held, locating it and extracting it. While individual requests require varying degrees of input, anecdotally, our experience suggests that the impact on the time of very senior staff in reviewing and signing off responses can be significant.

8. The provisions in section 12 of the FOIA and its secondary legislation relating to the “appropriate limit” (set at £450 or 18 hours of staff time for universities) are intended to prevent an individual request from imposing a disproportionate burden on a public authority. However, the interpretation of these provisions by the ICO and the First Tier Tribunal (Information Rights) has excluded certain tasks—notably redaction, which can be very time consuming. FOIA s.12 was the second most widely applied exemption used by King’s in 2011 (after s.21, information accessible by other means) (see figure 4), indicating the frequency with which the estimated staff time required to comply with a request can be an issue. Given the rising volume of requests, the “appropriate limit” is an imperfect mechanism to prevent the cost of compliance from impacting on core activities. We would suggest that redaction should be included among the tasks which public authorities are legitimately allowed to include in their estimates for the purposes of s.12. A small charge per request along the lines of the £10 statutory fee for Data Protection subject access requests, or the €15 fee charged in most cases for FOI requests in the Republic of Ireland, would discourage frivolous requests and allow some costs to be recovered.

Figure 4

EXEMPTIONS USED IN 2010 (KING’S AND JISC INFORMATION GOVERNANCE SURVEY)

9. Although the College uses the exemptions in the FOIA sparingly, we would also like to briefly highlight some issues which we have experienced around their application. The Committee will no doubt receive similar views from other public authorities.

9.1 The interface between the Data Protection Act and the “personal data” exemptions in section 40 of the FOIA is particularly complex. While a considerable body of case law in the form of ICO and Information Tribunal decisions has grown up around s.40, the balance between the rights of the College’s individual staff and students and the rights of requesters makes this a difficult area.

9.2 The commercial interests exemption in s.43, which involves a prejudice test and a public interest test, is particularly relevant to universities which, as we have indicated, operate in a competitive environment. The College has been as likely to apply this exemption to protect its own commercial interests as to protect the interests of third parties such as suppliers. Although we accept that there is a public interest in transparency in the spending of public money, universities receive a significant proportion of their income from non-public sources and are expected to operate in a businesslike way. The ICO and the Information Tribunal have tended to set a high threshold for the use of this exemption which we believe limits its usefulness in protecting legitimate commercial interests.

9.3 Individuals who seek to use FOIA to pursue a personal campaign on issues that are being or have been examined in other appropriate forums (such as the courts or regulatory bodies) can have a disproportionate impact, and requests can easily become personalised. The ICO has provided guidance around the exemption for “vexatious” requests, but our experience is that it is often unclear when the requisite threshold has been reached. Attempts by applicants to use FOIA to circumvent decisions by the courts relating to disclosure have been of particular concern to the College.

9.4 The exemption in section 36(2)(b) relating to prejudice to the free and frank provision of advice/exchange of views has been used sparingly by the College in cases where we have felt it necessary to protect a “safe space” for highly confidential and sensitive internal discussions or our ability provide candid views and advice to government. Although it is right that this exemption should be subject to a prejudice test and a public interest test, we fail to see why it should be singled out as requiring the “reasonable opinion of a qualified person”. For universities, this means the Vice-Chancellor or equivalent, which can pose operational issues when responding to requests as it requires the close engagement of very senior staff who have many other demands on their time.

10. As indicated, the College supports the principles of transparency and accountability underlying the FOIA legislation. However, we believe that its application needs to take into account the cost burden on public authorities, and the reality that “public authorities” are not all cut from the same cloth. Universities, which are charities expected to operate in a highly competitive international environment that will potentially include new private sector entrants, should be treated differently from wholly publicly funded bodies (such as local authorities) that provide public services on a monopoly basis. A more nuanced approach to the exemptions and the “appropriate limit” which recognised these differences would be beneficial.

February 2012

1 Information Legislation and Management Survey 2010 at http://www.jiscinfonet.ac.uk/foi-survey/2010

2 King’s College London Charter and Statutes at http://www.kcl.ac.uk/college/policyzone/index.php?id=202

Prepared 25th July 2012