Justice CommitteeWritten evidence from Teesside University

POST-LEGISLATIVE SCRUTINY OF THE FREEDOM OF INFORMATION ACT

1. Introduction

1.1 This written evidence is submitted by Teesside University in response to the Justice Select Committee’s call for evidence regarding its post-legislative scrutiny of the Freedom of Information Act. The University is able to provide clarification on any aspects of this response, if required.

1.2 Teesside University is ranked by the Higher Education Statistics Agency as the 14th largest university in the UK by student numbers1 and employs over 1800 staff. In 2009/10 the University became the first modern university to be awarded University of the Year by the Times Higher Education, in recognition of it being “an institution that has put itself firmly at the heart of its community, embracing with zeal its mission of working with both individuals and businesses to help them achieve their full potential” [Ann Mroz, Times Higher Education editor].

1.3 Teesside University has processed over 500 requests for information under the Freedom of Information Act since its implementation in January 2005. This submission is based upon that experience to date.

2. Executive Summary

2.1 The University believes that the Freedom of Information Act effectively achieves its primary purpose of promoting openness and transparency in the operation of public bodies, as demonstrated by the >500 requests that the University has received since the implementation of that Act. However, there is neither qualitative, nor quantitative, evidence to suggest that the additional intentions of improving accountability and decision-making have been realised.

2.2 The University considers that the three main weaknesses of the Freedom of Information Act are:

(i)that it mandates the requirement of a Publication Scheme, although the statistical evidence indicates that the Scheme is of little value and its maintenance is an inefficient use of resources;

(ii)that the “appropriate limit” afforded by the Act is not sufficiently comprehensive to prevent some requests from demanding a significant and disproportionate diversion of resources from other activities;

(iii)that the exemption provided by the Act to protect commercial interests does not properly recognise the competitive environment within which universities operate, and therefore does not offer satisfactory protection against the risk of harm to a university’s commercial interests.

2.3 The University is fully supportive of the spirit of the Freedom of Information Act, however there are some instances where it does not believe that the Act is utilised in the intended way. There are occasional instances where requests have required disproportionate resources to process, or have enquired into matters which are more targeted towards personal or commercial interests rather than being in the wider public interest. The overall effect of such requests is to harm the repute of the Freedom of Information legislation.

3. Does the Freedom of Information Act work effectively?

3.1 As the primary intention behind the Freedom of Information Act (FoIA) was to promote openness and transparency in the operation of public bodies, Teesside University would agree that the Act effectively achieves that aim. Since the implementation of the Act in January 2005 the University has processed more than 500 requests for information under the FoIA. Of requests where the University has held the requested information, 94% of our responses have disclosed all or part of the requested information.

3.2 The additional aims of the FoIA are cited in the Ministry of Justice’s Memorandum to this Select Committee as being: to increase accountability, to support better decision-making, and to encourage public involvement in decision-making. Very few (<3%) of the requests to the University over the past five years would be considered as having a direct link to those aims, therefore it may be considered that the Act has had little apparent impact upon improving accountability or decision-making.

3.3 The practical effectiveness and consistent interpretation of the Freedom of Information Act has been greatly aided by the guidance and decisions published by the Information Commissioner’s Office and the Information Rights Tribunal. The FOI practitioners within the University typically refer to the ICO’s guidance material on a weekly basis and the Tribunal’s decision notices on a monthly basis. The guidance material published by the Ministry of Justice is found, in comparison, to be of less practical value.

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

4.1 The Act’s requirement to proactively publish information has been found, in the University’s experience, not to work effectively. Paragraph 3 of the Ministry of Justices’ memo to the Select Committee describes this requirement as being “a duty of proactive disclosure on public authorities by requiring them to adopt and maintain a publication scheme setting out the information and documents which they routinely release”. The University’s Publication Scheme was accessed 50 times by 34 users during the 12 months ending 31 July 2011; those figures include internal staff access. Although the University recognises the intention behind such a proactive publication of information, the visitor statistics would indicate that the Publication Scheme is of very limited practical value and that the requirement to maintain it is not an efficient use of resources.

4.2 The practical application of the “appropriate limit”, or cost limit, provided by section 12 the Act has been found not to be consistently effective, particularly as it does not allow for the time involved in redacting exempt information. For example, the University received a request for the minutes of its Staff Monitoring Committee meetings over the previous 30 months. That Committee meets weekly or fortnightly to deal specifically with staffing issues, and its minutes include a substantial quantity of personal data which would be exempt from disclosure under s.40 of the Act. The redaction of that personal data from the minutes cannot be counted towards the appropriate limit, so, if the requestor had not voluntarily agreed to amending the request, the processing of that one request would have required the diversion of staff from other activities for more than a week and would have cost the University more than a thousand pounds to process in staff costs alone. If the intention of the appropriate limit is to prevent disproportionate resources being diverted to the processing of individual requests, it would seem to be a weakness of the Act that such time-consuming activities cannot be counted towards that appropriate limit.

4.3 The exemption afforded by section 43(2) of the Act for the protection of information that may damage an organisation’s commercial interests does not suitably recognise that universities operate in a highly competitive market for both private and public funding. The threshold for the application of that exemption is extremely high, requiring evidence of potential damage and a probability of harm which is more likely than not. It may not be possible for information such as budgets and strategic plans to meet the requirements of the exemption, but their disclosure can still expose a risk of substantial harm to the University’s interests. Any risk of harm to the University’s commercial interests, even if that risk is not high enough or sufficiently demonstrable to satisfy the technicalities of the Act’s requirements, could have potentially devastating consequences to the ongoing success of the University, which would surely not be in the public interest. This exemption is, therefore, considered to be weaker than necessary to satisfy its intention.

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

5.1 The University is of the opinion that, on the whole, the Act is operating in the intended way. However there are some exceptions where the processing of requests necessitates a disproportionate diversion of resources for matters which have no apparent public interest. This has included individuals pursuing private campaigns where the exemption for vexatiousness could not be applied, and requests that use the University’s obligations under the Act as a means to access other organisations which are not subject to such legislation, such as the Students’ Union or private companies with whom the University has worked.

5.2 The University supports the view that data which is being used in current research activities should not be made publicly accessible until that research has been completed. It is recognised that there is an importance in facilitating transparency and probity in the quality of research, although such premature publication can significantly prejudice the University’s ability to successfully conduct and conclude research activities. The University supports the addition of an exemption to the Freedom of Information Act, similar to that which already exists in the Scottish variant of the Act as well as legislation of other countries, to provide qualified restrictions to the publication of research data. This issue is being progressed through other means, although it is considered relevant to this context in terms of the FoIA not operating in the way it was intended.

5.3 The University believes that the use of the Act as a tool for obtaining research data for student projects, dissertations and theses is not in the spirit of the legislation, even though it is used in this way. One of the core principles of research ethics is that participant involvement in such activities is voluntary, fully-informed, and can be withdrawn at any time. This conflicts with a public authority’s legal obligation to provide information under the FoIA. Such requests are not perceived to be in line with the original intentions of the Act, although they do create a significant, and increasing, volume of work for public authority employees.

February 2012

1 http://www.hesa.ac.uk/content/view/1897/239/, “2009/10 students by Institution”, accessed 17/01/2012.

Prepared 25th July 2012