Justice CommitteeWritten evidence from the University of Manchester

Committee Post-Legislative Assessment of the Freedom of Information Act 2000

1. It is the stated intent of the Government to lower the burden of regulatory requirements on the Higher Education sector. In August 2011 the Department for Business Innovation and Skills published its technical consultation on A New Fit-For-Purpose Regulatory Framework for the Higher Education Sector.1 It argued for “a proportionate, risk-based approach to regulation which protects and promotes the interests of students and taxpayers while keeping bureaucracy to a minimum and looking to find areas of regulation that can be improved, reduced or removed”.

2. The University of Manchester appreciates that the Freedom of Information Act 2000 (the Act) has been a force for good, increasing openness and accountability in this sector and others included in its coverage. The aims of the Act also fit in well with many of the current priorities of the sector in terms of the increased publication and sharing of data, increased openness in relationships with students leading to increased student satisfaction and increased administrative efficiency.

3. The Act in its current state however is in some aspects very challenging for universities.

4. The first aspect of this is in the sheer amount of time that it is now taking to service requests under the Act. The number of FoI requests received by most universities has been increasing annually since the Act’s introduction in 2005. This can be illustrated by the figures in JISC’s annual survey of information legislation compliance in universities.2 The University of Manchester received 316 FoI requests in 2011 as opposed to 230 in 2010 and 208 in 2009. Many of these requests are “round robins” from journalists and researchers which can be calculated to take hundreds of hours of staff time across the whole sector, often for disproportionately small reward in terms of actual information returned or used.

5. There is evidence also that those FoI requests being received are gradually becoming more complex and time consuming. This has led JISC to institute a research project to ascertain how long is spent responding to FoI requests within the sector.3 The University of Manchester has gradually had to increase the number of times that it has had to invoke the Appropriate Limit Regulations4 associated with the Act over the last three years from a position in 2009 where they were rarely used to a position now where they are used on a weekly basis.

6. The first submission that we would make therefore is that the Appropriate Limit Regulations should be revised. Currently a public authority is expected to undertake 18 person hours of work on each request under the Act before it can refuse to continue or start to charge. However, this limit only includes time incurred in relation to determining whether the information is held, locating it, retrieving it and extracting it from a document containing it.

7. When responding to a request under the Act there are, however, many more activities which take time but which are not currently included under the Regulations. As an example, several recent requests to universities have asked for significant amounts of financial data, down to the level of individual invoices or credit card statements. Whilst the information itself has been easy to locate and retrieve, the preparation of the information for release has necessitated the redaction of details such as credit card numbers from each individual statement. This has been an enormously time consuming task across the sector (these requests being “round robins”).

8. More activities associated with responding to FoI requests should be included within the Appropriate Limit Regulations, particularly “preparing information for release”.

9. The second aspect of the Act and of its implementation that is currently causing problems within the sector is the lack of applicability of many aspects of it to a university setting. The Act was clearly written with central and local government in mind, and its exemptions and the guidance associated with them clearly reflect this. There are 24 exemptions within the Act, but an analysis of the JISC surveys mentioned above will reveal that only 4 or 5 of them are routinely used by universities, the rest being rarely applicable.

10. The Act, and increasingly its enforcement, fails to take account of the environment within which HEIs operate. British universities are expected increasingly to operate within a commercial environment and to compete for both funding and students both with each other and with private and international institutions. Whilst it should be natural, and indeed desirable, for government departments and local authorities to share resources and information generated through tax funded processes, this is not necessarily the case with universities.

11. University funding comes increasingly from private sources for which those universities have to compete, and this leads to universities regarding some of the information which they hold in a completely different way to a government or council for example.

12. An illustration of this would be in the area of staff wages. It has long been accepted that wages of government and council officials should be by and large in the public domain, at least to the level of fairly narrow pay scales. Many university posts, however, are not funded through public money but through private research investment. Also, many university posts do not exist to administer public funds or implement public policy, but rather to attract student and research funding in competition with other universities, or to undertake purely academic research roles. That the salary of these posts and the assumed public interest in them is treated in the same way as a senior government official under the legislation is a cause of much concern to some universities.

13. This lack of coverage of the commercial aspects of university operation was reflected in the recent controversy around research data, which is currently being addressed through the proposed addition of the “Scottish” exemption covering research data to the English Act. Perhaps an argument could be made to take this further however. In much the same way that the BBC is subject to the Act only in terms of its management, rather than in terms of journalism and broadcasting, perhaps universities should be subject only in terms of management and teaching and learning (their “public” functions), but not research.

14. In addition to adopting the BBC “two tier” coverage by the Act, it would also be useful if universities could be subject to the same restrictions as schools, which are not expected to answer requests during school holidays. Universities, whilst not closed over the summer, often have very diminished levels of operation and staffing over this period. It is often extremely difficult to respond to FoI requests in August and September.

15. Another problem for the HE sector is that whilst the legislation itself potentially covers most situations faced by universities, the interpretation of exemptions by the Information Commissioner’s Office often does not take their distinctions into account. Whilst it has moved on from its position of a couple of years ago that universities do not have commercial interests, it still seems to be rare that case officers dealing with requestors’ complaints to the ICO are particularly familiar with the sector.

16. An example of this is an ongoing case relating to the wages of a member of staff at The University of Manchester in which the ICO case officer involved was very reluctant to accept the argument that there could be a commercial interest in a salary. Clearly in a government context there vary rarely is, but the position is very different in this sector. The impression when dealing with the ICO is often that they are far more familiar with other sectors (understandably, as the bulk of their work comes from central and local government), and that few of them appreciate the particular circumstances of universities. This is something to be addressed outwith the legislation, of course, but there is surely an argument for the ICO to have specialist case officers for such a distinct sector.

17. A related point to this concerns universities’ approach to communication with their stakeholders, and the interpretation of this by the ICO. Many requests under the legislation come from a university’s own students, or staff and students from other universities. Unlike a government department, universities tend to try to communicate with students and others within the sector on a fairly informal basis. This has been an issue in some recent cases within this university, where we have been criticised by the ICO for not quoting sections of legislation to requestors. Again, ICO case officers who are more familiar with the sector would perhaps help to address this.

18. The Freedom of Information Act 2000 is a complex and bureaucratic piece of legislation which, whilst laudable in its aims, demands a large amount of resource investment from a sector which is currently being asked to reduce expenditure. Often this resource investment seems to have little purpose, as in the case of the publication schemes associated with the Act, which seem to be very rarely viewed or utilised by the public. There is much which could be done to reduce this burden within the sector without reducing the effectiveness of the Act in realising its core aim, openness and accountability in the setting of public policy, the undertaking of public functions and the expenditure of public money.

Executive Summary

19. Whilst agreeing with the aims of the Freedom of Information Act 2000 The University of Manchester believes that some elements of it should be modified to reduce what is a significant administrative burden on the sector. In summary; the Appropriate Limit Regulations should be modified to take account of all, or more, of the activities associated with responding to FoI requests and more account should be taken of the particular HE environment in the application of exemptions and in the approach of the ICO in enforcing the Act.

February 2012

1 http://c561635.r35.cf2.rackcdn.com/11-1114-new-regulatory-framework-higher-education-consultation.pdf

2 http://www.jiscinfonet.ac.uk/foi-survey

3 http://www.jiscinfonet.ac.uk/foi-survey/research-eoi

4 http://www.legislation.gov.uk/uksi/2004/3244/contents/made

Prepared 25th July 2012