Justice CommitteeWritten evidence from the University of Leicester

Executive Summary

The University’s view is that the legislation is not meeting requirements and does little to support the stated aims of openness, transparency and accountability. Within the Higher Education sector, relatively little use is made of the rights to access information but it is nevertheless extremely expensive to administer. Far from supporting its aims, the complexity of the legislation and its application is generating a view by default that public authorities are not only being secretive but are also acting in an improper manner.

The University is particularly concerned that the right of access to information is being used by journalists, commercial organisations and others in a manner that was not originally intended and at significant cost to institutions.

No effective provision is made within the legislation for sectors such as higher education which operate within a competitive environment.

There is only limited protection for research data although it is recognised this may be addressed to a certain extent by proposals in the Protection of Freedoms Bill.

Lack of clarity and ambiguity in the application of the exemptions is damaging to the reputation of public authorities and unhelpful to the general public.

Due to the exclusion of the costs of redaction, the fee charging mechanism is totally ineffective in protecting public authorities from incurring unreasonable costs of compliance.

The University considers there is a need to review the legislation with respect to the higher education sector, both in terms of applicability given the reducing level of public funding, and with regard to private higher education providers, and the need for a “level playing field”.

For the Higher Education sector the University would prefer to see a more prescribed approach to publication of information balanced by a restricted right of access, and greater protection of commercial interests, but with appropriate safeguards to prevent undermining of the basic aims of the legislation.

Introduction

1. The University of Leicester welcomes the opportunity to submit evidence to the Justice Select Committee for its post-legislative scrutiny of the Freedom of Information (FOI) Act. Comments are organised with respect to the three key issues: effectiveness of the FOI Act; its strengths and weaknesses; and whether it is operating as originally intended.

Does the Freedom of Information Act work effectively?

Provision of access to information

2. The fundamental purpose of the legislation is to give the public the right to access information held by public authorities with a view to encouraging a culture of openness and accountability that will promote a better understanding of how public authorities operate, how decisions are made, and the use that is made of public funding. These are principles and objectives which are inherent in the University’s Charter and Statutes and are reflected in its governance structure. Within the higher education sector, the FOI legislation, in its present form and usage, adds very limited additional benefit to the public but imposes a significant overhead on institutions in responding to requests for information and in compliance generally.

3. A key concern is that in practice the legislation is virtually solely request-based, and in the University’s case this right is exercised by a small group of requestors. Currently the University receives between 130–140 requests for information per year. Nevertheless, this relatively limited demand requires: a minimum of two staff with a high level of legal expertise and knowledge in the requirements of the FOI Act; training of all University staff; significant time spent in the application of the FOI Act and other legislation; considerable effort in collating and redacting information; and review of complaints and addressing those which are referred to the Information Commissioner. The University estimates that for 2011, compliance with the legislation required staff time equivalent to 3.1 mid-range posts and at a total cost of £185,000 (calculated on a full economic cost basis)—a cost for which the public generally derived very little benefit.

4. It should be noted that these costs have increased considerably over time and are very much on an upwards trajectory. Scaled-up across the sector, these costs are not sustainable and are not in the public interest. The Joint Information Systems Committee (JISC) has provided a very rough estimate that the current cost of FOI compliance within the higher education is £10 million but if all attributable costs are taken into account the actual cost is probably double this amount.

5. The FOI Act requires public authorities to maintain a Publication Scheme which largely contains information that universities already make available to the public through their websites. The Act, however, requires the presentation of the information in accordance with a pre-defined template. As a consequence, either two information sources or extensive cross-referencing from the publication scheme to the website have to be maintained, and from the University’s experience, little, if any use, is made of the Publication Scheme. It is therefore an expensive and unnecessary overhead.

6. A more proactive approach is necessary in order to provide the information that is needed by the public and, in the case of the higher education sector, by applicants, students, and industry. This view was reflected in the White Paper “Higher Education: Students at the Heart of the System”, which fully supported the publication by universities of Key Information Sets accessible through a central source, and advocated their further development.

Accountability

7. With respect to accountability, whilst this is clearly highly desirable the legislation is being perceived as an audit tool. Although it is the case that the abuse of expense claims by MPs would not have been fully uncovered without the FOI legislation, there should have been better controls in place to have prevented it happening. It is a totally unsatisfactory situation if the proper governance and management of public authorities is dependent on the random audit by the public and the Press. It would be much more appropriate and cost-effective to have better regulation in place where this is deemed necessary.

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

Poorly defined exemptions

8. There is a lack of clarity in the definition of a number of the exemptions and significant scope for ambiguity in interpretation which results in frequent challenges by the general public and often the need for adjudication by the Information Commissioner. The problem is further compounded where it is necessary to apply a public interest test which will inevitably be, by its nature, a subjective judgement. This is unsatisfactory for public authorities which have to expend considerable time in assessing the appropriate application of the exemptions, which is not intended to avoid disclosure but is simply to ensure that not only are the University’s interests protected but also that national interests and individuals’ rights are protected. From the general public’s perspective, and particularly where there is limited knowledge or experience in this field, the nuances of the legislation can be difficult to understand and the public authorities’ position is often seen as evasive.

Limited provision for public authorities operating in a competitive environment

9. The FOI legislation makes little provision for those public authorities operating within a competitive environment. Universities are already operating in such an environment both within the UK and internationally. In the recent White Paper “Higher Education: Students at the Heart of the System”, the government has signalled its intention to open up the Higher Education market to a broader range of bodies including those in the private sector. Notwithstanding the FOI restrictions on access to commercially confidential information, higher education institutions within the public sector will be placed at a significant disadvantage in that for-profit organisations will have considerable access to marketing-related information, and also to teaching and research outputs, whilst being able to deny similar access to their information. Furthermore, such organisations will clearly not incur any compliance costs.

10. Related to the above point, as the higher education funding model is now changing and direct government funding is reducing significantly as a proportion of total income it is questionable to what extent the sector should now fall within the scope of the Freedom of Information legislation.

Access to commercially confidential information

11. With respect to the exemption applying to the provision of commercially confidential information, there has seemingly been a tendency in the past for the view to be taken that higher education institutions are not operating in a competitive environment giving a presumption for disclosure. If this is still the case, this view does need to change.

Inadequate protection of research data

12. The University fully supports the principle of making research data more widely accessible, and indeed the sector as a whole pursues a policy of openness in this respect, but there are circumstances where it is not appropriate to grant access to research data. The current FOI legislation does make provision for exemption to the right of access in such circumstances but the manner in which the legislation is applied gives little effective protection.

13. The underlying problem is that research considerations were not taken into account when the legislation was drafted and as a consequence it is primarily aimed at the types of information held by governmental bodies. As noted above, no recognition is given to organisations which have strong commercial interests, as is the case for the higher education sector, and particularly with respect to research staff who are working in a highly competitive international field.

14. A requirement to disclose research information before publication may substantially prejudice that research giving competitors and those who wish to exploit research commercially a clear advantage. Whilst there is an exemption relating to future publication, its engagement is uncertain, depending on the length of time to publication and consideration of the public interest. A proposed amendment to the Protection of Freedoms Bill to provide an exemption to the right of access where the research is ongoing and where its disclosure, before the date of publication, would substantially prejudice the research, would address this concern.

15. Similarly, for research data which is considered to be commercially sensitive, the application of the exemption relating to Commercial Interests is uncertain and may be over-ridden if it is considered to be in the public interest to disclose. Clearly this can severely inhibit universities’ ability to enter into commercial partnerships.

16. The legislation is also failing to protect research of a sensitive nature, and consequently exposing staff working in these areas to risk, as has been seen in relation to the ruling requiring the University of Newcastle to disclose details of Home Office licences relating to projects where animals are used for experimentation.

17. The situation is now being further exacerbated with the provision within the Protection of Freedoms Bill which will require universities to provide access to research datasets in an electronic form which is capable of re-use. Again, there has been no apparent assessment of the impact of the legislation on research data and on universities. There does not appear to be a full understanding of the nature of research data, and in particular of:

(a)The difference between quantitative and qualitative research data. Whilst the former lends itself more to presentation in a database format for analysis, the latter is less structured and much more difficult to provide access in a meaningful way.

(b)The scale and complexity of research data where size may be measured in terabytes and held in databases containing hundreds of datasets. Research data can rarely be held in simple one dimensional datasets. Universities will incur significant costs both in translation to accessible formats and in the provision of detailed explanatory notes.

(c)The distinction between data that can usefully be put in the public domain (eg genomic data) to support other research or technology transfer, data that is commercially sensitive for which access needs to be restricted, and data of a confidential or sensitive nature that even where the raw data is made accessible in an anonymised form may still permit identification of individuals or other sensitive information through analysis of small groups and deduction.

18. Under the new legislation, universities are not only likely to be required to provide access to data which will be damaging to their interests but also to incur significant costs in so doing.

Charging of fees for the provision of information

19. Frequently in responding to a request for information, considerable time and expense will be incurred in determining whether certain exemptions are applicable and in seeking legal advice where appropriate, and in the redaction of information. With respect to the latter, most redaction is necessary to meet the requirements of the Data Protection legislation. The FOI legislation, however, makes no provision for charging for these activities which is often the major time component in responding to requests.

20. Whilst the fee charging mechanism sets out to prevent public authorities from incurring unreasonable costs of compliance by imposing an 18 hour limit above which costs may be charged, in practice as the above costs are excluded responding to requests can take days or even weeks of effort. As a consequence there is no such protection.

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

Requests not in keeping with the spirit of the legislation

21. A significant proportion of the requests received by the University are not what the legislation was intended to address. These include requests received from journalists and commercial organisations. With respect to the former these are largely “fishing expeditions” where journalists request the same information from the entire higher education sector, not because there is any real concern or evidence of wrong-doing but with the hope that it may unearth some inappropriate activity. An example of which was a request received last year for copies of all credit/purchasing card statements in original format for all staff for the previous financial year. The cost to the University of these requests is estimated to be around £50,000 per annum.

22. Requests that are received from commercial organisations are generally for marketing purposes and clearly represent an abuse of the legislation with institutions, and indirectly the taxpayer, subsidising these organisations’ marketing operations. In Leicester’s case, this amounts to around £25,000 per annum. A request recently received by the University asked for detailed information relating to IT equipment and IT support arrangements. It is understood that the same request has also been sent to over 1,400 public authorities. On the basis of a conservative estimate that on average it will require one day’s effort by each authority to respond to the request, this amounts to around six years effort being paid for out of the public purse for a single request for presumably one marketing organisation.

23. There are also examples of requests for which it is difficult to discern any benefit to the public or that could even be considered to be frivolous, which includes a request received for numbers and details of a particular group of students that was graduating to assist in the organisation of a ball.

24. Nevertheless there are clearly a number which do fall within the spirit of the legislation and for which it is important that the right of access is maintained. However, given that the publication scheme is barely used, and that of the 356 requests received by the University over the past three years, a little over 200 may be considered to be in the spirit of the legislation, it is effectively costing the University £185,000 to satisfy the information requirements of an average of 67 requestors each year. Clearly these needs could be addressed in a more cost-effective manner.

Conclusion

25. The University clearly fully supports the principles upon which the legislation is founded. However, in their implementation the University’s view is that the legislation is not meeting requirements. It is expensive to administer and the reactive nature of its application in practice is generating a view by default that public authorities are not only being secretive but are also acting in an improper manner. This is a great disservice and at times can be very offensive to the hard-working and committed staff working in public authorities.

26. The University considers that a more proactive approach is necessary in order to provide broader access to information and to give assurance regarding proper management and use of public funds, and to do so in a more cost-effective manner.

27. There is also a need to review the legislation with respect to the higher education sector, both public and private, in order to provide a “level playing field”. Such review should also give broader consideration of the justification for higher education falling within the scope of the FOI legislation given the reducing level of government funding.

28. A revised approach to FOI could include the following elements:

(a)A more prescriptive publication scheme applicable to the public and private higher education sectors.

(b)Enhanced financial and other regulation where considered appropriate for the publicly-funded HE sector.

(c)A more restricted right of access to information subject to appropriate safeguards.

(d)Greater recognition of public authorities operating in a competitive environment and protection of information of commercial value.

(e)Controls on the accessibility of teaching and research outputs where appropriate.

(f)Greater clarity in the definition and application of exemptions.

(g)Restrictions on who may request access to information and for what purpose linked to a charging method allowing greater cost recovery where appropriate.

29. From the higher education sector’s perspective this approach would place it on a more equal footing with both the private and international sectors, and reduce the cost of compliance, but more importantly it would align with the direction the sector is already taking with respect to the provision of service and information.

February 2012

Prepared 25th July 2012