Justice CommitteeWritten evidence from the University of the Arts, London

Executive Summary

University of the Arts, London is a public body for purposes of the FOIA. Like other UK universities it has commercial activities in competition with private enterprises, which activities if undertaken by other non-public organisations would not be subject to the FOIA regime.

The University submits that as a starting point consideration should be given to the reclassification of universities so that the Freedom of Information Act only applies to the public aspects of their activities.

The University has an extensive publication scheme and employs a dedicated Information Officer. It submits that the proactive extensive publication allied with the existing checks and balances upon its activities by independent external bodies more than sufficiently provides a framework within which the legislative’s objectives in enacting the Freedom of Information Act are met. Accordingly it would be not unreasonable to dispense with the requirement for universities to deal with FOIA requests that provide reactive information provision compliance.

The University submits that its publication scheme provides openness and transparency in its affairs. It also submits that accountability is more relevant to central and local governmental bodies or public bodies not so closely monitored and scrutinised independently as universities.

The burden of FOIA disclosure presently placed upon universities is a disproportionate way of achieving the legitimate aim of accountability, costing time and money better utilised elsewhere without compromising the wider public interest in universities’ affairs.

The University submits that it has appropriate governance in place and need not be subject to the same degree of external scrutiny as other public bodies without such comprehensive judicially approved governance.

The University further submits that at a time of universities seeking to be more efficient and less wasteful of their precious resources it is not a useful expense of public money to have to deal with requests under FOIA that are frequently wasteful of time and effort for no general wider public benefit, particularly when those requests are by multiple requestors, journalists and lawyers who could obtain the information sought by other legitimate and available means.

The Act has significantly increased the data that UAL routinely makes available by publication as well as in direct response to FOIA requests. The most useful and comprehensive information is however that which is now routinely published and readily available to the public. To that end the objectives of the legislators in enacting FOIA has been successfully achieved.

1. Introduction

University of the Arts, London, (UAL), is Europe’s largest provider of education in art, design, fashion, communication and the performing arts. It has roughly 4,000 staff and 20,000 students.

The University is a public body for purposes of the FOIA. Like other universities it has commercial activities in competition with private enterprises and anticipates greater competition from private enterprises and from other universities at home and overseas in the future.

The University has an extensive publication scheme and employs a dedicated Information Officer. In the first year of the Freedom of Information Act, (FOIA), coming into force it received five requests under the Act; this number has increased tenfold since commencement.

2. Transparency and Openness

FOIA was intended to introduce openness, transparency in the affairs of public bodies.

The Act sought openness and transparency, which UAL has achieved through its publication schemes. Information is proactively released by UAL without the expensive and time consuming need for requests to be addressed.

There is no cloak of secrecy covering UAL’s activities, which are monitored by a number of independent external bodies, in addition to which its activities, in so far as they affect staff, are monitored by the Trade Unions’ and in relation to students’ interests the Students’ Union.

3. Accountability

The White Paper preceding FOIA specified the purpose of its proposals was “to encourage more open and accountable government”.1 The Public Administration Select Committee, in its response to the White Paper considered that one of the purposes of FOI was to “Make it easier for politicians, journalists and members of the public to hold the government to account by making government cover-ups more difficult.”2

Direct public accountability is a not unreasonable aim for public bodies, but clearly more so for government making decision bodies whose decisions more directly impact upon and affect the public. Universities do not naturally fall within such decision making category, with there also already being in place a comprehensive system of accountability. Thus the burden of FOIA disclosure presently placed upon universities is a disproportionate way of achieving the legitimate aim of accountability: an aim that is reasonably secured and achieved with the publication scheme requirement and the existing framework for the independent scrutiny of universities.

UAL has accountabilities in place; it is subject to the regular scrutiny of independent external bodies such as the OIA, HEFCE, QAA, OFSTED and even the OFT, so that the argument proposed by government that FOIA brings about proper and appropriate accountability simply does not apply to an already well regulated sector.

UAL’s publication scheme contained sufficient information to address the majority of FOIA requests it has received since 2005. Information has been requested about senior manager’s contract details and titles, salaries as well as honorary awards granted by UAL. Where not compromising a person’s Data Protection Act rights this has been supplied although more frequently than not the information required was already published by UAL. Information on staffing policies, organisational structure, corporate plans, financial and capital strategy has also been requested together with information on intellectual property policy and knowledge transfer partnerships and technology transfer details. Information was also requested on research funding, university expenditure and procurement. All of this information was already publicly available so that precious time and resources have been wasted processing unnecessary requests.

4. Better Decision Making

“Jack Straw in the Commons Second reading debate made clear that an anticipated result of greater openness was that FOIA would ‘enhance the quality of decision making by the Government.’ Lord Falconer, speaking in 2004, made clear the Government’s view that ‘It is in our interests as Government to show people how government reaches decisions in their names. Freedom of Information, done properly, will mean better Government.’”123

UAL already has appropriate governance in place that has already been reviewed and approved by the Privy Council, so it is not accepted that being subject to the same degree of external scrutiny by the public achieves anything more than an unnecessary expense of time and money by the University. It is not accepted that the added level of scrutiny achieved by allowing FOIA requests improves a university’s decision making. Far more effective is the routine and regular scrutiny of the university’s governors, in line with national requirements through the Committee of University Chairs, (CUC) and the Higher Education Funding Council (HEFCE).

5. Public Involvement in Decision Making

“In relation to the objective of greater public participation in the decision-making process, Lord Falconer argued in 2004 that ‘without openness we cannot hope to encourage greater participation in our democratic life’. 17 MPs in the Commons debate highlighted increased public participation as an objective, stating that wide access ‘will assist strong, informed democratic participation in the life of this country…Information is the oxygen of democracy.’”123

Again this proposed benefit was particularly directed towards increasing public involvement in central and local government decision making. UAL, whilst reasonably large in organisational terms, does not compare in size and complexity of operation with either local or central government. Furthermore the accountability and participation of the public in relation to government is restricted to periodic electoral approval or veto. The University with its routinely regular governors’ committee structure of governance already provides for the public’s involvement with the running of the university.

6. Wasteful Requests

UAL is concerned that FOIA is used for requests that put simply are a waste of time serving no greater purpose than titillation or mischief making. Indeed this was picked up by the Times Higher:

“Bizarre FOI requests waste university resources, say fatigued staff. David Matthews writes

The Freedom of Information Act strove to advance democracy by committing public institutions to exacting standards of transparency and openness. You can also use it to ask universities about duck poo, hauntings and bans on masturbation in the library toilets. Those burning issues are among the bizarre FOI requests that universities had to process last year, with institutions warning that issuing responses is a drain on resources.”

Highlights from last year include the member of the public concerned by a “Masturbation Notice” that appeared at the University of St Andrews stating that self-gratification was banned in the library toilets..........

The St Andrews request came from prolific FOI Act user Steve Elibank, who also asked the University of Oxford for the “branding and/or style guidelines” for the Oxford Reading Tree series of children’s books featuring the Biff and Chip characters, published by Oxford University Press......

The universities of York and Brighton were both asked how many complaints they had received about haunted buildings, ghosts or “other paranormal phenomena” on their premises, what action they took and how much it cost.

York, famous for its on-campus wildfowl, was also asked to state how much money was “dedicated to the clean-up of duck excrement on a year-by-year basis for 2008, 2009, 2010”, plus its forecasts for spending on clean-up operations in 2011......

One press officer at a Russell Group university said: “Of course it is a perfectly valid argument that this diversion of teaching and research resources is worth it for the transparency the Act attempts to provide. But it’s worth mentioning how much time it takes up.”

She added that the university was “churning out” Excel spreadsheets every day to answer FOI requests and that this had to be done by “people whose job is to do something else (eg, admit students)”.3

7. Fishing Expedition Requests

Each year UAL has received requests for information that are not designed to ensure transparency and openness in relation to significant decisions or UAL policy, requests that do not seek to ensure general accountability or better decision making and which do not seek to involve the public more closely in UAL’s decision making.

These requests are not looking for confirmation of information held and disclosure of it for the public benefit, but rather are requests aimed to “fish” for information for motives entirely personal to the requestor and which are arguably not for the public’s benefit. These include requests from:

(i)Researchers engaged in individual research. These requests are arguably for the personal and even sometimes financial benefit of the requestor. UAL considers the Act’s existing exemptions are not sufficient to adequately protect ongoing academic research. FOIA requests indeed have the potential on occasion to be dangerously intrusive. UAL concurs with Chris Rusbridge who opined succinctly in relation to the application of FOIA exemptions: “Where, for example, an academic researcher has gathered data which will inform published work, but which will not actually be published itself, section 22 however can’t apply. Section 43 might, depending on the facts (as might section 41). But there is a slight possibility that this data would not attract a specific exemption. In those circumstances it’s possible section 36(2)(c) could come into play, but not guaranteed.” Andrew Charlesworth and Chris Rusbridge investigated this area for JISC (see http://www.jisc.ac.uk/foiresearchdata). They concluded the Scottish exemptions provide better protection for research in progress than the RotUK exemptions. “The Scottish exemption protects data gathered during a research project in progress where the research is to produce a report. The RotUK publication exemption only protects data where there is a plan to publish the data requested. Generally only a small proportion of data will be published, and the rest of the data (for which there is no plan to publish) will not be protected.” UAL concurs with such view.

(ii)Journalists. UAL has regularly received FOIA requests from journalists; again where the information sought has been published by UAL. These requests can thus fairly be regarded as being from journalists who could ascertain the information from university publications or by using previous historic “sources”, not to mention Google. FOIA was not enacted to make the life of lazy journalists easier and to discourage them from thoroughly researching original source materials and evidence. Universities should not have to pay for this “research engine” that such FOIA enquiries have become. The requests received at UAL have requested details on student fees, senior managers expenses, course costs and details on take up by international students relating to fees and home students; all of which can be found from UAL’s publications without UAL staff having to do the research work for them.

(iii)Lawyers. The courts civil procedure rules were expressly set up to deal with fair and reasonable disclosure after Lord Woolf’s review of civil litigation procedure a little over a decade ago. The Civil Procedure Rules provide a fair compromise between justice, openness and the interests of the competing parties. The Civil Procedure Rules Practice Direction Pre-Action Conduct provides: “Unless the circumstances make it inappropriate, before starting proceedings the parties should: (i) exchange sufficient information about the matter to allow them to understand each other’s position and make informed decisions about settlement and how to proceed; and (ii) make appropriate attempts to resolve the matter without starting proceedings and in particular consider the use of an appropriate form of ADR. The FOIA was not established to help lazy lawyers to circumvent the pre action protocol procedures of civil litigation. Yet this is what is happening when students, and to a lesser extent staff, wish to bring proceedings against a university. UAL has received such requests since FOIA was introduced and with some lawyers it seems it has become usual practice and is used as simply another litigation weapon in their armoury. Notwithstanding the civil procedure rules and its objective to narrow the issues between the parties, claimants’ lawyers are using FOIA requests to “find” causes of action and broaden the scope of their clients’ claims. FOIA requests are apparently routinely used as a weapon, looking for not only evidence to support an existing claim but to look for additional fresh causes of action. This is particularly evident in cases of student claims. The Office of the Independent Adjudicator, (OIA), was established to address student complaints that had already been through the processes of a university. The OIA process is by enquiry, frequently exhaustive, that whilst demanding for universities is restricted to enquiry about existing or pre-existing grounds of complaint, whereas lawyers representing student claimants are using FOIA to “fish” for fresh grounds of complaint;

(iv)Trades Unions. Universities are keen to work with their trades unions in a spirit of openness and frank co-operation. Individual requests by TU activists have been received by UAL, which invariably have sought information more properly disclosed within the usual transactions between UAL and its unions. Universities, engaged in what has at times been a painful process for change have been usefully and productively engaged with its employee’s trades unions working through existing well established protocols and processes. Circumventing these processes is not what Parliament intended when introducing FOIA.

8. Conclusion

The Act has significantly increased the data that UAL routinely makes available by publication as well as in direct response to FOIA requests. The most useful and comprehensive information is however that which is now routinely published and readily available to the public. To that end the objectives of the legislators in enacting FOIA has been successfully achieved.

Universities are however increasingly being regarded as “quasi public bodies”. They are in 2012 stretching resources to deliver more on more fronts, including commercial and research benefits as well as delivering a traditional higher education. In so doing they face greater competition than ever before and UAL has become more efficient and more innovative than ever. Imposing greater obligations at this juncture would be imposing an unfair economic burden rather than setting universities free to compete more effectively at home and worldwide. It is arguably as well as being unfair and unreasonable swimming against an economic and political current.

It is more reasonable to seek to achieve the original FOIA objectives through publication schemes, with extended obligations if necessary, rather than with a reactive process addressing requests that are all too frequently self-centred and not for the wider public benefit.

It is sensible to lessen the cost of compliance to cash strapped universities and relieve them of an unreasonable burden in terms of time spent in dealing with, if not vexatious, often unnecessary or redundant requests. Even greater is the need to relieve universities of the burden of addressing the fishing expeditions by lazy or self centric requestors, which fishing expeditions the Act was not enacted to facilitate and for which there are other already existing processes for such requestors to use.

The FOIA has brought with it the freedom to waste universities’ time and money when their scant resources are already stretched. Universities face what many in the press have described over the last few years as a funding crisis; so it is more important than ever to steward resources fairly and appropriately.

Requests such as the zombie request received by Leicester Council are of course addressed with a degree of good humour when received by any organisation; nevertheless it remains a waste of time and public money. It is irresponsible use of FOIA and wasting resources.

Dealing with FOIA requests is a process, one that can quite easily become a very costly process. In order for the process to work fairly as well as effectively as the legislature originally intended when enacting the Act, it is now necessary in the era of limited public finance resourcing to simply be able to refuse requests made under FOIA that will cost too much or which are patently made for individual gain rather than the public good.

There are “regular” as well as “wasteful” requestors who submit repeated requests without any consideration of the public money that will have to be spent, and invariably for their personal and not the public good. Universities should be able to decide to refuse requests from persons using FOIA wastefully or as a weapon with which to attack a public body, where the regulatory system provides fair and appropriate other forums for review ought properly to be discouraged.

The possibility of requesting that universities be reclassified so that the Freedom of Information Act only applies to the public aspects of HEI has considerable merit, in a way similar to the treatment of UCAS and the BBC.

In order to protect the rights and privileges of the responsible majority of well founded requestors some requests should be allowed to be declined. It is undeniable that some requestors abuse the FOIA; rejecting their requests is not a denial of their rights but should be more properly regarded as safeguarding the valid requestors’ rights to request information under FOIA.

The Act should be amended in relation to universities so that the benefits of openness, transparency and accountability are abundantly clear, advantages that go beyond satisfying requestor’s curiosity. It needs to be seen to help drive efficiency and assist universities in making the savings expected of them as well as improving the student experience. As it is at the moment the benefits are vague and intangible as well as having an expensive price tag.

February 2012

1 [Your Right to Know: Freedom of Information (1997) [CM 3818]].

2 [Memorandum to the Justice Select Committee Post-Legislative Assessment of the Freedom of Information Act 2000]

3 david.matthews@tsleducation.com.

Prepared 25th July 2012