Justice CommitteeWritten evidence from Cranfield University

1. This submission is a response from Cranfield University to the call for evidence on the Freedom of Information Act by the Justice Select Committee.

2. Cranfield recognises the importance of the Freedom of Information (FOI) Act in ensuring that the operations of public bodies are transparent and that such bodies can be held publically to account for their actions. However, we have concerns that the Act is not working effectively and that in some areas it is not operating in the manner in which it was originally intended. We recognise the strengths of the Act in providing citizens with the opportunity to scrutinise the operations of public bodies within a well-regulated framework, requiring them to respond transparently, within clearly defined timescales and with a clear right of appeal should a body refuse requests for disclosure. However, we have identified areas of concern which we believe relate to weaknesses in both the Act itself and its post-legislative implementation. These relate principally to:

Use of the Act beyond the scope originally intended, including for commercial gain rather than public scrutiny.

The use of the Act in disputes to frustrate the legitimate operations of an organisation.

The breadth of the definition of “public-bodies” and impact of the Act on legitimately confidential operations.

Use of the Act Beyond its Originally Intended Scope

3. We understand that Universities UK will be making a detailed submission to the Justice Committee and believe that many of the issues we identify in this submission are similar to those across the UK Sector. Cranfield has observed a seven times increase in FOI requests over the past five years with many requiring information which we believe are beyond the original intent of the Act. Examples include:

The use of “global” fishing requests by journalists to short-cut traditional news gathering.

Requests from university staff and students for the purpose of their own personal research.

4. In such cases these place significant burden on HEIs, but often result in little output of legitimate public interest. In our view the Act is therefore being exploited to carry out data gathering which should be conducted by researchers themselves using well established research tools. Such activities are unfairly transferring the burden of research from researchers themselves to public bodies.

5. In addition, similar “round-robin” requests are often exploited for purely commercial gain rather than public transparency. Requests for information on matters such as investment strategies and spend, named decision makers and related information are frequently used by commercial companies simply to target their own marketing, or through the creation of databases for commercial gain.

6. We believe such requests fall outside of the original intent of the Act.

Use of the Act to Frustrate Legitimate Operations

7. Many bodies, including Cranfield, recognise that an increasing number of the most complicated and time consuming requests under the Act are associated with disputes with outside parties or with disgruntled employees or former employees. We recognise the legitimate right of individuals to request information of public interest. However our view is that in many of these cases significant numbers of requests are made to simply frustrate the legitimate operations of organisations. This arises from the workload and senior executive and legal time required to service such requests. Whilst organisations have the right to turn-down vexatious requests under the Act, sophisticated use of FOI in such disputes is often frustrating operations without crossing the line to vexatious behaviour. One of the principal issues here is the statutory requirement to respond to each request as a separate entity, with few rights to resist a number of consecutive and related requests from single individuals.

8. We believe that the frustration of the legitimate operations of an organisation through use of FOI was never an intent of the Act.

Legitimate Commercial Confidentiality

9. Universities are classified as public bodies as a consequence of their receipt of a block grant from their relevant funding bodies. This classification requires not only that universities themselves conform to the FOI Act, but also their subsidiaries, such as trading or commercialisation arms. The direction of travel of the sector is towards less direct block funding and a drive to more commercial activities, and Cranfield is already an exemplar of this position with only approximately 15% of its turnover derived from direct public block grant. Our experience is that this creates a significant tension in relation to the Act—namely at what percentage of turnover should a University legitimately become a commercial rather than a public body—with implications for operation of the FOI Act. Whilst superficially appearing an “academic” point, this is far from the case in reality and we believe will challenge the whole UK HE sector as it is required by government to seek increasing amounts of third-party income on a commercial basis.

10. Cranfield has already faced such tensions over an extended period of time in its educational, and research and innovation activities. It has been challenged through the FOI Act to reveal commercially sensitive information core to the operations of the institution. This has included information such as financial modelling and costing, as well as intellectual property including course materials which provide the University with significant competitive commercial advantage. No commercial organisation is required to reveal such information, and in our view no university should, except where it relates to direct public investment.

11. Exclusions exist under the Act for commercially sensitive information, however in our experience from ongoing engagements with the Office of the Information Commissioner, including a legal appeal against a ruling in this area, a commercially active university such as Cranfield has to argue for commercial confidentiality against a strong starting position of public disclosure. This is clearly iniquitous where an institution is predominately winning turnover on a commercial basis and will become a greater issue for the HE Sector as it embarks further on the change agenda driven by the Department of Business Innovation and Skills. The answer to this is clear to us; either free the commercial activities of the University Sector from the FOI Act and/or at an appropriately low level of direct public funding, remove the classification of a university as a “public body”.

Executive Summary

12. Cranfield has highlighted in this submission its broad support for the operation of a Freedom of Information Act in our mature democratic society.

13. However we have also identified that post-legislative operation of the Act has thrown up issues for the University Sector. In our opinion these have generally arisen as un-intended consequences of the Act.

14. We have identified areas of concern which we believe relate to weaknesses in both the Act itself and its post-legislative implementation. These relate principally to:-

Use of the Act beyond the scope originally intended, including for commercial gain rather than public scrutiny.

The use of the Act in disputes to frustrate the legitimate operations of an organisation.

The breadth of the definition of “public-bodies” and impact of the Act on legitimately confidential operations.

15. We welcome the Justice Select Committee’s post-legislative scrutiny of the Act and the opportunity it offers to correct some of these consequences for our Sector.

February 2012

Prepared 25th July 2012