Justice CommitteeWritten evidence from the Wellcome Trust

Key Points

1. We welcome the opportunity to respond to the Committee’s inquiry on the post-legislative scrutiny of the Freedom of Information Act (FOIA). While we fully support the importance of openness and transparency, we would like to highlight a number of specific concerns about the implementation of the Act in relation to university researchers:

pre-publication requests for research data;

limitations with the current cost threshold;

the impact of FOI requests on research involving animals; and

the impact of the FOIA on the competitiveness of UK universities.

2. While we welcome the sector-specific guidance issued by the Information Commissioner, we argue that further guidance and greater clarification is needed to provide universities and researchers with the reassurance to operate effectively within the requirements of the Act.

Introduction

3. We welcome the opportunity to respond to the Committee’s inquiry on the post-legislative scrutiny of the Freedom of Information Act (FOIA). While the Wellcome Trust itself, as a charity, is not subject to FOIA, the majority of researchers that we fund are captured by it because they are based in UK universities which are defined as “public authorities” under the Act. The implementation of the FOIA, and its impact on researchers, is therefore of direct relevance to the Trust. UK universities are facing an increasing number of FOI requests and are becoming increasingly concerned about the burden this creates.

4. We strongly support the importance of making research data widely available to maximise public benefit, and the Wellcome Trust has taken a leadership role to promote the importance of data sharing. However, data sharing must be done in a timely and responsible manner to ensure that data can be verified, built upon and used to advance knowledge and its application to generate improvements in health. We share the concerns of Universities UK and others as to whether the FOIA is the most effective way to achieve appropriate openness.

5. The FOIA was designed with the primary intention of increasing transparency and accountability in central and local government authorities. We note that the issues universities face will often differ from those found by other public authorities and we argue that it is important to be aware of these differences. We welcome the sector-specific guidance issued by the Information Commissioner in September 2011 in an attempt to address these differences. However, while the guidelines have been a helpful starting-point, there are still many ambiguities and researchers remain concerned.

6. The proposals to extend the FOIA to include research datasets, currently under debate in the Protection of Freedoms Bill, also exacerbate the concerns. In particular, the requirement that datasets be provided in a “re-usable” form to a non-specialist user may not be practicable. Scientific datasets are often extremely large and complex, and require specialist software and additional metadata to access and interpret. The cost and time required to make such datasets accessible and meaningful would be prohibitive, and detract from research efforts.

7. A number of research projects are currently underway to assess the impact of FOIA on universities, as highlighted by Universities UK. Unfortunately these will not report until after the post-legislative scrutiny period, but it will be important to take their findings into account at the earliest possible opportunity.

Concerns with the Implementation of FOIA

Pre-publication research

8. With much research, data collection and analysis is an ongoing process. We support the calls by Universities UK to introduce a limited exemption for pre-publication research, modelled on the Scottish exemption. This would make it clear that the exemption should only apply if disclosure would result in substantial prejudice to the research, those conducting it, or the university.

9. The Wellcome Trust, and other research funders, already requires applicants to submit a data management and sharing plan prior to an award being made, in cases where the proposed research is likely to generate data outputs that will hold significant value as a resource for the wider research community. Data sharing plans set out what data will be made available and how, and provide an indicative timeframe. We would argue that, where such a data sharing plan exists, Section 22 of the FOIA (which provides a qualified exemption for information held with a view to publication “at some future date”) should be engaged if an FOI request is made for data covered by the data sharing plan.

10. We also argue that it is not in the public interest for data to be published before the time specified in the data management plan. Without appropriate curation, it may not be possible to interpret data appropriately and accurately. There is also the risk that if the process of validation and analysis is not complete, misleading information will get into the public domain which could be a particular concern with medical research.

Costs of compliance

11. The Ministry of Justice memorandum to the Committee notes the importance of considering the financial impact of FOIA on public authorities, given the current economic constraints. Currently, the costs of redaction to comply with other requirements, for example the removal of personal information, are not included in the cost threshold. This can place a significant time and resource burden on universities.

12. The University of Newcastle, for example, has recently spent more than £250,000 on legal fees disputing a case relating to an FOI request for project licences for primate research. It is important to take into account the full costs of meeting FOI requests, and whether diverting these resources away from research is always in the public interest.

13. The proposal to extend disclosure requirements to datasets which must be available in “re-useable” format would add significantly to costs, particularly where personal information is included in the dataset. Additional guidance will be needed to clarify what costs can be charged for these requests, and particularly to explain what is meant by the phrase “reasonably practicable”.

Use of animals in research

14. The submission from Understanding Animal Research sets out the concerns that FOI requests are increasingly being used by animal rights extremists to obtain information which can be used to target and threaten individuals and institutions involved in animal research. The recent decision by the University of Newcastle, following a ruling by the Information Tribunal, to make information about project licences relating to the use of primates in research available has triggered a significant increase in the number of requests of this type to universities.

15. While some of these requests should be exempt under the existing provisions of FOIA, universities have not been given enough support to enable them to deal effectively with this type of request. Robust guidance is needed to help universities have the confidence to recognise and deal with vexatious requests.

16. There are also specific concerns about the way the FOIA interacts with the Animals (Scientific Procedures) Act 1986 (ASPA). Section 24 of ASPA makes it an offence for those with responsibilities under the Act to disclose information given in confidence. We recognise the need to make information available to build public confidence about the use of animals in research. However, it is also in the public interest for researchers to know that when confidential information is sent to the Home Office it will not become discloseable under the FOIA. An appropriate balance must be found to encourage openness while also protecting researchers. Animal research is an integral part of the UK’s research base and has made an important contribution to advances in medicine and surgery.

Competitive position

17. We are also concerned that the FOIA could seriously threaten the competitiveness of UK universities. Researchers and universities are competing both between themselves and internationally, making them significantly different from most other public authorities. It is not clear what protections exist to prevent a competitor academic requesting research data as it emerges. There are also examples where businesses have felt unable to partner with universities because of the threat that intellectual property may have to be disclosed under FOIA. Stronger guidance is needed to provide clarity that universities can rely on the commercially sensitive information exemption to maintain their competitive position.

February 2012

Prepared 25th July 2012