Justice CommitteeWritten evidence from the University of Essex

Executive Summary

1. The University of Essex broadly supports the principles of the Freedom of Information Act. In general the Act works well. There are some areas of concern and these are the usefulness and applicability of publication schemes in the age of websites, the cost of compliance, appropriateness of use of the Act by journalists, the changing nature of the sector, and adequate protection for research data.

Openness, Transparency and Accountability

2. The University of Essex is an open and transparent organisation. It makes a large amount of information freely available to stakeholders through its websites and other publications. As a charity the University is required to publish a wide range of information.

3. Knowledge transfer is a key part of the University’s vision and values. We are rated 9th nationally for the quality of our research and sharing and disseminating research is an important part of University activity.

4. The University is home to the UKDA which is the curator of the largest collection of digital data in the social sciences and humanities, forming a vital resource for teachers, researchers and students worldwide.

5. The University currently receives around 90 FOI requests each year. In 2010 we responded in full or in part to all but three of those requests.

Publication Schemes

6. The publication schemes were useful as an initial guide to the types of information that the ICO considered universities should make available. However, some parts of the definition document are not clear and do not always seem to relate directly to the way in which universities work and the classes of information they are likely to hold.

7. The publication schemes need to be revised, with input from the sector, to better reflect the types of information that Universities hold.

8. Since the implementation of the Act the University, in common with others, has grown its web presence, making more and more information freely available through its website. Information on the website is organised in a way that reflects our stakeholder groups and their particular interests and requirements for information.

9. It is no longer helpful to be required to pull together certain areas of information and present them as a separate publication scheme. This tends to duplicate work as the scheme needs to be kept up to date alongside other web pages that hold the same information.

10. We suggest that the publication scheme should be reduced to a minimum set of information that the ICO considers it necessary for us to publish. Universities should be free to present and publish this information in a way that best serves the interest of stakeholders, rather than being required to maintain it as a separate document.

Cost of Compliance

11. While it is reasonable that universities should create and support posts to deal with compliance with a range of legislation, the burden of FOI often falls not on the individual appointed to be responsible for compliance, but with staff across the organisation whose primary function is providing or supporting services that affect students. It is not unusual for one part of the University to be called upon to pull together information to respond to several FOI requests at once, taking staff away from core business. Many teams are small and taking one person away to focus on gathering information for an FOI request can have an impact on service.

12. It should be possible for organisations to negotiate with enquirers over the deadline. Although the 20 days prevents organisations from unnecessary prevarication, it can impose an unnecessary burden. In some instances, were there more time, it would be possible that the amount and quality of information received by enquirers would be improved as the organisation would have more time to identify, retrieve and present data.

13. Section 12 gives an exemption where the cost of complying would exceed the appropriate limit. This limit has not been changed for some time. The exemption could be improved by allowing the costs of considering exemptions or redacting material to be included. These tasks can form a considerable part of responding to FOI requests.

Use by Journalists

14. Reflecting national trends1 around 30% of all FOI requests received at Essex are sent by journalists. Where there is bad practice it is right that journalists are able to expose that. However, we share the concern of other practitioners, noted in the MoJ memorandum addenda on the IPSOS MORI poll, that journalists use FOI to “fish” for stories. Large numbers of institutions are targeted by “round robin” requests, which often do not appear to be used in any media item. It would be helpful if the Act allowed us to refer the enquiries to press offices and agree that a request is not to be handled under the Act.

The Changing Nature of Higher Education Funding

15. FOI Act applies to public authorities. As funding of the sector changes, and a greater proportion of university incomes comes from non-governmental sources, it is even more arguable whether Universities are truly public authorities and whether the Act should therefore apply to them. This concern does not arise from a wish to become opaque and secretive, but from a concern that as Universities move into an even more open market place some of the requirements of FOI could constitute a competitive disadvantage.

16. The higher education sector is expanding to include private providers. Such providers would be able to use FOI to discover information about their competitors in the market. If public sector universities were unable to rely on section 43 to protect assets including course materials, they could have to release them to competitors, but be unable to make similar request of those competitors.

17. There are three ways in which a level playing field could be provided here. Section 43 already exists to protect commercial interests. However, the Information Commissioner has in the past been seemingly reluctant to recognise that universities have commercial interests. The forcing of UCLAN2 to release course materials is a prime example of a case in which the private sector would be able to benefit with the public sector unable to protect itself. Section 43 should be amended to encompass a wider understanding, or clearer definition of what constitutes commercial interests.

18. The second option is to keep Universities within the scope of FOI but to exempt those areas which are primarily commercial or operating in an open market place. This model already exists for organisations including UCAS, which is subject to the Act only in relation to some of its functions.

19. The final option, is to bring private providers within the scope of the Act. This is already being considered for MacDonald’s with regard to their educational provision. If private providers of higher education were similarly covered by the Act then this would create a more level playing field.

20. The other area of commercial interest for Universities is wholly owned companies. These do fall within the Act, despite some of them being commercial organisations with a profit making remit. It is difficult for them to operate in an open market when, simply by virtue of the nature of their parent organisation, they are subject to a law that does not apply to their private sector competitors.

Research

21. Colleagues in the research community have long voiced concerns that FOI could pose a threat to their work. In general researchers are keen to share and disseminate their findings: that is the very purpose of research. Many funders of research now require quite rightly, that research findings and data should be released as part of the research, but this is something that should happen at the right points in the research project, under the control of the researchers.

22. There are times during the lifetime of a research project when it would be harmful to share the information. The harm could be commercial, with journals potentially refusing to take and pay for papers based on information that had already been released into the public domain. There is also potential reputational harm if there cannot be a period during which work can be fully peer reviewed and checked for errors which can be challenged. Premature release of research, before it has been checked and validated, could potentially cause public harm, especially in the field of health research.

23. Our research colleagues are also concerned that research partners from the private sector will increasingly be wary of working with Universities in the UK if they feel they are unable to protect and control the data created by the research project. Research is a global market, benefitting the UK economy, and Universities are a key part of this. We should not allow UK legislation to prevent UK researchers from engaging fully in research with partners worldwide.

24. We acknowledge that exemptions exist that might, prima facie, appear to protect research from premature release. As we have already noted the ICO does not always appear to be inclined to support the view that Universities have commercial interests, making section 43 difficult to apply. Section 43 is also problematic as it is not always clear in the early stages of research what commercial value it might have.

25. Section 22 would also appear to be useful as the normal intention of researchers is to publish their research. Funding councils often require research projects to create a data management plan which will include publication of data. However, the Information Commissioner has made it clear that Section 22 applies only to information that is to be published in the near future. Research projects can have very long life spans, especially longitudinal studies. The time between the data collection phase and final publication of the last paper could potentially run into years. Even where a paper has been accepted by a journal, peer review and other preparation can delay publication by many months.

26. It is clear, then that the existing exemptions do not offer adequate protection. We therefore support the proposed UUK amendment to FOI.

Office of the Information Commissioner

27. We welcome the work that the ICO has done to better understand the HE sector. The ICO website and helpline are welcome resources. However, guidance could be clearer and demonstrate a better understanding of the sector. Guidance from the helpline can be vague and occasionally contradictory. Some ICO decisions would appear to show a lack of understanding of the way in which the HE sector works.

February 2012

1 Jiscinfonet Information Legislation and Management Survey 2010 http://www.jiscinfonet.ac.uk/foi-survey/2010/survey-results-2010.pdf

2 ICO decision notice FS50140374, 30 March 2009.

Prepared 25th July 2012