Tuesday, 15 May 2012

The thawing effect? – the ICO and Universities

Apologies for not having posted anything on this blog for ages. I have been writing at various points here and here and matters as diverse EU cookie legislation and Huddersfield Town’s promotion push have been dominating my thoughts.

The FOIA post-legislative scrutiny sessions close this week.

From a Universities perspective, as it stands, there are both positives and negatives.

On the negative side, the MOJ memorandum barely mentioned Universities and the unique characteristics of the University / FOI experience - research data, public/private funding - may not get the legislative amendments at this stage. The ICO has been dismissive, both in print and in his own verbal evidence to the committee of the Universities' case.

On the positive side, I think that the keen participation in the process has raised awareness of some of the more University-specific challenges in terms of the Act. This may be resulting in a more sympathetic ear from the ICO in Decision Notices (DNs) going forward, especially as the ICO’s position on Universities is that the current exemptions are sufficient.

They will now have to prove this and three recent DNs bear this out. They concern research data and course material, fundamental areas for Universities and FOI.

Research data
The discussions around ‘draft research’ in this DN from February 2012 is a good start:

The Commissioner considers that whilst there is a strong public interest in the disclosure of information which could further public understanding of climate change, the University has provided very strong arguments to demonstrate that disclosure of the information withheld in relation to point 1 of the request would have a significant chilling effect upon the sharing of draft research in the peer review process. The Commissioner considers that as the withheld draft in this case is significantly different to the later published version this adds considerable weight to this argument and therefore adds significant weight to the public interest in favour of maintaining the exception. (Para. 44)

This request and decision notice was conducted under the Environmental Information Regulations 2004 (EIR), which some of the high profile research data request cases have been (the other example being ‘tree ring’ data at Queen’s University Belfast). EIR, of course, is not currently under scrutiny.

A request for research data made under Freedom of Information has been the subject of a DN from April 2012:

The complainant requested information which was used to produce a particular report entitled “Alcohol Involved Deaths”. Bangor University (‘the University’) refused to provide the information on the basis that it had been provided to it in confidence and it was therefore exempt under section 41(1) of the FOIA. The Commissioner’s decision is that the University correctly relied on section 41 of the FOIA for the non disclosure of the requested information. (Summary)

I think that UniversitiesUK is right to raise some of the specifics around research data. But, with a research data exemption unlikely any time soon, there is clearly still mileage in the exemptions we already have.

Course material
One of the other great worries for Universities and FOIA is the potential for course material to be requested. The DN involving the University of Central Lancashire (UCLAN) and ‘homeopathy’ course materials made a big impact on University sector’s perception of FOIA.  Yet a much newer DN from April 2012 finds the Information Commissioner upholding a University’s reliance on section 43 ‘Commercial interests’ to exempt the disclosure of course material. The nature of the courses in this DN are, in many ways, as distinct and specialist as the ‘homeopathy’ course in the UCLAN decision. Yet the following paragraph from the Decision Notice is likely to be a comfort to any University worried about FOIA and course material:

In this case the Information Commissioner is satisfied, for the reasons given above, that disclosure of the requested information would be likely to prejudice the commercial interests of the university. In particular, disclosure of the courses and modules (over which it held intellectual property rights) would provide competitors with a clearer picture of its teaching and delivery, and this would potentially damage the public authority’s position as a distinctive provider, with a consequent effect on its attractiveness to students. The exemption is therefore engaged. (Paragraph 19)

I would guess that the growth in private HE providers and a more competitive environment can only strengthen the Section 43 case for Universities in these cases.

It is part of the rhetoric of every FOI officer that the ICO will judge each case on its merits and the onus is on every public authority to demonstrate a strong ‘case’ for each exemption it applies.

However, these Decision Notices surely make encouraging reading for those in the University sector with concerns about FOIA. It is unlikely that they will make the headlines. The successful use of exemptions, in many cases examples of the act working well, rarely does.

They also tend to back up the ICO’s view that the existing exemptions may be appropriate, if effectively argued and evidenced – are Universities getting better at arguing their case? Could it be that the ICO is warming – slightly – to some of the FOIA concerns of the University sector?


  1. The thing every FOI public authority needs to concentrate on is the quality of their arguments when they face the ICO. But this means even at the first refusal to the applicant, they need to show evidence of real harm to justify withholding. Many organisations - and this is not a criticism of Universities in particular - put forward weak, ill-thought arguments, and are seemingly surprised when they fail.

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