Research There is an unnecessary, complicated, and at times impenetrable, interface between the EIR and FOI as imposed by section 39 exemption; this includes a cumbersome double public interest test. The two key authorities on FOI, the Information Commissioner’s and the Information Tribunal, hold conflicting views on how the interface between the regimes works in practice, as showed by the Rhondda Cynon Taft Borough Council v the ICO case, and clarity would be welcome.
RECOMMENDATION: that the interface between EIR and FOI be made clearer and easier to administer.
3.1.2 Data Protection Act (DPA) 1998
Requesters using the subject access request provisions under section 7 of the DPA often ask for information that is not personal data, which has to be handled under FOI or EIR. Currently, the differing timescales for response permitted under DPA (40 calendar days) and FOI/EIR (20 working days) and the different requirements for internal review are difficult to administer and confusing for requesters; these differences should be reviewed and, ideally, harmonised.
RECOMMENDATION: that the different timescales for response and requirements for internal review should be reviewed and harmonised across both DPA and FOI.
3.1.3 Data Protection Act (DPA) 1998
The interface between DPA and FOI as set out in FOI section 40 is unnecessarily complex, difficult to administer and needs simplification. For public authorities, handling requests that involve category ‘e’ data, which affords special treatment to unstructured personal data under section 9 and provides convoluted exemptions in section 33 A, has complicated matters further.
RECOMMENDATION: that the interface between DPA and FOI is reviewed and simplified.
3.2 Intellectual Property Rights
Universities invest heavily in research and teaching and learning which generate significant amounts of Intellectual Property (IP) for both commercial and non-commercial uses. While we recognise that FOI is a useful and effective tool for the disclosure of public sector information, it is difficult to exempt valuable IP content using the exemptions provided in FOI. invariably leads to difficulties.
There is a provision in the CDPA to permit actions specifically authorised by an Act of Parliament which would otherwise infringe copyright. Current FOI legislation specifically authorises that a copy of the information can be made and disclosed to the applicant. The provision in the CDPA would allow an organisation to make and issue the copy to the applicant without infringing copyright. However, the problem arises when requests for information are made through websites such as www.whatdotheyknow.com which automatically publishes responses and therefore may infringe copyright. This is significant because the automatic publication of valuable IP content, such as teaching and research materials, would significantly disadvantage universities who invest heavily in its creation and would potentially be detrimental to the quality of their teaching and research.
The current exemption under FOI relates to trade secrets and commercial interests, yet not all content protected by copyright can justifiably be withheld under this exemption. As a result, valuable content may be disclosed which, although may not prejudice to any commercial interests, will prejudice legitimate interests of rightholders as they may not be directly commercial. Given the harmonisation of copyright laws with Europe and the requirement that all exceptions and defences under the CDPA are subject to the Berne three-step test as outlined in Article 5(5) of the Information Society Directive, there is little FOI protection for limb 3: ‘must not unreasonably prejudice the legitimate interests of the rightsholder.’
Broadly speaking, FOI blurs the distinction between access to information and subsequent re-use of that information. Re-use of public sector information is sufficiently addressed by a separate piece of legislation and the two actions are clearly distinct from one another. It is unlikely that Parliament envisaged that under FOI valid email addresses would immediately and automatically publish information to websites, which is why little attention has been given to IP rights in disclosed information. This however is in direct contradiction of the EU legislation on copyright and related rights and FOI should recognise the strength and weight afforded to IP as a result of the harmonisation of the legislation and the body of case law that supports it.
RECOMMENDATION: that a new IP exemption is introduced into FOI.
3.3 Publication schemes
While proactive publication serves the purposes of openness and transparency, publication schemes are not an effective delivery mechanism. The University’s website statistics enactment of FOIA might have rendered publication schemes somewhat obsolete.’
Evidence that the publication scheme serves as a proactive mechanism for disclosure that reduces the number of requests is lacking. Taking the subject of the Vice-Chancellor’s expenses, a subject which receives considerable attention under FOI from journalists (in 2011 seven such requests were received), the University found that proactive disclosure via disclosure logs or the publication scheme does not, unfortunately, help meet these requests as no two requests are identical and therefore each request has to be considered separately to ensure our obligations under section 1 FOI is discharged. While undoubtedly serving the interests of transparency and public accountability, the time involved with disclosing this information means a significant diversion of resources away from the University’s core activities. On balance the University believes that the requirement to develop and maintain a publication scheme should be dropped from FOI.
RECOMMENDATION: that the requirement for publication schemes be removed from FOI.
The requirement for a publication schemes is explicitly stated in the FOI, but not in the EIR which only recommends ‘active and systematic dissemination’ of environmental information. The different regimes for proactive dissemination leads to confusion and implementation would be improved if the requirements were standardised.
RECOMMENDATION: that the provisions of proactive dissemination of information in EIR and FOI be reviewed and standardised.
3.4 Vexatious and repeated requests
The threshold for establishing that a request is vexatious or repeated under FOI section 14 is set too high and the guidance provided from the ICO around the issue of vexatiousness focuses on the request rather than the requester. However, the reality of handling FOI on a day to day basis shows that it is a small number of requesters who place disproportionately large resource burdens on the University, rather than numbers of requests themselves. While these requesters stop short of being vexatious as defined according to the guidance issued by the FOI, their frequent requests for information do have significant resource implications for the University. One requester made nine FOI requests within 24 hours, another requester made ten requests within a month. Neither could be regarded as vexatious under the current guidance issued by the ICO.
4. What are the strengths and weaknesses of the Freedom of Information Act?
4.1 The appropriate limit
FOI section 12 provides a mechanism for public authorities to legitimately refuse requests that exceed a certain limit, two and a half working days (18 hours) or £450 for universities. This mechanism is in principle a strength of FOI striking a balance as it does between a public authority’s obligation to disclose information on the one hand with consideration of the costs of doing so on the other.
However the activities permitted to be considered under The Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004 are too restrictive and, crucially, do not include the time taken to redact the information; this is a weakness.
In practice, the time taken to redact information is often the most labour intensive part of processing FOI requests. This is particularly so for requests that fall into the ‘provide all correspondence relating to…’ category. Such requests can cover thousands of emails, which are very likely to contain information that often engage several exemptions, most commonly personal data, and will require significant redaction before disclosure. The process of redaction can be done manually with a black marker or electronically using dedicated software, but it is invariably slow, non-automated and necessarily painstaking and methodical. In information rights case law redaction has not been allowed to be included in as part of the ‘extraction’ limb of the Regulations.
RECOMMENDATION: that The Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004 be amended to make explicit allow for redaction to be considered in any appropriate limit calculation.
5. Is the Freedom of Information Act operating in the way that it was intended to?
5.1 Universities as public authorities
The University currently receives just over a third of its income from the public purse. Following the introduction of the new fee regime, the share of the public money that the University receives will decline even further over the next two years. Given the decline in the percentage of
5.2 Round robin requests and commercial surveys
It is unclear whether FOI is operating in the way it was intended to. The original objectives of FOI were to provide openness and transparency, accountability, better decision- making and public involvement in decision-making.
Due to the unique position of universities as quasi-public bodies FOI has not fulfilled the above objectives and there have even been some peculiar effects. One of these is the number of round robins and requests it has to deal with from commercial organisations that are simply fishing for information to enable them to bid or compete for work. These are time consuming to deal with and it is questionable what public interest they serve.
These commercial surveys are not made for any of the purposes above for which the FOI was enacted and are being used by commercial organisations as a free mechanism to obtain commercially useful information at the expense of the public purse.
RECOMMENDATION: that round robin commercial survey/fishing requests are no longer deemed to be valid requests made under the Act or that a charge for time taken to respond can be levied prior to the disclosure of the requested information.
6.3 Clear statement of intention to treat requests under FOI
We are concerned that there is no obligation for a requester to state clearly that they wish their request to be processed under FOI. While we understand that the rationale that the public’s right to access to information should not depend on detailed knowledge of the law, the unintended consequence of this is that it leads to confusion over whether requests should be death with under FOI or treated as routine correspondence, which in turn leads to requests not being handled correctly. The point is best illustrated with an example drawn from recent experience. A member of the public recently asked for information from a University Professor and did not refer to the legislation. The Professor treated the request as a routine piece of correspondence and in doing so breached of many of the procedural provisions of FOI, including the obligation to state whether or not the information is held, the duty to provide advice and assistance and failure to provide a refusal notice. These were unintended and unfortunate breaches that occurred because of the confusion over how to identify a request rather than any attempt to thwart the right of access to official information. inaccuracy in reporting FOI statistics. The criteria for a valid FOI request – provision of a name, an address for contact and a description of the information sought - is easily met and could apply to the many thousands of requests for information that the University deals with every year. Indeed under such criteria, a simple request for a prospectus for instance could be deemed a valid request. However it serves neither the public’s nor the University’s interests to treat routine requests in this way and count them as legitimate FOI requests.
Such confusion would be remedied by the simple requirement that requests should state whether they wish to be dealt with under FOI. FOI has been in operation for 12 years and is now widely known among the public so it is difficult to see how such a simple measure, which would bring considerable clarity and consistency to the process, would hinder the public’s right to access official information.
RECOMMENDATION: that a new requirement to state that requests should be dealt with under FOI be introduced.
6.4 Level the playing field
We are concerned that private universities are not covered by FOI and this disadvantages universities that fall within the definition of public authorities under Schedule 1 of FOI. Universities as public authorities are compelled to divert considerable resources, including for instance employing dedicated staff to work on requests, away from its core business functions of teaching, learning and research to ensure compliance; this is not something that private HE institutions are required to do.
Moreover FOI obliges public authorities to disclose information that may be commercially sensitive which gives a distinct advantage to private universities as they fall outside the scope of Schedule 1. In particular, teaching and research materials, and the IP rights within them, are difficult to protect from disclosure under FOI (see 1.2 above). The only real protection afforded under FOI is the section 43 prejudice to commercial interests exemption, which being qualified and therefore subject to the public interest test and defined very narrowly by the Information Commissioner who tends to make a hard distinction between what is ‘commercial’ and
‘financial’ that effectively limits the application of the exemption considerably, offers little real protection.
Given the limited protection offered by copyright law UK universities are at a disadvantage when competing with worldwide institutions that do not have to deal with FOI type
The University believes the lack of an equivalent ‘research exemption’ that is available to Scottish universities, which protects university research information from premature disclosure in specific instances, puts UK universities at a distinct competitive disadvantage and undermines existing review processes, such as peer review, that are designed specifically to ensure quality assurance. In particular there is a need to protect the manner and timing of publication of research information and results to ensure that the quality and reputation of UK research is upheld and that its competitive position is not undermined. A research exemption will also encourage research partnerships with commercial and charitable bodies; and mitigate the risk of a ‘chilling effect’ on research, whereby researchers become unwilling to engage in controversial areas, or that subjects will be unwilling to participate, because such information may be disclosed under FOI.
The University endorses Universities UK view that peer review is fundamentally important in ensuring the strength of the UK research base: ‘Peer review improves research quality, by scrutinising research to ensure that verification and reproducibility are possible. [It has] an important policing role, ensuring adequate acknowledgement and reference to previous research, and helping to identify fraud and plagiarism…. [and] in medicine, the value of peer review has been emphasised as a means of protecting the public against the threat that poorly designed and executed research, with dubious findings, will enter the public domain. ’
Unlike the EIR, which includes a protection for ‘material which is still in the course of completion, to unfinished documents or to incomplete data; or... the request involves the disclosure of internal communications’, there is little protection offered to research materials under FOI.
RECOMMENDATION: that research information should be exempt from FOI requests under certain, limited circumstances: where information is part of an on-going programme of research; where there is an intention to publish a report of the research and disclosure would substantially prejudice the programme; and the interests of the participants, the public authority or the publisher are harmed.
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