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A Double-edged Sword: What Are the Implications of Freedom of Information for the HE Sector?

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Amy Gibbons reports on the second in a series of workshops organised by the Research Information Network to explore the impact of the Freedom of Information Act on the Higher Education sector, held at University College London on 1 April 2011.

Since 2008 the Research Information Network (RIN) has organised a series of workshops dedicated to the dissemination of knowledge about the Freedom of Information Act (FoIA) 2000. In previous years these workshops have centred on how the legislation could be used as a research tool [1]. In response to a growing media focus on the Higher Education (HE) sector, this year's workshops (held at Manchester, UCL and Strathclyde universities respectively) sought not only to continue to raise awareness but also to address the potential impact of the legislation on universities in their capacity as 'public bodies'.

This aspect was covered in this journal by Steve Bailey when the Act was first implemented in 2005 [2] but it has subsequently received little media coverage, until recently. In November 2009, weeks before the United Nation's Climate Change Conference, the University of East Anglia's Climate Research Unit (CRU) came under scrutiny over a series of hacked e-mails which were obtained and published by the press. In what then became dubbed the 'Climategate' affair scientists were accused of manipulating data to support their research claims. UEA subsequently set up two inquiries, the Independent Climate Change E-mails Review (ICCER) headed by Sir Muir Russell, and an independent Scientific Appraisal Panel (SAP), headed by Lord Oxburgh. These culminated in a Home Affairs Select Committee Investigation [3] to review these inquiries. One of the outcomes of the Muir Russell report [4] encouraged the Information Commissioner's Office (ICO) to review the US Congressional amendment to Public Law 105-277, otherwise known as the Shelby Amendment, which defines research data as:

'the recorded factual material commonly accepted in the scientific community as necessary to validate research findings, but not any of the following: preliminary analyses, drafts of scientific papers, plans for future research, peer reviews, or communications with colleagues.'

Concurrent to this investigation, representatives from the HE sector and the ICO convened a roundtable in September 2010 to discuss the implications of the legislation for the sector. In particular they focused on three cases of concern; the first was UEA, the second was a request for tree ring data at Queen's University Belfast [5][6] and finally a request for course materials on a Homeopathy course at the University of Central Lancashire (UCLAN) [7]. The Shelby Amendment was discussed in the meeting but was regarded as too complex to integrate into the UK FoIA given its degree of entanglement in the 'complex federal legislative environment in the US' and the perception that 'any change along these lines would require a change to the primary legislation.' The roundtable agreed to establish a working group to represent the HE sector and work with the ICO in 'developing sector-led and sector-specific guidelines around the issues of research data, teaching materials and IPR' [8]. This group met for the first time earlier this year and agreed to create a research sub-panel and clearer guidance for scientific material by the start of the new academic year. A remit for the broader sector, which was latterly used for the RIN workshops, was defined in this panel:

'The ICO wants to know what the HE sector feels the risks are, which data is of most concern which datasets are suitable for publication and which need to be withheld, with a view to finding out what the ICO needs to cover in subsequent guidance.' [9]

Introducing the day's events was Professor Robert Hazell, Director of the Constitution Unit at UCL who gave a précis of his long history of researching Freedom of Information in Australia, Canada, New Zealand and, more recently, the UK. He spent several years as a senior civil servant prior to joining the Unit and has since acted as an advisor to the Department of Constitutional Affairs on FoI. His research has included how the FoIA has affected local government, Parliament and Whitehall; the latter resulting in a co-authored text 'The Impact of the Freedom of Information Act on Central Government in the UK: Does FOI Work?' [10].

FoI and Research: Setting the Scene

Dr Michael Jubb, Director of the Research Information Network and Dr Matthew Dovey, Programme Director, Digital Infrastructure JISC

Dr Jubb started the proceedings by clarifying that universities fall under the FoIA 2000 as 'public authorities' (PAs) due to the funding they receive under the Further and Higher Education Act (FHEA) 1992. Unlike other PAs however, universities are also charities with obligations under the Charities Act 2006 [11] and the flow of public funding that they receive is gradually diminishing. Further, universities operate in a global marketplace competing for research funding, students and accreditation. FoI poses concerns relating to intellectual property rights and commercial confidentiality. He discussed the progress being made by the HE/ICO roundtable and hoped that these workshops would provide some salient points which could be fed into this process. He concluded by referring to a useful FAQ site on FoI in HE compiled by the Joint Information Systems Committee (JISC) [12].

Dr Matthew Dovey then spoke briefly about the digital infrastructure underpinning the compliance of requests. Part of JISC's remit is to provide IT infrastructure for the UK research network: this is known by most universities as Eduroam. There is a push in the sector to adopt a more transparent outlook in line with current government policy and as such, more universities and councils are adopting more open access to research, depositing theses online and disseminating working papers and collaborating through social networks. Dr Dovey questioned what impact FoI would have on this historically open sector and its way of working. For example, would it affect contributions to the HEFCE Research Excellence Framework (REF)? What will happen if traditional forms of access are closed off to researchers due to the rigidity of access agreements? In short, to what extent will the legislation affect researchers' ability to do their jobs?

Freedom of Information: A Brief Guide

David Evans, Information Commissioner's Office

The overall message imparted in this presentation was that the ICO regulates on a case-by-case basis, i.e. 'what's in front of us'. The ICO has no say in the drafting of the legislation, however Mr Evans expressed hope that through participation in these events, they would have a clearer picture of the sector and so understand some of the concerns that may affect HE institutions' decision-making processes. He discussed examples of historical information that could have been more beneficial to the public were they released in their time. These included details of the compensation offered to victims of the Thalidomide drug and the report, buried for 30 years, into the fire at a nuclear reactor at Windscale (Sellafield, Cumbria, UK). He argued that some material had been released in other cases due to requesters using international FoI laws to access copies of material held outside the UK, for example US copies of safety information relating to the UK Trident nuclear missile.

Mr Evans cited the request to view materials on UCLAN's Homeopathy BSc course as 'good practice', where the FoIA had been 'properly used'. The requester had asked for copies of the material distributed to the undergraduate students on the course including notes, PowerPoint slides and any reading recommendations. This raised discussion about the commercial interests of universities. Interestingly the ICO decision notice in this case states that the requester, a UCL professor, argued that the institution was confusing commercial interests, s43 (2), with financial interests [7]. Mr Evans noted however that, at the time of the request, the Homeopathy course was no longer running and that there is no case law to indicate how a live course would be treated under the Act.

In the second half of his presentation, Mr Evans ran through the key areas of the law for both requesters and compliance officers. He covered issues ranging from how to recognise a 'valid' enquiry (for example, the use of pseudonyms by requesters invalidates their request) to the application of exemptions, refusing a request and what constitutes a 'vexatious' requester. He pointed out that the legislation is simply an access regime: if there are requesters who are seeking to use it for monetary gain then the institution is well within its rights to issue a bill for any reuse, as recompense. This strategy has been adopted by the Environment Agency for requests submitted by commercial organisations.

Challenges for FoI Researchers

Dr Ben Worthy and Gabrielle Bourke, the Constitution Unit, University College London

The purpose of this presentation was to report initial findings from research conducted into the sector. After exploring the case law mentioned above and comparative international studies, Dr Worthy and Ms Bourke determined that the key challenges to researchers appeared to be the time devoted to processing FoI requests and the implications for copyright and intellectual property rights of the institutions. Further, the applicant blind nature of the legislation prevents the institution knowing the rationale behind a request and how the information will be portrayed in the public domain. To illustrate this point they invoked the case of Dr Wakefield, a lecturer who was conducting controversial research into potential correlations between MMR vaccinations and autism. He was the subject of a FoI request which not only asked for his research but his personal details including salary.

Web sites also exist to encourage the submission of requests, the most prominent being WhatDoTheyKnow.com [13]. The presenters found a low level yet continuous interest in universities on the site. They also discussed Academic FoI.com [14], a Web site dedicated to publishing details through FoI of HEIs' activities often by means of blanket requesting. All of this creates a culture whereby institutions will be very careful about acting in a particular way in order to avoid being publicly admonished through such sites. There are also concerns that it will restrict research activity, partly due to the uncertainty of what could be picked up as the next big story by the media.

The collation of research takes several forms across the science and social science disciplines; datasets might be de-contextualised and published online but what about research papers or interview data? The early publication of papers would have severe consequences for the competitiveness of universities. Moreover, publishing papers on the Web would almost certainly lead journals to reject submissions as they are conditional on sole publication rights. Publication schedules raised further concern; articles can often take months if not years to go through the peer-review process. The same is true of patent applications, where patents are granted based on the first to file. s22 of the FoIA exempts information from release if it is due to be published within a reasonable length of time. Whilst there is no precedent in case law for how long this would be, we were assured during the workshop that months or years were unlikely to be considered favourably by the ICO.

The Freedom of Information Act as a Tool for Research

Dr Michael Kandiah, King's College London

The FoIA is tailored to openness but is it tailored to historians? There were already mechanisms in place for historians to review documents and the framing of the legislation runs contrary to the natural process of sifting through historical documents in their entirety. Dr Kandiah discussed how the introduction of FoI might be detrimental to the historical discipline and research. Despite information being released sooner than it might otherwise be it is fragmented, revealing only snapshots of de-contextualised history at any one time. Prior to the advent of the FoIA it was difficult to write history if it did not fall within the 30-year rule (recently dropped to 20 years following the Dacre Review [15]).

Knowledge about the FoIA is increasing from the 'bottom up', with students teaching their supervisors about this new access route. The focus then becomes 'what can I get out of an archive?' or 'what information is likely to be present?' as opposed to searching through documents and finding a narrative. If information is released piecemeal then researchers are likely to have further questions and as such further requests based on the information they have received. This risks not only elongating the process for researchers but also increasing the possibility that they become identified, by FoI request processers, as vexatious. To avoid such an eventuality it is helpful to co-operate with the institution and students are starting to conduct interviews, with archivists and other gatekeepers to information, in an attempt to better assess what information could be made available to them. This raises an interesting referencing question; how should material received in the post be cited? Researchers need to factor all these considerations into their timescales and plan for any bottlenecks in the system; any information requiring a public interest test, for example, may take longer to process. Dr Kandiah closed by touching on the problematic future scenario of having 'open access [but] empty archives' [16], a situation that has already been observed in Sweden (the first country to enact FoI law in 1766). If information is not written down it does not exist to be requested under FoI and as such, a bit more history is lost. Their experience could act as a barometer for the political reality of the future of FoI in the UK.

Discussion

The afternoon discussion sessions offered an opportunity to elaborate and debate these issues. The room was split into three groups to allow audience members to participate in deeper discussion over the impact of the legislation on the HE sector and share their own experiences of using or complying with the Act. The groups then reconvened to discuss the themes that arose. The questions below are an amalgamation of the talking points throughout the day:

  • What types of information would institutions be comfortable releasing? Sensitive material was seen as particularly problematic. Despite personal information provisions in the Act, other aspects of empirical research aimed at contextualisation such as environment, body language and other observations could also have an impact on how the research was interpreted externally.
  • How would public/private partnerships be affected by the knowledge that any information produced during such collaborative activity could be subject to access legislation? If FoI related clauses were embedded in contracts would they hinder collaboration or damage working relations?
  • Should there be training to further knowledge about the legislation's impact on the HE sector and what form should this take?
  • To what extent could the Scottish research exemption, 27(2), assist in considering issues in HE and would it offer relief if adopted into the UK law? Margaret Keyse, Head of Enforcement at the Scottish Information Commissioner's Office, informed delegates at the Strathclyde workshop that there was no existing case law in this area to use as a precedent when discussing how HE sector cases may be treated more generally.
  • What is a reasonable expectation of a future intention to publish?
  • How would the legislation affect relations with other universities and international partners? On a wider economic scale, it is also of concern whether it is in Britain's interest to jeopardise the competitive nature of universities. David Evans commented that if information is held, then it must be considered under the Act. If for example, a UK institution is working on an EU project but has a copy of the information, then they are required under the law to assess it.
  • The cold nature of requesting under the Act is antithetical to the open nature of research and researchers alike. One academic relayed that a colleague had been subject to a FoI request. He had said it was not the request for information about his research that was problematic; indeed he would have been pleased to discuss his research with the individual requester. However, such a request under the provisions of FoI law closed off any opportunity for discussion or for contextualisation and gave the impression, moreover, that any other route was not to be trusted.
  • What would be a reasonable expectation of confidentiality and what could therefore be considered an actionable breach? The law offers a retrospective assessment of information so if research councils have requested information be kept, or even if records management skills are not particularly deft, then all this is open to access.
  • What if a researcher cannot recall what happened at a particular event, or is unable to provide details to contextualise their research? Whilst a solution to this scenario remained unclear, it was suggested that research does not need to be analysed as this would be doing work for the requester; but the information could be supplemented by explanatory guidelines.

Conclusion

Despite the implementation of the FoIA over 5 years ago, the impression garnered from this workshop was one of ambiguity and apprehension. Approximately 40 people from across the sector participated in the day, evidence of a growing interest in the topic. The overall message was undoubtedly one of clarification and the need to train academics about the use of FoI and their obligations if sent a request. Several participants voiced their desire for these points to be fed into ongoing discussions at a policy level about the applicability of FoI to the HE sector. This workshop represented a first step to achieving this end and accomplished the RIN's aim to draw out some of the challenges the legislation poses to the HE sector.

Presentation slides from the day can be found on RIN's Web site, along with a summary of the salient points from the three workshops [17].

References

  1. RIN Web site 'Researchers use of freedom of information a workshop', September 2008 http://www.rin.ac.uk/news/events/researchers-use-freedom-information-workshop
  2. Bailey, S., "Assessing the Impact of the Freedom of Information Act on the FE and HE Sectors", January 2005, Ariadne Issue 42 http://www.ariadne.ac.uk/issue42/bailey/
  3. "House of Commons Science and Technology Committee 'The Reviews into the University of East Anglia's Climatic Research Unit's E-mails', First Report of Session 2010 11", October 2010 http://www.publications.parliament.uk/pa/cm201011/cmselect/cmsctech/444/444.pdf
  4. Russell, M. 'The Independent Climate Change E-mails Review', July 2010 http://www.cce-review.org/pdf/FINAL%20REPORT.pdf
  5. Keenan, D.J. 'Tree Ring Data at Queen's University Belfast' blog entry, 26 November 2011 http://www.informath.org/apprise/a3900.htm
  6. ICO Decision Notice FS50163282 Queen's University Belfast, March 2010 http://www.ico.gov.uk/~/media/documents/decisionnotices/2010/FS_50163282.ashx
  7. ICO Decision Notice FS50140374, University of Central Lancashire, March 2009 http://www.ico.gov.uk/upload/documents/decisionnotices/2009/fs_50140374.pdf
  8. 'Roundtable meeting between Information Commissioner's Office and Higher Education Sector to discuss the implications of Freedom of Information for the Sector', September 2010
    http://www.ico.gov.uk/~/media/documents/library/Freedom_of_Information/Research_and_reports/Roundtable_meeting_ICO_and_HE_Sector_on_FOI_29092010.ashx
  9. First meeting of the ICO Higher Education sector panel on FoI and DP, January 2011 http://www.ico.gov.uk/~/media/documents/library/Freedom_of_Information/R...
  10. Hazell, R., Worthy, B., Glover, M. (2010) "The Impact of the Freedom of Information Act on Central Government in the UK: Does FOI Work?" Palgrave Macmillan: Basingstoke
  11. HEFCE, Regulating higher education institutions as charities' http://www.hefce.ac.uk/finance/charities/
  12. The JISC "Freedom of Information and research data: Questions and answers" Web site, December 2010
    http://www.jisc.ac.uk/publications/programmerelated/2010/foiresearchdata.aspx
  13. WhatDoTheyKnow.com Web site http://www.whatdotheyknow.com/
  14. Academic FoI Web site http://www.academicfoi.com/
  15. The Government Response to the 30-Year Rule Review Web site, February 2010
    http://www.justice.gov.uk/about/docs/government-response-30-year-rule-review.pdf
  16. Flinn, A., Jones, H. (2009) "Open Access, Empty Archives?" Routledge: London
  17. The RIN "Freedom of Information and HE researchers - second in a series of regional workshops" Web site
    http://www.rin.ac.uk/news/events/freedom-information-and-he-researchers-second-series-regional-workshops

Author Details

Amy Gibbons

Doctoral Researcher
Department of Organisation, Work & Technology
Lancaster University

Email: a.gibbons1@lancaster.ac.uk
Web site: http://www.lums.lancs.ac.uk/phd/profiles/amy-gibbons/

Amy Gibbons is a doctoral researcher at Lancaster University, where she is studying how information is classified and legitimated under the Freedom of Information Act. In 2009 she spent three months on internship in The National Archives' FoI team, where she researched 'privileged access arrangements' for academic researchers in government departments. She has presented at conferences held by The National Archives, the Research Information Network and the Surveillance Studies Network. Her wider research interests include data protection, information management and mechanisms of surveillance and privacy.

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Date published: 
4 July 2011

This article has been published under copyright; please see our access terms and copyright guidance regarding use of content from this article. See also our explanations of how to cite Ariadne articles for examples of bibliographic format.

How to cite this article

Amy Gibbons. "A Double-edged Sword: What Are the Implications of Freedom of Information for the HE Sector?". July 2011, Ariadne Issue 67 http://www.ariadne.ac.uk/issue67/rin-foi-rpt/


article | by Dr. Radut