The Exemption Index: Section 22A – the exemption for unpublished research data

Exemption Index logoFOIMan applies The Exemption Index to the new exemption for research data.

Summary

For the first time in a little while we have a new exemption in the Freedom of Information Act. There is no case law, and no guidance – yet – from the Information Commissioner. So I’m going to gingerly feel my way through the darkness and give you some first impressions of what this exemption will mean.

We have some clues. The exemption came about as a result of lobbying from universities during the post-legislative scrutiny. As usual with any legislation we can see what Ministers said during the passing of the Act in Hansard. And in this case we also know that the exemption is based on a similar one in the Scottish legislation – so we can see how that exemption is applied north of the border.

David Willetts, Minister of State in the Business, Innovation and Skills Department, explained during the Intellectual Property Act’s passage through Parliament that:

“The new exemption…should give substantial reassurance to the academic community that important research and related information obtained or derived from ongoing research programmes will receive appropriate protection under the FOI Act.”

Information affected

Research data where there is an intention to publish a report of the research and disclosure would or would be likely to prejudice the research, participants in the research, or the interests of a public authority.

Things that FOI Officers need to know

  • There is nothing to say that only academic institutions can benefit from this exemption – any public authority conducting research could use it.
  • The exemption is potentially very broad. This is implicit in the fact that it exists in addition to the section 22 exemption. The very fact that Parliament thought that a further exemption was necessary indicates that it provides more protection than that original exemption.
  • David Willetts confirmed this in Parliament when he said “[s.22A] builds on the protection offered by section 22 by providing specific protection for material that is part of a research programme whose results are intended for publication. But the protection it offers is not just for the results; it extends to any information that is obtained in the course of, or is derived from, a research programme.” The implication appears to be that the exemption will cover any information related to the research programme – even information that will not be published as part of the intended publication.
  • There is no time limit for publication given in the section 22A. This is also the case for section 22, though the length of time before publication has often been a factor that the Information Commissioner has focussed on when assessing the public interest in disclosure. My suspicion is that the Commissioner and Tribunals will accept that the period of pre-publication will in practice be longer for research information. Partly this is due to the distinction that Parliament has made for this data. The exemption is an explicit recognition that such data may need to be kept – unpublished – for much longer periods. This is even more obvious in the Scottish legislation on which the exemption is based. The future publication exemption is time-limited to an intention to publish within 12 weeks. No such time-limit applies to the research data equivalent.
  • The Scottish Commissioner’s guidance on the equivalent exemption in FOISA suggests that if at any point a decision is taken not to publish the research, then the exemption will cease to apply.
  • Note that the exemption is a prejudice-based exemption. As with other similar exemptions, it will be necessary to demonstrate firstly that the exemption is relevant – is it related to a research programme; secondly what the prejudice or harm would be; and thirdly how likely that prejudice will be – is it a case of “would” or “would be likely”.
  • It is subject to a public interest test – so you’ll need to balance the arguments for and against as with other qualified exemptions.

Things that requesters need to know

  • Even in Scotland, the equivalent exemption has not been tested – there are no decisions relating to this that have been taken by the Scottish Commissioner. So we’ve got very little to go on here.
  • The Scottish Commissioner’s guidance points out that during parliamentary debate in Scotland, it was stressed that the intention was that the exemption should be used for “genuine academic research” as opposed to “simple data collection or the analysis of such data”. As I’ve written above, there is nothing in the way the UK exemption is worded to clearly rule out its use by public authorities outside academia. However, it may be that future challenges could turn on this definition of “research programme”.

Essential case law

  • As indicated, there is a sparcity of case law to help with this.
  • Decisions mentioned in the Section 22 Exemption Index may be of some help – especially those relating to academic bodies.

Recommended reading

FOI Man says…

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