FOI Man responds to a blog post by Universities UK, the representative body for Universities and Higher Education in the UK.
It’s fair to say that when I made the decision a few weeks ago to remove my mask and reveal my identity to anyone who was interested, I didn’t expect that one of my first posts would be to take task with the representative body of the sector that I work in. It’s probably a good idea if I first of all remind you all that my utterances here reflect my own personal opinions and should not be ascribed to my own employer.
So having got that disclaimer out of the way, what is it that’s got me so hot under the cape (as it were)? It’s a blog post from Universities UK, the self-styled representatives of universities and higher education in the UK. In this post, UUK announce that they are lobbying peers to add amendments to the Protection of Freedoms Bill being debated in the House of Lords today. The most significant of these amendments would create a new exemption.
The exemption that they propose is based on section 27(2) of the Scottish Freedom of Information Act, and is designed to protect pre-publication research data. UUK believe that the current Act doesn’t provide adequate protection for such information. So let’s take a look at that claim.
The new exemption would in practice be an amendment of section 22 of the FOI Act, which gives a qualified exemption protecting information that is intended for future publication. Let’s back up there. Section 22 already protects information that an organisation intends to publish in the future. That’s one exemption that universities could use to protect research in advance of publication.
Are there any other exemptions that might apply? Well, if the research contains commercially sensitive information or trade secrets, there’s an exemption at section 43 that you might have heard of. If it contains sensitive personal information, section 40(2) will almost certainly apply, and if its been provided by a third party during the course of research, then section 41 might also be useful. How many exemptions do UUK think we need to provide comprehensive protection of pre-publication data?
Well, of course, we might well think that UUK has formed this opinion because in its experience, this issue is coming up all the time. Perhaps there are several ICO decisions which make clear that the existing exemptions aren’t sufficient. So I did a little exercise this morning on the way to work checking the ICO’s decision notice database to see how many cases involved higher education institutions using the existing exemptions to try to protect research information. And do you know what I found? There were three. One was a PhD thesis successfully protected using sections 22 and 43. Another was about animal research. And the final one involved research data and other information relating to the MMR jab furore a few years ago (and as we all know, the research had been widely publicised by the doctor in question). Firstly, do UUK really want to protect such research from disclosure (that’s a bit of a PR own-goal if they do, surely)? Secondly, even if they do, the amendment they propose won’t achieve this.
So I thought, I wonder how many decisions of the Scottish Information Commissioner relate to the equivalent Scottish exemption. I checked his decisions database. There were NO DECISIONS.
(Incidentally, some of you will remember the Philip Morris International request to Stirling University a little while ago. I don’t know the latest on this, but at the time when this was all in the Press in September, the only thing that the Scottish Commissioner had done was to say that the University couldn’t refuse the request as being vexatious. The University was at the stage of providing a revised response, so despite all the noise, there was still a way to go before anyone came anywhere near forcing the University to disclose the data to Philip Morris.)
So UUK are campaigning for an exemption that nobody needs and that even when it does exist isn’t used. Odd.
So why does it bother me? Well, first of all, there are plenty of exemptions in the existing FOI Act, and if anything they could do with being simplified and reduced in number. Adding another one – even a completely useless one – just sends out the wrong signal. Secondly, the fact that so many universities think that it’s needed (and I’m assuming that several must feel the same way for UUK to want to give an opinion) suggests to me that there is a lack of understanding in higher education as to how the Act works.
But there’s something else. It’s not just this amendment that bothers me. It’s the attitude of UUK to FOI (if that’s not too many TLAs in one sentence). The UUK blog, which I’m presuming is intended to give the official view of the organisation and its members, says that it thinks FOI is the wrong tool to provide transparency in higher education. It adds:
“We don’t think Parliament envisaged how it would apply within universities, and especially to university research, when the Act was passed in 2000. In any case, since that time, the proportion of funding universities get from public sources has fallen considerably, and will continue to fall, making their inclusion within the definition of ‘public authorities’ all the more strange.”
I’ve heard that funding argument a number of times, but let’s leave aside the fact that the Government is considering bringing McDonalds’ vocational qualification within the bounds of the FOI Act, let alone degree-awarding bodies. I’m not an expert by any means on the funding of universities, but it does seem to me that even with the current reforms to higher education, they will still be receiving a large proportion of funding, one way or another, from the public sector. The mechanisms may be changing, but ultimately they’re still, and will continue to be, public bodies.
Tim Turner wrote recently that he would have a perverse admiration for anyone who had “the courage to oppose FOI actively”. Sadly, UUK are the ones with that courage. And unfortunately that attitude appears to pervade the higher education sector generally. Only last week, Times Higher Education included an article about “bizarre FOI requests” that “waste university resources”. The timing is crucial – just before the Lords debates the Protection of Freedoms Bill, and as the UUK blog points out, in advance of the crucial post-legislative scrutiny being carried out by the House of Commons Justice Select Committee.
The question is: do universities want to be seen as modern, progressive organisations, engaged with the world at large? Or do they want to be seen as elitist institutions, locking up their knowledge in ivory towers? It is a fabulous privilege to be funded to increase society’s knowledge. Stubbornly refusing to accept and embrace FOI as a method of engaging with the world is going to leave people with a very old-fashioned image of universities, that in my experience is not reflective of their true ambitions.