Tag Archive for Higher Education

University FOI Stats 2016

FOIMan reviews JISC’s latest report on FOI in higher education.

There aren’t that many sources of information on FOI performance. Central government of course publishes statistics on its own compliance, but outside of Whitehall, the availability of statistics on how public bodies apply FOI is ironically pretty limited. If you want to know more about sources for FOI statistics, I wrote about it for the FOI Journal last year. One of the sectors that does publish information every year is the higher education sector.

Every year, JISC, the higher education information and research body, conducts a survey of universities on their experiences with FOI, EIR and data protection subject access requests. The data is collated into handy charts which are made available online and can be downloaded in reusable form for further number crunching. It always provides quite a detailed insight into FOI handling and this year’s is no different.

Amongst the highlights of this year’s report:

  • universities received an average of 264 requests (mostly – 232 – FOI requests) in 2016 – after a drop last year, requests were up 10%;
  • 51% of requests were granted in full – 17% were partly fulfilled;
  • only 9% were fully withheld due to exemptions;
  • most requests (27%) were about “student issues”;
  • journalists were the most common type of requester – 23% (though it should be noted that 22% of requesters were not identified);
  • only 4% were not answered within 20 working days;
  • the most time-consuming parts of handling an FOI request were “locating and accessing information”, “reviewing information” and “considering exemptions”.

We have to remember that these figures are self-reported and the survey is voluntary – many universities didn’t report at all. However, what we do have is some very useful data on how FOI is working in these public bodies.

Although JISC introduce the report by commenting that the rise in FOI requests represents a “seven-fold increase” since reporting began in 2005, it should be noted that this started from a very low base. Most local authorities would kill to have FOI request rates as low as 232.

Despite the common complaint about FOI requests from IT companies trying to get hold of procurement intelligence, only 7% of requests are about procurement (though its possible these requests were counted in the 9% of requests about IT provision). Only 13% of requests are recorded as coming from “commercial organisations”.

A note on use of exemptions. There was quite a bit of commentary when the Institute for Government published a report last month suggesting that the government’s stats indicated that government departments were becoming less open as they were using more exemptions, and failing to meet deadlines more often. There’s nothing to suggest this is a problem in Higher Education in JISC’s stats, and in any case I’m not at all sure that you can make that conclusion from raw statistics. After 12 years of FOI, it may just be that government departments have already disclosed all the “low-hanging fruit”, and that what remains now are the difficult cases that are more likely to be refused or take longer to answer. What’s really needed if we want to understand changing attitudes to FOI in public bodies is research involving a qualitative analysis of the types of requests being refused – are they the ones that would have been answered in the early days of FOI? Or are the questions being asked more challenging these days? One for the academics in our higher education institutions. Statistics are helpful, but they only provide part of the picture.

If public authorities want tips on how to improve their performance under FOI, just a reminder that you can join me for one of my training courses on FOI for Act Now Training, starting with an intensive look at the FOI Exemptions on 24 April in London. Details on the Act Now Training website.

Why is higher education seeing a big rise in FOI requests?

FOIMan puts a report on FOI from Times Higher Education into context.

“The number of Freedom of Information requests received by UK universities has risen by about 40 per cent in the past three years…”

begins a piece in this week’s Times Higher Education. Readers who’ve been following this blog for a long time (ie for the last month) will remember that I used to be an FOI Officer for a higher education institution, so this article caught my eye.

Certainly my experience in a small college of the University of London supports these findings. Up to the point that I left in December we had received almost 150 requests. When I joined SOAS in 2010, the number was 69. Not long before it was less than 50. SOAS is a fairly small institution and doesn’t always get included in the “round-robin” requests sent to universities so the impact will be even greater in other institutions. THE cite York (home of the largest plastic bottomed lake in Western Europe, fact fans) as receiving 416 requests in 2013.

So why is this happening? Well, as a recently demobbed Higher Ed FOI Officer I can offer some educated guesses. Some have pointed to the number of requests being made by student journalists. Certainly a large proportion of the requests I dealt with in the last 6 months (which was primarily when the increase happened in 2013) came from that demographic. The reason for this sudden burst in activity? Well, anecdotally there is speculation that university journalism courses are setting assessments requiring students to make FOI requests.

Is this ethical? Personally, I don’t have a problem with it if the students are uncovering useful information in the public interest, but if it is merely a box-ticking exercise as part of a course, then I think course convenors ought to be asking themselves if there is a better way to educate students in the use of FOI. And perhaps asking FOI Officers in their own organisations to assist in developing courses which empasise that FOI should be used responsibly and as part of wider research employing a range of techniques.

The other reason that I think universities are seeing increased levels of requests is to do with the maturity of the legislation. When I worked in the NHS, the levels of FOI requests were first of all low compared to my experience in local government. But shortly after I joined the Trust in question (in 2009), the numbers started to rocket. And now we see the same happening in universities. (An alternative theory is that it’s my fault, but as this is happening across the country, I think we should probably discount that). What appears to be happening is that awareness that particular areas are subject to FOI increases over time. In 2005, everybody knew that central and local government were subject to the Act and wanted to try it out to dig out political stories. As time has gone on, people have become more aware that other areas are covered, and what’s more their use of the Act has become more sophisticated. Now it is common practice for journalists and others to send FOI requests to a number of institutions to compare the results, so numbers across a whole sector rise. It is also worth noting that higher education has been in the news a lot more in recent years due to tuition fees and other government reforms. (A mischievous element in me wonders whether the fuss Universities UK made in 2012 in its attempt to influence the post-legislative scrutiny may have backfired rather magnificently).

So my theory is that the rise in requests is partly due to a novel development (students being given FOI requests as homework), partly just the natural evolution of FOI awareness, and partly higher education drawing more attention to itself.

The THE article was based on an FOI request submitted to higher education institutions in December. I remember it well as it was one of the last that I answered before I left. It asked for the numbers of requests submitted over each of the last 3 years, together with the numbers answered late, how many had been refused and how many times each exemption had been used.

As well as reporting on the rise in requests, THE has been pretty scathing both in the main article and in a withering editorial about universities’ attitudes to FOI based on both their experience with the response to this particular request and on the statistics disclosed. Whilst in the past I have been the first to draw attention to skepticism in higher education about FOI, I do think the THE criticism on this occasion is unfair.

Firstly, I think THE’s methodology meant that the likelihood of receiving a complete set of useful responses was minimised. If you want to find out how a public body performed under FOI in a calendar year, complete figures will not be available until February of the following year at the earliest (this is a matter of pure mathematics – the last day that counts for this purpose is 31 December, so 20 working days after that, taking into account all UK bank holidays, will be in early February). Furthermore, although public bodies are obliged to answer requests within 20 working days, practical obstacles do sometimes make that difficult. If you make an FOI request in December to institutions that tend to close over the Christmas period, then perhaps it isn’t so surprising if those institutions struggle to meet a deadline, especially if you are also aware that they are experiencing a significant spike in workload. If the same request had been made in March, say, the journalist would have received many more responses on time and complete data from each responding institution.

THE also claimed that a lot of universities didn’t provide all the information. Certainly I didn’t. I pointed the journalist in the direction of published data (not just for my university but for several) which provided everything he wanted for 2011 and 2012, citing the exemption for information that is readily available (s.21). I also cited s.22 – future publication – for the 2013 figures as they will also be made available when complete (arguably I could also just have said that we didn’t hold the information given that it wasn’t yet complete). I did provide an interim total for the requests received. No doubt this counted as a refusal for the purposes of the article, but I effectively provided most of what was asked for and only refused to preempt a task that will be carried out very soon.

The article and the editorial make much of the fact that of those universities that provided data, there were big variations in the percentage of requests that were turned down. But there is nothing odd about this (indeed, it would be more suspicious if they were of a uniform nature). Firstly, percentages are meaningless without the numbers involved. Given that some universities had received 50 – 60 requests in 2013, and others had received many times that amount, this is an important point. Secondly, within the higher education community there is huge variation in the issues that are faced. SOAS is a humanities and social sciences college, so won’t hold information on scientific or medical research or have any of the issues associated with that research. Some universities have major collaborations with the private sector whilst others don’t. It may cost larger universities more to locate information as it is spread over a larger geographical area and in more places. Smaller universities may have less resources to establish systems to manage their information better and therefore bring the cost of retrieval beneath the appropriate limit. And so on. There are many and varied reasons why different universities might be more inclined to withhold information than others. There’s no need for a conspiracy theory to explain these variations. (The ICO, asked to comment, said more or less the same thing).

I welcome journalists scrutinizing the performance of public bodies in complying with FOI, and also highlighting the growing pressures that are faced by those tasked with managing FOI requests. But if the methodology used is flawed, and the conclusions made hyperbolic, there is a risk that far from encouraging a positive approach to FOI, skepticism about FOI within public bodies will grow.

Vexatious requests – new Tribunal decision

Just a quick post from me today to flag up an interesting Tribunal decision on vexatious requests (s.14 of the Act). The case is particularly interesting as both the Tribunal and the Commissioner are seen to support the use of the provision to defend against the FOI equivalent of ‘Denial of Service’ attacks.

The decision is also entertaining in its descriptions of the lengths that the University concerned and the Information Commissioner went to to establish that a number of individuals were acting in concert.

Why the public interest test is so important

Most exemptions are subject to a public interest test. But why is it so important to ensuring that the Freedom of Information Act works?

If you make FOI requests, you probably hate it when public authorities respond citing an exemption. If the Bill that the Labour Government first presented in 1999 had stood, all requesters would have remained frustrated.

The Bill allowed for appeal to the Information Commissioner. But the Commissioner would only have been able to advise public authorities to disclose information. Few, if any exemptions were subject to a public interest test. So the Commissioner would only have been able to advise disclosure if it was clear that the public authority had mistakenly applied an exemption. Let’s take a look at what that means.

I’ve carried out a rough and ready survey of the decisions reached by the Commissioner in 2008 relating to one of the exemptions, section 36 (prejudice to effective conduct of public affairs). Section 36 is a very broad exemption and has been criticised in the past because of this. In 2008, 30 decision notices were issued relating to the exemption. In 21 of these cases, the Commissioner found that the information did fall within the exemption. Not really terribly surprising given the breadth of the exemption.

But of those 21 cases, the Commissioner ordered disclosure in 13 cases because he found that the public interest test had been applied incorrectly. And that’s why the public interest test is so important. If all the Commissioner could consider was whether an exemption applied, his power to challenge public authorities’ decisions would be very limited. The public interest test has empowered the Commissioner to take a broader view, and as a result has really given the FOI Act teeth.

So what is the public interest? It’s not defined in the Act, but it is a well known concept in law. In a high profile Australian court case, it was defined as:

“…a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well-being of its members…events of interest to the public may or may not be ones which are for the benefit of the public; it follows that such form of interest per se is not a facet of the public interest.” (DPP v Smith [1991] 1 VR 63 at 75 for those lawyers amongst you who like to check my facts)

Or, as the Information Commissioner’s guidance more succinctly put it, the public interest is that which serves the interests of the public, not necessarily that which the public is interested in. So whenever we apply a qualified exemption (which is most of them), we have to consider whether the public will be better served by disclosure or by withholding the information.

The Environmental Information Regulations explicitly say that public authorities should presume that information should be disclosed when considering the use of exemptions. But the FOI Act, believe it or not, doesn’t actually say that. In practice though, the courts have found that there is an assumption that information should be disclosed running through the Act. It is, after all, called the Freedom of Information Act.

This means that one of the arguments for disclosure is always that there is a public interest in accountability and transparency. There may well be arguments in favour of disclosure in addition that are specific to the information requested. So, for example, it might be argued (and often is) that as an issue is currently the subject of controversy, there is a public interest in disclosing such information so that public debate can be well informed. The arguments for disclosure can be very general, yet they should be given considerable weight.

The next step is to consider the arguments against disclosure (and in favour of applying the exemption). Of course, in truth, unless we (or at least somebody in the public body) thought there were strong reasons for withholding the information, we wouldn’t even have started down this route. Try making an FOI request to a public body for its written consideration of the public interest in cases where the information was eventually disclosed – there won’t be any record. Part of the FOI Officer’s role is to be aware of case law and have a sense of whether or not withholding information is viable. If we don’t believe that a public interest can be successfully argued, expect us to resist the reliance on an exemption in the first place. Of course there are times when we have to find arguments even if we don’t think there is a strong case, but it is usually possible to find reasons – there is generally some grain of justifiable concern if someone is insisting on withholding the information, even if we’re not necessarily convinced that it would survive an encounter with a member of the Commissioner’s staff.

So what does survive an encounter with the Information Commissioner or the Information Tribunal? Analysis of their decisions demonstrates that it is about how convincing the argument is. It will be more convincing where an authority is able to produce evidence of the damage to the public interest. A great example I saw recently was when a University argued successfully in favour of section 36 to withhold a list of email addresses for all their staff. Quite often in the past, the Commissioner has ruled in favour of disclosure in these kind of cases, but what I think was different about this case was that they were able to produce evidence, in the form of experience of previous accidental disclosures, that disclosure could cause significant disruption to the university, and that this was not in the public interest.

The public interest test is a complex process. You can’t say for sure, whether you’re a public authority or a requester, which way appealed decisions will go. It ensures that the application of exemptions is fluid, that FOI doesn’t become trapped in the year 2000 when the Act was passed. It’s a brilliant mechanism and one that shouldn’t be underestimated in any assessment of how important the Act is in practice.

 

Open Data – Just Do It?

Central Government has established a datastore for Open Data. But if you’re outside of Central Government, how do you react to calls for more online data? And what is the role of FOI Officers in getting them established? Southampton University’s new datastore may give us some clues.

This week Southampton University launched data.southampton.ac.uk, its open data repository. It is perhaps unsurprising that Southampton should take the lead in the Higher Education sector in this way. Two of its academic staff, Professors Nigel Shadbolt and Sir Tim Berners-Lee (yes, that one), sit on the Government’s Transparency Board and are heavily involved in the data.gov.uk site.

However, this is the lowest tier of the public sector at which I’ve seen this done. The Greater London Authority (GLA) in London has a Datastore, but the GLA has always been a strange beast – a weird hybrid between local government and central government with more flexibility than most public sector bodies. There may well be others doing great things, but I’m not aware of them. The fact that a higher education institution could do this set me thinking. Was this something I should be doing?

I’ve been hearing great things about the power of open data, but it all seems rather distant from me. The language used can be off-putting at times. All this XML, ODF, even the term ‘Repository’ suggests to me something difficult, technical and, most of all, expensive.

A journalist asked me last week if FOI Officers were involved in Open Data initiatives in the public sector. Being honest (like Superman, FOI Man never lies), I explained that from what I had gathered, where open data initiatives were in place (basically Government and the GLA) the two things seemed to be dealt with separately. FOI Officers were busy dealing with FOI requests and required specific knowledge of the application of legislation. Open Data projects tend to be run by techie-types, statisticians and economists. And it rankled with me that I was being left out of this important stage of the openness agenda.

Why shouldn’t we be involved in these projects? Through answering FOI requests we’ve built up a vast knowledge of the information held in our organisations and how feasible it is to extract and make public. Those of us who are records managers as well have an even deeper knowledge of our organisations’ information resources. Some of us even maintain Information Asset Registers so have already identified all the key datasets in our organisations. No, scratch that. Not only should we be involved, we should be initiating and leading on these projects.

A ‘repository’ is no more than the place where the files are put; it doesn’t have to be something new – unless and until the volume of material is massive, it can just be saved to our Content Management System (CMS) and published to the website that way. The format we publish in is probably less important than just getting it out there, but I have a hunch that the Excel spreadsheets we often send out when asked for data under FOI would be sufficient for most people who wanted to re-use our data. Once we start publishing this data routinely, we’ll presumably get feedback which will tell us which formats we should make data available in in future.

The biggest obstacle is perhaps the legal side of things. Here too though, things are simpler than they were. The National Archives’ new Open Government Licence provides a straightforward way to licence re-use of our data. Assuming the Protection of Freedoms Bill is passed, it will become mandatory for public bodies to adopt such a licence, so why not get ahead of the game?

But surely FOI Officers are there to deal with the requests that come in under the general right of access? Well, we’re also supposed to be maintaining Publication Schemes, pointing to the information our organisations make available pro-actively. And we’ve come under increasing pressure to create and keep up-to-date disclosure logs of the responses we’ve made to FOI requests. The Publication Scheme and Disclosure Log could well be used to structure our datastores.

I may be being terribly naive here, but it seems to me that establishing institutional online datastores outside central government is simpler than we may think. And that FOI Officers ought to be leading the way on them. We already have the tools and the justification for doing these things. Much of it won’t even need additional approval (which if you read We Love Local Government’s amusing, if depressingly familiar, post on Friday, you may appreciate).

I’d love to hear from anyone who has been involved in establishing an Open Data store for their organisation, or has expertise in this area. Am I over-simplifying this? Or perhaps I’m being slow on the uptake (not the most unlikely thing in the world) and everybody else is already well aware how to go about this? Whichever, do please comment on this post – I’m particularly interested to hear your views on Open Data and what we should be doing to make it a reality.