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FOI and Universities

October 2011 - July 2012

graduants at UCL

The Freedom of Information Act (and Environmental Information Regulations) cover UK universities. They present both an opportunity and a threat to academics. The threat was shown by ‘climate-gate’ at the University of East Anglia’s Climatic Research Unit (CRU), which revealed confusion amongst the academic community about the requirements of the FOI Act and the EIRs, and prompted wider discussion on what research information should be shared with the public. Yet it is also an
opportunity for academics, as requests can be used as a research tool. But it is not clear how much FOI is being used, or how effectively, by academic researchers.

This project proposes to study both this ‘opportunity’ and ‘threat’: the impact of FOI on universities, and the use which academic researchers have made of FOI. 

This project is funded by the Leverhulme Trust, ref: RPG-247.

1. Introduction

1.1 The example of ‘climate-gate’ at the University of East Anglia’s Climatic Research Unit (CRU) highlights important – and unresolved - issues around freedom of information and universities. It revealed confusion amongst the academic community about what the Freedom of Information Act requires them to do, and prompted discussion on what research information should be shared with the public. These issues, according to the House of Commons Science and Technology Committee (2011), need urgent attention:

The broader confusion about how FoI legislation should be applied to scientific research must be resolved. The Information Commissioner’s Office has made some progress, but this should now be pursued as a matter of urgency.

1.2 Each university in the UK receives, on average, 6.2 FOI requests per month. This monthly average doubled between 2005 and 2009, as did the number of requests about university research. Journalists are the most frequent requesters (Joint Information Systems Committee JISC et al 2009). Beyond these basic facts we know very little about FOI and universities. This project will fill this gap by studying the impact of FOI on universities, and the use which academic researchers have made of FOI.

1.3 Much was made of FOI’s research potential by the government (Falconer 2006), but the utilisation of FOI for academic research is largely unexplored in a British context. As the UK FOI system is requester blind we only have limited data about the proportion of requests with an academic purpose, and we know even less about how these requests fit into the working patterns of researchers and academics.

2. Impact of FOI on universities

2.1 Our first line of inquiry is to study the impact of FOI on all the activities of universities other than research. We want to find out not so much the main categories of requesters, and the kinds of information they seek, but how well universities cope with the extra administrative and other burdens of FOI.

2.2 Universities and their employment practices are the focus of one particular FOI portal: www.academicfoi.com, aimed at scrutinising university managers. The site offers to submit requests on behalf of users anonymously, and then compiles briefings comparing institutions. Examples of requests made through the site include the rights of academics to speak to the media without specific press office permission and the employment tribunal claims of university employees.

2.3 The administrative burdens of FOI will be harder to bear following cuts to university budgets from the Browne report and the coalition government’s spending review in late 2010. A well-functioning FOI system requires conscientious record-keeping and back-room staff. Most universities currently have less than 1 FTE staff for ‘FOI issues’ and many universities struggle to answer requests within the legally required time limit (JISC et al 2009). Many kinds of public organisations struggle to manage data when it can be held by thousands of individuals within one organisation. Universities are an example of this:

Devolved organisations such as universities and colleges and without strong corporate records management strategies are always likely to struggle in this regard. Information is often scattered across the institution with little central control… In these circumstances it is inevitable that delays will be caused (JISC et al 2006).

2.4 In many cases no extra money was provided to employ FOI staff, so responsibility for FOI was added to the work of departmental administrators (Shepherd and Ennion 2007). An initial analysis of the cases taken to the Information Commissioner against universities finds common breaches of procedural requirements in the law (for instance, Section 10), and misapplication of exemptions relating to commercial interest (43) and confidential advice (41). Universities have been required to share information about their teaching, buildings, debt, salaries and even course materials through FOI.

2.5 This leads to our second set of research questions

  • What changes have universities made to their policies or practice as a result of FOI?
  • What information do they now publish routinely and proactively?
  • What are the most common failings in universities’ operation of FOI?
  • What training and resource material might help reduce these failings?
  • How can those resources best be disseminated?

2.6 Our third line of inquiry is specific to research. There is currently a push towards greater transparency across the academic sector, with research councils encouraging data-sharing in the belief that information created with public money should be shared to benefit wider society (Research Information Network 2008). There are many studies and declarations on the need for greater openness of research data, and its costs (Fry et al 2009; Jones 2009; Panton Principles 2009; Arzberger et al 2004). A manifesto promise to make all state-funded research publicly available was made by the Liberal Democrats in 2010. But there is little understanding of how FOI requests fit within this wider framework of public dissemination.

2.7 Some researchers believe their intellectual property is being undermined by recent decisions of the Information Commissioner over FOI requests. Professor Mike Baillie from Queen’s University Belfast called the ICO’s decision to force the publication of his raw data ‘a staggering injustice’:

We are the ones who trudged miles over bogs and fields carrying chain saws. We prepared the samples and - using quite a lot of expertise and judgment – we measured the ring patterns. Each ring pattern therefore has strong claims to be our copyright. Now, for the price of a stamp, Keenan [the requester] feels he is entitled to be given all this data (Pearce 2010).

2.8 Others simply feel threatened and undermined by requests. In response to one request for data from East Anglia’s Climatic Research Unit, Unit head Professor Phil Jones wrote: ‘We have 25 or so years invested in the work. Why should I make the data available to you when your aim is to try and find something wrong with it?’ (Webster 2010). ‘The big lesson’, said Simon Hodson of the JISC following the CRU case, ‘is that a lot of the rules governing what people thought were exemptions didn't stand up to analysis by the Information Commissioner's office,’ (Fearn 2010).

2.9 The ICO has acknowledged the unique position UK researchers find themselves in, compared with their US, Irish or Scottish counterparts. American researchers and academics’ data is protected from requests by virtue of a directive issued in 1999. ‘Preliminary analyses, drafts of scientific papers, plans for future research, peer reviews [and] communications with colleagues’, are all exempted from release. The Independent Climate Change E-mails Review – headed by Sir Muir Russell to investigate the CRU after ‘climate-gate’ - and East Anglia’s own vice-chancellor have called for a similar US-style exemption to apply here (Russell et al 2010; Acton 2010). Similarly, the Freedom of Information (Scotland) Act ‘provides an exemption – subject to a public interest test – for information generated in the course of a research programme where the research will be published, and where disclosure before publication would harm the programme or the interests of the individuals or organisations involved in it,’ (Jubb 2011). This was inserted following a campaign by Scottish Universities (Scottish Information Commissioner 2005). Ireland provides an exemption where disclosure before the completion of research would cause serious disadvantage. An exemption of this kind for the UK would require a change to the primary FOI legislation (ICO (2010).

2.10 Many UK academics have little understanding of their responsibilities under the Act (Nelson 2010; RIN and NESTA 2010). The House of Commons Science and Technology Select Committee (2010) noted in its inquiry into the CRU that East Anglia University needed ‘to re-assess how it can support academics whose expertise in FOI requests is limited’. Prof Phil Jones of CRU was frustrated with meetings with university officials to discuss requests as ‘it takes away your research time,’ (Adam 2010). The UEA case has also identified a lack of understanding of FOI in the HE sector as a whole. Michael Jubb (2011), Director of the Research Information Network (RIN) notes, ‘there is no explicit reference to its [FOI] requirements in any of the various codes of research practice that have been issued in recent years by bodies such as the UK Research Integrity Office.’ It is only with controversies like ‘climate-gate’ that the HE sector has begun to take note. JISC, which supports the use of IT in higher education, published guidance on FOI and research in December 2010. The guidance states ‘unless there is an overriding reason for not providing information to the public, you must provide it,’ and notes that, ‘paradoxically, having a policy to publish your data (say at the end of each research project) may help with exemptions to providing it prematurely,’ (Charlesworth et al 2010).

2.11 Sir Muir Russell’s inquiry into the CRU recommended the ICO and the Higher Education (HE) sector discuss the implications of FOI for research in universities (Russell et al 2010). In September 2010 a roundtable meeting was organised between the ICO and the HE sector, including research councils, JISC and Guild HE. The ICO (2010) acknowledged the unique ‘global competitive context’ for universities, that ‘further work needed to be done around understanding intellectual property rights [IPR] as it resides in research data’ and that ‘further discussions may also be useful to elaborate what is covered by s. 22 of FOIA (“intent to publish”) within the academic context.’ The meeting concluded with the establishment of a HE sector working group to ‘work with the ICO in developing sector-led and sector-specific guidelines around the issues of research data, teaching materials and IPR.’

2.12 The ICO, RIN and JISC are holding three workshops across the country this spring, aimed at tapping into the views of researchers about how FOI impacts on research in higher education institutions. The Constitution Unit is in contact with RIN and is presenting at the London workshop. Prof Robert Hazell is chairing. The workshops are ‘a first step in a process to provide researchers and their institutions with appropriate guidance and support’ (RIN 2011).

2.13 Previous research suggests there are real obstacles to overcome. A survey of researchers in the life sciences in 2009 found that ‘they see data as a critical part of their ‘intellectual capital’, generated through a considerable investment of time, effort and skill. In a competitive environment, their willingness to share is therefore subject to reservations,’ (RIN et al 2009). There are many good reasons for these reservations. There are few career rewards for publishing datasets (as opposed to publication in high-impact journals); answering requests can be time-consuming, especially if detailed methodology must accompany such data; researchers lack expertise in data management; and they fear exploitation and misuse of data (RIN 2008). There are also concerns over commercial confidentiality or exploitation. ‘The relationships between such restrictions and the requirements of the Freedom of Information Act are not well-understood in the research community’ (RIN et al 2010).

2.14 This leads to our third group of research questions

  • What are the implications for the conduct of scientific research, if researchers’ data can be requested at any time?
  • Is it feasible for all scientists to publish all their data?
  • What are the implications for privately funded research?
  • What exemptions to release might reasonably be claimed?

3. Academics’ use of FOI as a research tool

3.1 In 2006 Lord Falconer set out what FOI could do for academic research: ‘the legislation that we have introduced in this country will have considerable benefits for those engaged in academic research across a wide range of disciplines,’ (Falconer 2006). Historian Bernard Wasserstein (2001) argued that the practice of history in the US was revolutionised by its FOI Act, while Britain’s historians were disadvantaged by its absence. However, Lee (2005) disagrees, arguing that, ‘if experience elsewhere in the world is anything to go by, use [in Britain] might in practice be rather modest.’ The British Academy (2006) hosted a conference where participants suggested that while requests required time and some specialist knowledge, the opportunities for historians in particular were significant.

3.2 However, the benefits which FOI has delivered to academic research since then are largely unknown. The UK system is requester blind; the only information available is broad estimates of the total proportion of FOI requests which come from academics or researchers. After the first few years of Canada’s Access to Information Act, the proportion of ‘academic’ requesters was estimated to be 6 per cent (Hazell 1987). In the UK the Constitution Unit’s own annual survey of local authorities suggested that the proportion of requests from researchers was 2 per cent (Amos et al 2010), but we do not know how many requests researchers made to central government.

3.3 There have been some notable cases of FOI use by academics in the UK. Booth (2009) searched academic journal databases to find mentions of using FOI in research methodology. He concluded ‘a steady growth in researchers’ use of the Freedom of Information Act (2000) is identifiable from the peer-reviewed journal literature.’ Examples include: researchers at the University of Manchester used FOI to find that Muslim terrorists are no more likely to come from areas with large Muslim populations than anywhere else; the University of Hull used the US FOI Act to analyse data from clinical trials of new-generation anti-depressants, finding placebos and drugs were having similar effects; the New Scientist scrutinised the preparedness of MOD for nuclear accidents. But making FOI requests can be a time-consuming and frustrating process. Booth (2009) found problems with a lack of awareness of the potential usefulness of FOI, and some academics struggled with the appeals process. We currently have no understanding if, to use Wasserstein’s description, research has been revolutionised by FOI, or if Lee’s more modest prediction has been borne out.

3.4 There is also the complication of what an FOI regime does to the creation of documents; a common perception throughout countries with FOI is that ‘it drives people away from putting frank opinions and advice down on paper,’ (Lord Butler in the House of Lords, 1999). This is colloquially known as the ‘chilling effect’. Research into the impact of FOI upon British central government found no concrete evidence of a chilling effect (Hazell et al 2010), and a study of local government record keeping also concluded that it was very difficult to find clear evidence (Shepherd et al 2010). Similar conclusions have been made in Ireland and New Zealand (Irish Information Commissioner 2001; White 2007). But the worry persists that records are not as thorough as they used to be because of FOI, and this will seriously damage the work of historians in particular. Oliver Morley, acting chief executive of the National Archives has said, ‘Some of the more indiscreet communications that have been found in official publications might not be there for the future.’ (Wheeler 2010). Harriet Jones, ruminating on Sweden’s ‘empty archives’ syndrome, holds grave concerns about the impact FOI will have on the long‐term integrity of the historical record in Britain (Jones 2008). So too does Historian Antony Beevor (Lay 2010).

3.5 This leads to the following research questions about academics’ use of FOI.

  • How has the use of FOI contributed to academic research?
  • Why and how do academics use FOI? Is FOI more useful for particular disciplines?
  • Would it be helpful to have guidance for academics on how to make best use of FOI?
  • Do researchers encounter problems associated with the ‘chilling effect’?
Surveys
  • We will create an online survey to disseminate amongst university FOI officers to ask them about the impact of FOI on their institutions.
  • We will survey academics who use FOI to discover how and why they use FOI requests, any struggles or successes, and advice they would offer to others.
Analysis of FOI requests and appeal cases
  • We will examine disclosure logs of FOI requests published by six universities (using a coding system we have developed for this purpose), and requests made to universities on the FOI site WhatDoTheyKnow.
  • We will analyse the case law in relation to universities from the Information Commissioner and the Information Tribunal.
  • We will ask government departments for details of requests made to them by academics and researchers (which we have done successfully for other categories of requester), and examine the current guidance provided for academic FOI users.
Interviews
  • We will interview those academics known to us as frequent users of FOI, and use research networks and associations to contact other researchers to collect their FOI experiences.
  • We will interview FOI officers to hear first-hand their experience in administering the Act, and representatives from the Higher Education sector.
  • We will interview journalists who have either an interest in research, and those who have made requests to universities. We will also speak to those campaigners and NGOs who have used FOI against universities.
Case studies
  • We will compile case studies to illustrate the different nature of requests and assess their impact, from media stories, interviews with journalists, academics and requesters, and appeal cases. These will help inform our good practice guide.
  • As we develop drafts, we will circulate them to professional bodies and disciplinary associations, to get their feedback and engage their interest.

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