FOI: university challenged

Running alongside our current project looking at FOI and universities, is the Justice Committee’s own review into the impact of FOI on the UK. This has presented us with some good opportunities – firstly to showcase our research into FOI over the last 6 years, and secondly, giving us the chance to see what public bodies think of FOI via their submissions to the committee.

The Higher Education sector is well-represented in the 112 submissions the committee received. Well, over represented if anything. Almost 200,000 FOI requests a year are received by local government (according to our estimates), and yet only three councils (Leeds, Birmingham and Kent) made submissions. Universities, or their representative bodies, make up a quarter of all submissions to the committee, but receive vastly fewer requests, looking at the latest data.

While most public authorities responding to the call for evidence – including universities – focussed on common themes (vexatious requests; fees and charging; commercial/media use), some universities were unique in calling for them to be taken out of FOI altogether (Durham, Essex, Reading), or at least have specific exemptions applied to some of its activities (colloquially known as the ‘BBC-style’). The latter has been attempted through an amendment to the current Protection of Freedoms Bill. Universities UK pushed for an exemption within section 22 of the Act, to protect research findings from ‘premature’ publication through FOI. (The amendment was based on a similar clause in the Scottish FOI Act 2002). The amendment failed to attract government support.

Our project, through speaking to academics, university managers and officials, FOI officers, bloggers, requesters, media and open-data enthusiasts, has uncovered some interesting ideas about what it means to conduct research in the public domain and the pressure on universities to remain ‘competitive’. We’re also uncovering what requesters want from universities and academics, and how this might inform the place of universities within the ‘public sector’.

Looking in more detail at the submissions made by the Higher Education sector to the committee, their changing funding arrangements appear crucial to the way they view FOI.

FOI applies to all information ‘held’ by the University, irrespective of the source of funding for its activities, whether those be research programmes, teaching, or innovation. Universities make the argument that this can cause tension in their relationship with private funders when negotiating contracts and during the course of the research itself. They fear that this could lead to a “…reduction in the amount of private funding received at a time when the amount of public money being allocated to higher education has been reduced dramatically.”(University of Bristol submission)

Further, some Universities outlined the falling percentage of their funding or turnover that is derived from public sources and linked this to the appropriateness of being covered by FOI. The 1994 Group noted that public funds for teaching this year would only contribute 22 per cent to overall teaching income: “Given this, it may be more appropriate in future for some areas of higher education activity such as teaching to be exempted from FOIA legislation.”

Private providers in the HE market also constitute a problem – in receipt of public funds through student loans, yet not covered by FOI.

Competition can only be fair and effective if all institutions are operating on a level playing field, subject to the same regulations. The question of how the FOIA should be applied to a more diverse set of higher education providers needs resolving as a matter of urgency.” (UUK submission)

Where the Justice Committee will go on FOI is anyone’s guess. But the HE sector was successful in gaining an opportunity to give oral evidence to the Committee, taking one of the coveted four slots.

The sector’s hopes to change the way they’re covered by FOI (in some way) is running concurrently to the many open-data initiatives of academic disciplines and research councils. The other main area of concern for universities regarding FOI – access to research data – is something we’re continuing to investigate. In the meantime, you can read summaries of some other notable submissions to the Justice Committee, and watch Ben Worthy, Robert Hazell and Jim Amos give their evidence to the Committee on our website.

Constitution Unit gives evidence to Justice Committee scrutinising FOIA

Robert Hazell and Ben Worthy both appeared before the House of Commons Justice Committee today. They gave expert evidence as part of the post-legislative scrutiny of the Freedom of Information Act (2000).

The Constitution Unit has led a number of groundbreaking research projects on the impact of the FOI Act on central and local government, and conducted surveys into the requester and provider experience.

Further Information

 

NHS Reform Under the X-Ray

“The person I trust most for my health, number one, is my GP. And I’ve always seen him or her as a kind of a gateway to any other services. And it’s his judgment, ultimately, or her judgment, that I would back.”  That’s what Eric Pickles told The Telegraph last Saturday. There’s something bucolic about the government’s attempt to put commissioning power into the hands of local GPs, and take it away from “faceless bureaucrats”  in the Primary Care Trusts; it comes from the England of Cameron’s mother, the Berkshire Magistrate, from John Major’s England of “cricket grounds, warm beer, green suburbs, dog lovers, and old maids cycling to holy communion”.  But, the government are also, as Hague once put it, “Thatcher’s children”. Andrew Lansley wants to empower patients, and by empower them, he means increase their choices, and by increase their choices, he means create a market, and by create a market, he means promote efficiency and cut NHS costs, and by cut NHS costs he means offset the effect of the £20 billion of savings required by 2015. 

The leaked account of the Strategic Risk Register, which lists the potential pitfalls of the reforms, suggests it challenges both horns of the government’s approach. GPs, it is alleged to say, may lack the experience and skills to manage funds efficiently. Equally, the introduction of a market may lead to private companies failing to do more with less, and simply siphoning away public funds in profit. Consequently, the NHS could eventually prove “unaffordable”.If this is an accurate report of the contents of the Strategic Risk Register – if it seriously moots the possibility of the reforms rendering the National Health Service prohibitively expensive – then it is not surprising that Andrew Lansley does not want to publish the report until after the Health and Social Care Bill is enacted.

The government is appealing an Information Commission order that they should release the full document. The Department of Health has pointed out that Risk Registers express the dangers of policies in “worst case” scenario terms and so can be open to misinterpretation if read out of context. It suggests that Risk Registers in their current form could not be produced if they were subject to FOI requests, for fear of giving the public the wrong impression.This is a version of the chilling effect argument, which Blair put like this:

“Governments, like any other organisations, need to be able to debate, discuss and decide issues with a reasonable level of confidentiality. This is not mildly important. It is of essence. Without the confidentiality, people are inhibited and the consideration of options is limited in a way that isn’t conducive to good decision-making. In every system that goes down this path [FOI] what happens is that people watch what they put in writing and talk without committing to paper…’ 

The Information Commissioner recognises the danger of FOI causing a chilling effect.  However, in this case it emphasised the fact that, whatever information is released vis-a-vis health reform, officials will still be required to be fully frank when they produce Risk Registers. The Commissioner felt that publishing information about NHS reform might make officials less forthright on that particular subject during the current process, but that there would not be a chilling effect on the record of risk across the policy spectrum.   

The appeal will be heard by the Information Tribunal on 5 and 6 March, which may or may not be before the third reading of the Health Bill in the House of Lords – the last chance to substantially amend it. However, Labour propose to discuss the publication of the Risk Register  in an opposition day debate on 22 February. It is possible that this move will prove more effective than the Freedom of Information Act in getting the Strategic Risk Register into the public domain.

FOI and Accountability?

Does freedom of Information increase accountability? Officials think that it does not, according to a survey by the Ministry of Justice recently mentioned in the Guardian.  The key word here is think. They think it doesn’t because they don’t directly see its effects.

Officials don’t notice FOI because often it works with other accountability mechanisms, especially the  media or NGOs (see Voices for Libraries on going campaign).  FOI rarely hunts alone and its use is lost amid lots of other questions, communications and research. A long running parliamentary investigation into extraordinary rendition , for example, used FOI in the UK and the US alongside Parliamentary Questions to show that a little more was known about the mysterious flights than was admitted at the time.

Officials also don’t notice it because it is not always high profile or immediate. For every MPs’ expenses  scandal or list of visitors to Chequers there is the patient, often slow, digging up and fitting together of pieces of a jigsaw. Chris Ames has spent many years exposing bit-by-bit the inner workings of government as it prepared for the War in Iraq. His work has raised many questions about the defences made by the politicians involved.  At local level there are many groups using it to pursue all sorts of important issues that may escape officials’ radars, allotments being a good example.

FOI does make government more accountability but not everyone sees it.  Sometimes it is not the kind of accountability politicians or officials want. Often it is for unexpected things. But that doesn’t mean it isn’t happening.

Why won’t expenses go away?

The point of transparency, according to the theorists, is two-fold:  You’ll be judged for what’s exposed and – only when effective sanctions or accountability mechanisms exist for bad behaviour – you won’t want to continue to act badly. Sounds easy, right?

The problem, in the real world at least, is the definitions in the concept above. Who constitutes the ‘judge’ of what’s exposed? Who decides what sanctions are appropriate? What’s riskier for an actor – attempting to hide behaviour or taking the punishment a ’judge’ hands out?

Looking at some news stories over the last few weeks, the FOI ‘expenses’ fad is more than a fad after all  – FOI requests for expenses continue to be made, and in tandem with proactive publication, hundreds of column inches  continue to be filled by stories about expenses.

And the reason this is still happening is that it continues to be unclear (and therefore newsworthy) about what any expenses system is ‘supposed’ to look like. The goal posts keep shifting – what was acceptable before the banking (or indeed the MPs’ expenses crises) isn’t necessarily ok now, though of course, it could one day be again. Where the real accountability lies is often not with the headlines in the media, but by the structures already in place in the system. Transparency’s two benefits are by no means a given.

In the context of increasing student fees and a decrease in the teaching budget, the expenses of university vice-chancellors this week, investigated by the Independent on Sunday, makes the perfect story. The expenses “cover worldwide travel and lavish entertaining” according to the paper, while the universities argue that “the expenses were largely run up on official business” and they insisted they had “robust mechanisms to weed out frivolous claims.”

Comments on the expenses by union and student leaders did not call for the resignation of any vice-chancellors. Usman Ali, vice president of the National Union of Students, argued “Universities must listen to students’ unions and make their expenses and pay structures transparent to stop abuses.” But without stronger sanctions, and keeping in mind the theory above, what can listening and more transparency do to actually instigate the kind of behaviour change students and unions want? In reality, the buck stops for many vice chancellors at their respective university councils.

Universities argue their expenses regimes are fit for purpose and by being exposed they are acting responsibly. A Housing Association has taken it upon itself to begin publishing details of their expenses. Being threatened with FOI-inclusion by Minister Grant Shapps, they have embraced the push towards transparency and opened themselves up to the scrutiny of others.

Is that a safe move, PR-wise? Even when efficiencies are made overall, exposure of expenses doesn’t always inspire trust: the total claims made by MPs’ are down by a fifth this year, but that hasn’t stopped the Daily Mail focussing on first class travel. Context is everything: “[MPs’ expenses claims] highlight the extent to which the system cossets MPs from the crippling rises in the cost of living that are squeezing the incomes of ordinary families.” Ouch.

The issue remains a touchstone across the public sector: this week examples come from the police, the British Council, the BBC, former MPs like Tony Blair (and less recently, Thatcher,) and even popping up in the Leveson Inquiry.

The most interesting piece of expenses news this week however, might be a small survey by YouGov, carried out for Concur, a firm which specialises in expenses software. 18 per cent of respondents said they would exaggerate expenses claims if they believed they were otherwise underpaid. Who’s fit to judge now?

Is All Openness Local?

Following our report on FOI and local government in England, we have had some interesting reflections on how FOI works elsewhere.  One of the really interesting points concerns how users are often focused on ‘local’ access to issues that are of importance to them. High profile expenses stories aside, FOI is actually about making a difference at the level of your own street or ‘micro-politics’ as someone wiser than me called it. Could this also be the way for new Open Data innovations such as fix my street?

Here’s the FOI (or FOIL) view from New York state:

‘Our FOI law (known by many as “FOIL”) has been in effect since 1974, and this office was created as part of the law.  There are approximately 100 state agencies, but more important to most residents are the thousands of local government agencies, i.e., counties, cities, towns, villages, school districts and the like.  Most residents have little connection with federal agencies in their daily lives and rarely have occasion to seek records under the federal FOIA.  A few have relationships with and a need to gain access to records of state agencies.  But everyone has a need at some point to seek information from local government, perhaps in relation to an environmental issue, building code and land use issues, the assessment of homes and other real property, the means by which taxpayers’ dollars are used or allocated by school districts, the qualifications of teachers and other public employees, the effectiveness of law enforcement functions – – the possibilities are endless.

We have also found, in general, that the smaller the unit of government, the more likely it is to be open.  In short, there is direct accountability. Most residents here, in the capital city of Albany, would recognize the Mayor walking down the street.  Few would recognize their congressman.

In short, despite the focus on Washington and the federal FOI Act, I believe that a local access to information law,  such as the 50 separate state FOI laws in the US, or a law of general application that includes local government within its coverage, is of primary significance and utility to the average person.  Further, for reasons suggested earlier, local government officials are more likely to comply with law and to be accountable that those higher up in the governmental chain of command.’

See http://www.dos.ny.gov/coog/ for more information, reports and analysis

New edition of Government and Information: the law relating to access, disclosure and their regulation

A long-time friend of the Unit, Prof Patrick Birkinshaw, and Dr Mike Varney have just published the fourth edition of their book, Government and Information: the law relating to access, disclosure and their regulation. It is designed to be a guide for legal practitioners who work with information laws, and also covers reforms involving the web, protection of privacy, the role of grievance procedures and judicial review in assisting openness,  and the role of the courts in obtaining information.