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.

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?

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.

Departing O’Donnell: FOI damages discussions

Cabinet Secretary Sir Gus O’Donnell, set to step down after six years as the country’s top civil servant, told the Public Administration Select Committee the Freedom of Information Act has had a “very negative impact on the freedom of policy discussions.”  The Guardian reports that Sir Gus, echoing former PM Tony Blair,  said that “If asked to give advice, I’d say I can’t guarantee they [ministers] can say without fear or favour if they disagree with something, and that information will remain private. Because there could be an FoI request.”

Measuring the ‘chilling effect’ is difficult as anecdote is easier to come by than hard evidence, as a previous post of ours discusses.

Academics FOI’led?

One thing that becomes more clear about FOI (and Open Data) as it settles into British society is to expect the unexpected (which, helpfully, gives us lots to study, and in turn, we hope our research helps). In all honesty, would anyone have predicted a ‘zombie’ parade on the streets of Leicester after an FOI request to the local council?

One new development with FOI is a small but growing collection of case law about FOI and universities, which is challenging some basic notions about what academic publishing is and how intellectual property works. Peer review is how academic work is challenged and critiqued, right? Except now, access to data is now a right for anyone. A ‘staggering injustice’ is one academic’s take on a decision by the Information Commissioner regarding his intellectual property. What’s also becoming clearer is some of the premises about FOI – what’s it for, who’s meant to benefit – are being challenged by what’s happening with universities:

  • FOI is about the helping little the guy: except when Tobacco giant Philip Morris uses FOI to get hold of information regarding teenage smokers.

What seems to be happening is a clash between FOI’s broad goals and the unique (and rapidly changing) realties of the university environment. They are multi-million pound institutions with networks that stretch across the globe. Academics share data everyday; peer review challenges ideas. They are in direct competition with each other for students and for research funding.

A lot has been written in recent months this topic, from various angles: epidemiologists in The Lancet have espoused the virtues of sharing data for better public health; FOI advocate Heather Brooke has defended Philip Morris’ requests to Stirling University; the Commons’ Science and Technology committee urged guidance be drawn up to help academics cope with FOI following the climate-gate affair (the ICO has just done so); David Colquhoun fought against the teaching of a BSc in homeopathy at University of Central Lancashire using FOI; George Monbiot has outlined the manifold problems with dissemination via expensive academic journals; Princeton, Harvard and MIT have adopted an open-access policies; Jon Baldwin has questioned why Universities in the UK are covered by FOI at all.

We’re beginning a new project looking at the relationship between universities (and other High Education institutions), academics and researchers, and FOI/EIR. One side of the project is going to look at how academics make use of requests themselves (we’ll blog about this soon), but the other is FOI’s impact on universities. Going beyond the headlines of ‘climate-gate’, we’re hoping to find out what’s really going on. Are these cases one-offs? Or the tip of an iceberg?

We’re asking if FOI  has changed…

  • the policies or practices of universities? Or the relationships with their students, funders and competitors?
  • the way they bid for contracts, or the kind of information they proactively release?
  • what researchers chose to study? Or how they are able to publish and personally gain from their research?
  • the mindset of researchers when it comes to sharing data and results?

We hope to be able to provide some answers to the above questions. We’re going to be interviewing academics and requesters, looking at the case law and analysing the requests themselves. We’ll be adding more information to our project page over the course of the next year. Keep an eye on us (we are, after all, covered by FOI!)

Shining a light or keeping us in the dark?

Letting the light shine out

When it comes to FOI and Parliament, a bit of both really, though more of the latter than you’d expect: that’s the conclusion from our report on the impact of FOI on Parliament, published today. (The two year study also looked at the use parliamentarians have made of the Act, covered in a previous blog post here).

Our main findings are:

  • The focus of FOI requests has always been on the House of Commons, and on MPs (much less so on the Lords)
  • Parliament has released much corporate material about itself through FOI, in contrast to assertions that it is a secretive organisation

Freedom of Information legislation was not originally intended to cover Parliament, but the Act’s greatest impact has been on its oldest institution.

No one expected some of the most important case law around FOI and personal data would come from Parliament, but it did. MPs thought Parliament was open, and it was (and is continuing to get more open). But they didn’t see the collective blind-spot that was the Additional Costs Allowance (expenses) system. The MPs expenses scandal is a classic case of FOI searching out secrecy while the rest of an organisation is open.

So can FOI achieve its democratic goals in an institution like Parliament? MPs divided into competing teams, where officials may be subordinated, where every move covered by an increasingly vociferous press, many decisions protected by Parliamentary Privilege?

We think yes, at least regarding FOI’s main goals of increasing transparency and accountability. While most requests have focussed on individuals of Parliament, both Houses have revealed ‘corporate’ information previously not public through FOI and have had this publicised via the media. Topics include CO2 emissions of its buildings, policies relating to pest control, the costs of construction of the Visitors Centre and the use of parliamentary facilities by outside organisations. Parliamentary Privilege has protected the things that should be protected, and not protected those things that shouldn’t.

FOI has prompted organisational change too: Since last year, MPs and peers have to be domiciled for tax purposes to remain in either House, and is the only way non-bishop peers have been able to leave the House of Lords (apart from death). This is because Lord Ashcroft’s non-dom tax arrangements were revealed through FOI. MPs can’t run up large tabs at parliamentary restaurants anymore, after an FOI request revealed some owed thousands for months.

Most officials and parliamentarians we spoke to (we interviewed 46 people for this project) agreed  that FOI has made Parliament more transparent and accountable albeit for matters that some consider minor or narrow. But the influence of the media means FOI’s other goals like increasing trust or public understanding are difficult to achieve, and may even be negatively impacted. We found many negative headlines when we sampled press stories about Parliament, even when Parliament had handed over information through FOI without fuss or delay.

But the Commons has learned a ‘bunker’ mentality towards FOI isn’t the way to go. The House of Commons Commission agreed last year to begin to publish its own papers and agendas proactively, reversing decades of secrecy. The lessons from the expenses scandal are being learned, and we know more about Parliament and its people today than ever before, in part because of FOI. Its been another step in the openness process Parliament has gone through since the first publication of Hansard in the 19 century. What’s left to find out…?

FOI and the politically empowered

Here at the Unit we’re wrapping up a project on FOI and Parliament which looked at the use of FOI by MPs and peers. We’ve been asking:

  • Is FOI another tool in MPs’ arsenal?
  • Is it useful, and has it become part of the cut and thrust of politics?
  • Or, is it not being used?

After all, MPs already have great research tools, like Parliamentary Questions, access to the House of Commons Library and many NGOs working in the field who can provide them with information. Plus they are likely to get a more robust reply from ministerial letters than an ordinary member of the public (a reason their work for constituents is so valuable).

So why do any MPs make FOI requests? Examples from different parliamentarians provide us with some answers:

A key role of the parliamentarian is to hold public institutions to account, and our previous research finds that FOI helps increase accountability of institutions. Time will tell if FOI grows in popularity as an accountability tool among the elites who know how to manipulate and publicise information more than most. Our study finds that overcoming structural resourcing shortages may be the key to this.  The time and resource issues of FOI, compared with ‘instant’ PQs, cannot be easily overcome. FOI requests and their subsequent analysis takes much time, something that heavily effects FOI’s use by peers in the less professional and less well resourced House of Lords in particular. In New Zealand, it was the switch to a proportional voting system and a parliament with at least five political parties represented that saw FOI use increase as parliamentary competition did. Maybe an elected House of Lords could at least provide the competitive impetuous for wider use by peers. Though a cynic may say any increase in use by MPs will coincide when the tally of requests becomes another feature of They WorkForYou statistics…