FOI and universities: A report on the experiences of FOI officers in HE institutions

The Constitution Unit’s research project on the impact of FOI on universities is nearing completion. To gain an insight into the experience of universities in dealing with their FOI responsibilities, we conducted a survey of FOI officers working the HE sector and examined FOI requests made to universities contained within a sample of disclosure logs.  The two-part report detailing the results of our analysis of can be found here.

We found the most common problem that FOI officers encountered were related to their colleagues,  with 92% of respondents citing resistance and a lack of awareness of the legislation amongst other staff as having a negative impact on their ability to carry out their responsibilities and respond to requests.  In addition, similar to the findings in our previous study on local government, we found that colleague orientated difficulties appear to be mitigated by a supportive senior management team.

The most frequently reported positive aspect cited by the officers was the increase in transparency and openness that the FOI/EIR legislation encouraged within their institution as confirmed by 73% of respondents. This included improvements in staff attitudes towards disclosure and the amount of information proactive published by the university. However, throughout the survey it was evident, and was also acknowledged by participants, that it was much easier for them to identify negative aspects rather than positives.

The disclosure logs showed journalists and the public to be the most common requesters, accounting for 59% of the 780 requests we analysed between them. The most commonly requested information was related to ‘student issues’, followed by ‘HR and staff issues’ and then ‘teaching and assessment’.

Journalists appear to be much more interested in interrogating student life than students are, accounting for 35% of the requests for information on ‘student issues’ compared to the 7% originating from current students, though several officers commented in the survey that they anticipate that this will increase following the introduction of the £9k tuition fees in the forthcoming academic year.

The disclosure log analysis also provided a useful indicator of the level of impact that controversial research can have on an institution. 13% of the requests we coded were about research, 84% of which were contained within the East Anglia disclosure log. This is demonstrative of the effect that the climate-based research and subsequent ‘climategate’ event had on the type and volume of requests received by East Anglia. Generally research focused requests were for research data itself or the research ‘policies’ of the institution.

Please see our report for the full details of our findings.

The project is funded by the Leverhulme Trust, and is due to be completed later this summer. Please see our project page for further outputs.

Justice Committee FOI Evidence: A Quick Guide

The Justice Committee has received 112 submissions providing evidence on which to base their post-legislative scrutiny of the FOI Act. Twenty-five per cent of these are from universities, or bodies representing them, making HE by far the most vocal sector.

A number of common themes have emerged. One point, made by the Information Commissioner, among others, was that public authorities should be allowed to reject requests on the grounds that they are “frivolous” as well as that they are “vexatious”. This would allow them to bin queries which, while not calculated to harass or annoy the Council, are simply very silly. Bad news for the “Concerned Citizen” who caught Leicester City Council napping when he asked what planned to do to fight the zombie menace.

Many public authorities complained about the cost of dealing with FOI requests, and more generally, the costs that currently ‘don’t count’. Requests are cost-barred if the price of answering them would be more than £600 for central government and £450 for everyone else . Staff time is valued at £25 per hour. Time spent considering exemptions or redacting certain information does not count towards the total.  Leeds Council said  that this results in underestimating of the real cost of FOI, not least because an hour of staff time costs them more than £25.

The Ministry of Justice, and the NHS Foundation Trust Network, are two among a number of public authorities who worry about who benefits from FOI. In some cases, they say, commercial organisations use the Act to gain a competitive advantage. This means that the FOI Act is effectively subsidising certain businesses- which they claim was not Parliament’s intention when passing the Act 12 years ago.

Oral evidence by journalists the following week- Martin Rosenbaum, Doug Wills, David Higgerson and David Henke – raised a number of points relating to their experience as requesters. Although the Act had caused a “sea change” in access to information, it has not created a culture of openness among public authorities. Despite apparent commitment to FOI, every so often, Martin Rosenbaum said, “the mask slips” and the true face of government emerges. The Home Office have even accidentally sent him an email discussing the department’s desire to keep certain documents secret, because they show that there is a lack of evidence to support Home Office drugs policy.

The four said Act has altered journalistic practice. It has encouraged whistle blowers, because they now do not need to hand over documents to journalists. Instead, they can simply recommend a FOI request. Additionally, some stories now begin with a request made by a member of the public. This means that more voices are heard in the public debate. But it doesn’t always improve the quality of that debate. On the contrary, sometimes it “improves the quality of people’s prejudices”, by allowing them to feed their hunger for information only on their personal favourite titbits.  They also noted the hypocrisy of organisations that complain about request volume, and also complain about requests from journalists.  Journalistic use of FOI, they said, is efficient:  the information extracted is published and the media’s entire audience, instead of just one person, can be informed.

We submitted oral, as well as written, evidence to the Justice Committee based on our different research projects over the years. We reiterated our conclusions that the Freedom of Information Act has succeeded in its core objectives of promoting the transparency and accountability of public bodies. However, the Act was also sold as a mechanism that would increase public trust and participation, improve the quality of decision making and improve public understanding of the political process. It is almost impossible to measure whether or not it has delivered on these promises and moreover, these policy goals are somewhat out of FOI’s reach (see our previous post on the problem of measuring, let alone increasing public trust, for instance).  We also stressed the problems of measuring ‘concentrated costs’ of FOI against ‘dispersed ‘benefits’, which inherently skews the discussion. You can see this reflected in the submissions themselves, few of which attempt to quantify FOI’s benefits in monetary terms, but are quick to try calculate its costs.

Jim Amos, drawing on his experience in researching and also training FOI, also asked FOI officers to help themselves, adding a pragmatic note to the review’s proceedings. The way to make sure the Act works well is not necessarily amendments and fees, but “robust professionalism”. Public authorities should make use of the exemptions and the cost limits available to them. What they should not do is work very hard to fulfil unreasonable requests, and then complain about the burden involved in doing so. Whatever the results of this post-legislative scrutiny, this advice ought to be heeded.

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.

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!)

Whose freedom is it?

In March 2010, an animal rights activist sent Freedom of Information requests to universities for details of experiments conducted on animals.

“We’re putting the FOIs in just to find out what is happening with vivisection at the universities. If they’ve got nothing to hide, then it’s not a problem for them to put the information out there,” the activist told The Guardian.

The underlying statement was clear: if they don’t disclose their research, they are probably doing something worth hiding, and whatever information they did disclose would be used to protest against them — a Catch-22 scenario.

The FOI law has become a preferred tool of anyone involved in politics — and it is not surprising, as obscurity is one of the main characteristics of an undemocratic government. No one can argue against the right to government transparency in the UK – but does it trump academic freedom?

Last month, the president of the Royal Society, Sir Paul Nurse, said FOI was being used by organised campaigns as a tool to intimidate some scientists and that the current law should be revised. He said this after the launch of a Royal Society study meant to examine ways of improving access to scientific data.

“I have been told of some researchers who are getting lots of requests for, among other things, all drafts of scientific papers prior to their publication in journals, with annotations, explaining why changes were made between successive versions. If it is true, it will consume a huge amount of time. And it’s intimidating,” Nurse told The Guardian, adding that some requests may have been intended to simply stop scientists from working.

Nurse may have been referring to the University of East Anglia’s ‘Climategate’ scandal, where e-mails showing scientists trying to avoid FOI requests – some by climate change sceptics were hacked and revealed.

The Unit, headed by Professor Phil Jones, was flooded with requests. Some e-mails showed scientists figuring out ways to sidestep them, while others showed them desperate to stop responding and get back to work.

“This is all about academic freedom. I’m just a humble scientist trying to do research,” Jones told Martin Rosenbaum, who writes the BBC’s Open Secrets Blog about Freedom of Information.

Nurse is not the only one who thinks FOI and academic freedom are often mutually exclusive. In April, the Mackinac Centre, a policy research group with libertarian and conservative influences, filed requests with the University of Wisconsin and Michigan State University asking for e-mails that mention collective bargaining disputes. This prompted Ian Robinson, a lecturer in the Department of Sociology at the University of Michigan, to collect 1600 signatures on a petition for academic freedom.

In Virginia, the American Association of University Professors, the Virginia ACLU, the Union of Concerned Scientists, and nine other groups called on the University of Virginia to “[balance] the interests in public disclosure against the public interest in academic freedom”. This was in response to a FOI request on the work of climate scientist Michael Mann.

On the other hand, academics immersed in controversial research projects such as climate change, or have contentious methodology — animal testing — are the usually the ones receiving a large amount of requests. Besides, these bodies generate much of the data circulated through newspapers, magazines, blogs — in other words, it is the data we all feed on. Shouldn’t it be the public’s right to scrutinise their scientific methods?

Besides, scientists have safeguards within the law to protect them from vexatious requests, said Maurice Frankel, the Director of the Campaign for Freedom of Information in a letter to The Guardian, responding to Nurse’s statement.

“Unreasonable requests for all pre-publication drafts of scientific papers can be refused under an exemption for information due for future publication,” he said.

“Explanations of why changes to successive drafts were made do not have to be provided unless they exist in writing. Multiple related requests from different people, if they are co-ordinated, can be refused if the combined cost of answering exceeds the act’s cost limit,” he said.

Hiding information may also make things worse for scientists, Frankel said.

“It was the misguided attempt to deny ammunition to critics that led to the [University of East Anglia] Climategate fiasco,” he said.

The hacking of CRU’s e-mail was reportedly triggered by the institution’s sidestepping of FOI requests – people who believed their right to obtain information was being trampled on (others question whether the Russian or the Chinese government is the real culprit).

Having the right to refuse information when it clashes with some scientists’ own freedoms seems like the optimal way to guarantee the rights of the requester and the provider of information simultaneously. And it’s already provisioned in the law. But do the safeguards really help academics studying controversial matters?

Whether academics deny or provide ammunition to their critics, they will be criticised or harassed nonetheless. Regardless of whether the academic is acting within the law, not providing information can turn into a self-directed bullet.

University funding and access to information: does FOI have a corrosive effect on trust?

The funding of universities is all over the press at the minute, but while the fee rise may be taking the headlines, a furore over donations from dubious sources is almost certainly brewing.

Howard Davies, the former director of the LSE, resigned amid the controversy over Libyan donations to the School, and stories are starting to emerge as part of a campaign to uncover links between British universities and dictatorial regimes. Conservative MP, Robert Halfon, has made requests to 100 top-rated universities aimed at making their financing public knowledge. Durham University was among the first to have their laundry aired last month, when it was revealed that the University had received £700,000 in research grants from Middle-East sources, including £11,000 from the Iranian government[1].

The morality involved in this funding is a minefield in itself, but the implications for FOI are also of interest. On a superficial level, university funding is likely to be the next big story to emerge through the use of FOI. As Mr Halfon gets more responses to his requests it seems likely that funding for higher education will come from a variety of morally suspect sources, and so as a use of FOI to scrutinise public bodies, the subject is of interest. But there is a problem that is developing alongside such stories.

While scrutiny may be flourishing with FOI, as another scandal develops through its use, university funding points to an emerging difficulty: the potentially corrosive impact of transparency on trust. One of the key aims that pro-FOI campaigners argued for while the Act was being drafted was that decreasing secrecy would lead to greater trust in public bodies, but the reality might be the exact opposite.

It is the nature of the press that the stories that will make the biggest impact, and generate the biggest sales, are scandalous: If the results of requests for details of MPs expense claims had proved parliamentarians to be wholly honest then there would have been no story. Paradoxically, while greater levels of scrutiny and a higher chance of journalists uncovering misdeeds may increase trustworthiness, it may do so at the expense of trust[2].

So what can be done? The answer is probably not very much. The more successfully FOI uncovers the wrongdoings of public employees, and the greater the number of their misdeeds that are identified, the less likely people are to trust them. It seems that the more effective a system of FOI is, the more likely it is to damage public trust. Perhaps in the long run, when all the skeletons are uncovered, trust will be improved, but as the investigation into universities has demonstrated, there are still plenty more to find.

* * * *

[1] The Institute for Middle Eastern and Islamic studies at Durham University is a highly regarded centre for study of the middle east (http://www.dur.ac.uk/sgia/imeis/).

[2] It’s worth noting that press is only one indicator of public trust, and it may be very difficult to measure trust more widely, but nevertheless the media important in this regard. The Ministry of Justice and the ICO have published more detailed research into trust and FOI:

http://www.justice.gov.uk/publications/information-rights-tracker-surveys.htm

http://www.ico.gov.uk/~/media/documents/library/Freedom_of_Information/Research_and_reports/FOI_REPORT_FINAL_12_MAY.ashx

Climategate: just the tip of the iceberg?

“Climategate” hit the news again last month with the publication of the Select Committee Report, but beneath the climate-sceptics and the angry headlines lurks another problem: what does FOI mean for universities?

Richard Thomas, the former Information Commissioner, summed up the position under the FOIA when he spoke at the latest inquiry into the scandal. He said: “[t]he fact that FOIA requests relate to complex scientific data does not detract from the proposition [that FOI improves accountability and good governance] or excuse non-compliance”. FOI legislation includes exceptions for information that is intended for future publication, as well as where commercial interests may be harmed, but it is not yet clear what these exceptions cover in academia. Lack of clarity is a problem in itself, but it is not alone.

First, there are the administrative burdens and costs in the wake of sizable cuts in the education sector. Websites such as academicfoi.com are becoming involved in investigating universities and their employment practices as well as those interested in the work of academic staff. With academic institutions becoming the target of FOI in themselves as well as for their research, their workload could well increase. This scrutiny may increase standards, but it has other effects.

On average, universities have less than the equivalent of one full time member of staff dealing with ‘FOI issues’, with universities struggling to respond within time limits[1].

If universities are to maintain records to the standard required to fulfil requests, then this will require either more staff, or for current staff to shift their attention. The choice between increased costs or decreased services will not be easy in the current climate.

Second, while research councils are encouraging academics to share data, the idea is less than welcome among many researchers. Professor Mike Baillie, in particular, has been scathing about the idea that his data is up for grabs for the ‘price of a stamp’: “[w]e 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”. Is it right that FOI can make this hard work of researchers public property? What is the effect on copyright and how will it apply to private funding?

On the other hand, while life may be harder for academics facing FOI requests, it also creates new opportunities. Researchers at the University of Manchester have used FOI to find that Muslim terrorists are no more likely to come from areas with large Muslim populations than anywhere else, while the New Scientist scrutinised the preparedness of the MOD for nuclear accidents.

Right now there are more questions than answers, but what is clear is that clarity is needed. The higher education sphere is both a user of and subject to FOI, and it needs to work out what this means and adapt. It is with this in mind that the Research Information Network, in association with several other organisations, is running a series of workshops next month to examine the implications of FOI for the higher education research community. The Constitution Unit will be contributing to these events, and the hope is that this is the first step in working out what FOI means for the academic sphere.

[1] Joint Information Systems Committee infoNet, GuildHE and Universities UK. 2009. Information Legislation and Management Survey 2009 (http://www.jiscinfonet.ac.uk/foi-survey/2009/im-survey.pdf)