ICO guidance on FOIA & research information held by universities
The Information Commissioner's Office has now published guidance on the application of the Freedom of Information Act 2000 to research information held by higher education institutions - that is, universities and publicly-funded research bodies. Solicitor Joanne Stronach summarises the key points of interest in the guidance.
Following the Independent Climate Change E-mails Review – the “Muir Russell Report” (released in July 2010) the Information Commissioner’s Office and the Higher Education Sector have been meeting regularly to discuss a number of issues of importance to the sector in the context of Universities’ freedom of information obligations. The Information Commissioner's Office (ICO) has now published guidance on the application of the Freedom of Information Act 2000 (FOIA) and Environmental Information Regulations 2004 to research information held by higher education institutions - that is, universities and publicly-funded research bodies (HEIs). Various key points of interest in the guidance are summarised below. This update focuses on the guidance regarding the FOIA.
Purpose and aims of the guidance
In January 2011, the House of Commons Science and Technology Committee recommended that the ICO produce guidance on how freedom of information (FOI) legislation should be applied to scientific research, following the high-profile cases about the disclosure of data and other information about climate change involving the University of East Anglia (which led to the Muir Russell Report) .
The guidance notes that HEIs are public authorities for the purposes of the legislation. However, HEIs are unlike many other public authorities in certain aspects – most universities have charitable status, they are decreasingly funded by the public purse and parts of their income are derived from contracts to carry out privately-financed research projects, often in partnership with commercial organisations. Information relating to, or output from, scientific research may be shared with colleagues, partners and peers across a range of organisations, many of which are not subject to FOI legislation. The guidance aims to increase academics' and researchers' understanding of, and equip practitioners to deal with, the distinctive challenges that FOI legislation can pose for HEIs.
A key issue is whether or not, in relation to any piece of information requested, it is held by the institution which is being asked to disclose it.
When is information “held” for FOI purposes?
For FOIA purposes, information is held by a public authority unless it is held on behalf of another person. Clearly, therefore, it will also be held by the public authority if it is held by another person on behalf of that authority.
If a public authority holds information to any extent for its own purposes, then even if it is also holding that information for someone else, it is nevertheless holding the information for the FOIA purposes. Where the information is held solely on behalf of another person, the public authority does not hold the information itself. However, where a public authority holds information principally or partly on behalf of another person and exercises control of the information, it will also hold the information itself.
The guidance notes that there are circumstances specific to the higher education sector which complicate the establishment of whether the information is “held” by the HEI. For instance, academics often work in several capacities - maybe as examiners, clinicians and researchers - as well being employed by the university. They may also conduct privately-financed research or peer review others' work. There is a possibility that university networks and servers will be used to store such information which is often not directly “work” related. All of this can create complications in determining whether information is “held” by the University.
Relevant questions in considering whether information relating to scientific (or other) research is held by an HEI for the purposes of the legislation must look at the context around each piece of information and include whether the related work is contractual with the university, or funded by the university.
Clearly it is possible, and the guidance highlights that, that information held on personal, non-work e-mail accounts can still be subject to disclosure under the legislation. Generally, if the information held on a personal e-mail account is related to public authority business, it is likely to be held on behalf of the public authority, as explained above.
Refusing a request - applying exemptions/exceptions
The guidance refers to various exemptions in the FOI legislation that may be particularly relevant to the higher education sector or where information constitutes research. The exemptions discussed, in addition to those discussed in detail below, include those that apply where information would prejudice international relations (section 27, FOIA) or prejudice open discussion, academic freedom and peer review (section 36, FOIA).
1. Information obtained in confidence (section 41, FOIA)
The guidance acknowledges that as universities and research institutes often work in partnership with third parties, it is often the case that a research project may involve exchanging information with them. It says that a requirement to disclose under the FOIA should not undermine HEIs' ability to do this; section 41 of the FOIA can offer some protection for information that is obtained in confidence from third parties.
There are two components to section 41, as follows:
(i) the information must have been obtained by the public authority from another person. It is not restricted to information provided verbally or in writing. The exemption does not cover information which the public authority has generated itself, although it may cover documents (or parts of documents) generated by the public authority if these contain confidential information provided by a third party. It is the information itself, and not the document or other form in which it is recorded, which needs to be considered; and
(ii) disclosure of the information would give rise to an actionable breach of confidence. In other words, if the public authority disclosed the information, the provider or a third party could take the authority to court.
The guidance indicates that it is important to clearly identify information which is obtained in confidence when working with external commercial partners. Public authorities can use confidentiality clauses to identify information that may be exempt, but they should remember that the law will only uphold confidentiality obligations and relate to information which is genuinely confidential it has the necessary quality of confidence. The guidance remind HEIs of the Commission’s view that public authorities carefully consider the compatibility of confidentiality clauses with their obligations under FOI legislation.
Section 41 is an absolute exemption (which means that there is no public interest test).
2. Commercial interests (section 43(2), FOIA)
Under section 43(2) of the FOIA, information can be exempt if its disclosure would, or would be likely to, prejudice the commercial interests of any person (including the public authority holding it). A commercial interest relates to a person's ability to participate competitively in a commercial activity, that is, the purchase and sale of goods or services. There is a distinction to be drawn between commercial interests and financial interests. While there will be many cases where prejudice to the financial interests of a public authority may affect its commercial interests, this is not always the case.
The ICO expects public authorities to consult with affected third parties. However, while the views of third parties are important, they will not automatically be accepted so as to mean that commercial companies involved with public authorities can veto the FOI process. HEI’s should resist collateral terms which might expose them to breach in the event of an unsuccessful argument that an exemption is relevant.
The exemption under section 43(2) of the FOIA is subject to the public interest test. The guidance notes that, regarding the public interest, there is a presumption running through the FOIA that openness is, in itself, to be regarded as something which is in the public interest. Other relevant factors in considering whether there is a public interest in disclosure include:
• promoting accountability and transparency in the spending of public money; for HEIs, there will be a greater public interest in disclosing information relating to research that is publicly funded (and note also that HEI’s charitable obligations to publish);
• allowing individuals and companies to understand decisions made by public authorities affecting their lives; for example, there will be a greater public interest in research that may have a particular impact on the public; and
• bringing to light information affecting public health and public safety. The prompt disclosure of information by scientific and other experts may contribute not only to the prevention of accidents or outbreaks of disease but may also increase public confidence in official scientific advice.
The content of the information and contextual factors including the age of the information and the timing of the request will all have some bearing on the balancing of the public interest. The greater the amounts of money involved or the number of people affected by decisions the greater will be the public interest in disclosure. Note our recent briefing on the Government’s transparency agenda, which indicates the refusal to disclose is likely to become harder to justify.
Copyright and intellectual property rights (IPRs)
The guidance also states that FOI legislation only gives access to information. It does not give the recipient the right to reproduce or commercially exploit the information in breach of copyright or other IPRs. However, an authority cannot place any conditions or restrictions on access. When giving access to information under the FOIA, for example, it cannot require the requester to sign any agreement before having access to the information. FOI legislation does not prevent a copyright notice being issued with information disclosed, and a claim could be made if the individual subsequently uses the information in breach of copyright.
The ICO encourages HEIs to have a policy that enables research information to be made available under an open licence. This is clearly not possible in all circumstances (and is not a requirement of the legislation) but reflects to an extent an HEI’s duty, in accordance with charities law, to publish the results of research it as part of its public benefit obligations.
Proactive disclosure and publishing information
Under section 19 of the FOIA, public authorities have an obligation to adopt a publication scheme approved by the ICO. To enable universities to comply with their obligations to operate a publication scheme, the ICO has published a specialist guide which provides examples of the kinds of information that universities are expected to provide in order to meet their commitments under the model publication scheme*. The ICO encourages HEIs to go further in the publication of background and factual data supporting research wherever possible, particularly once research projects are complete, so that certain categories of research information are consistently available. HEI’s should, of course, consider their contractual obligations prior to disclosing information but there is already an obligation under charity law, mentioned above, to publish results.
The guidance will be of interest not only to HEIs, but also to the many third party commercial organisations that fund them to carry out research projects. As the guidance observes, HEIs are unlike many other public authorities because, among other things, parts of their income are derived from contracts to carry out privately-financed research projects, often in partnership with commercial organisations. It will be important that the right balance between transparency and confidentiality is struck; the worst case scenario would be a reduction in university/industry partnerships, with the attendant funding implications for HEIs, and, potentially, a “brain drain” out of either the University research space in favour of industry or out of UK HEIs in favour of research institutions with the ability to ensure confidentiality of ground-breaking research.
* Note: ICO is currently reviewing its publication scheme definition documents agreements will reflect this permitting publication (usually subject to the consent of any third party funder) and use by the HEI as part of its teaching and learning function.
About the author
Joanne Stronach is joint Head of Burnetts' Employment Law & HR team.