Should universities be exempt from the FoI Act?

Source: Miles Cole

FoI requests reveal our hand to competitors

Chris Cobb says the Freedom of Information Act leads to wasted time and money and the undermining of competitive practices…

A recent tribunal judgment confirmed that certain salary information about senior staff at King’s College London falls outside the Freedom of Information Act owing to its market sensitivity (“Salaries of well-paid scholars to remain a secret, tribunal rules”, 9 October). This follows another milestone when the FoI Act was amended to exclude pre-publication research data, a change that came into force on 1 October.

But these victories do not go far enough. Despite not being public authorities, universities are included in the FoI Act 2000 owing to the level of direct and indirect public funding that they receive. As public funding for universities reduces and the level of competition increases (not least from private providers, who are not subject to FoI), surely it is time to reconsider this?

When higher tuition fees were brought in, universities were warned against sharing pricing strategies amid accusations of anti-competitive practice. The Competition and Markets Authority is currently taking a greater interest in universities to ensure that charges and tuition fees are transparent and appropriate and that “consumer” interests are upheld. It is ironic that this closer inspection comes at a time when the FoI Act is being used to undermine competitive practices.

The FoI Act allows for 24 exemptions to refuse a request, one of which is “commercial interests”. Universities frequently use this exemption to refuse requests from suppliers wishing to gain market intelligence on contracts and procurement strategies. Some may argue that this is sufficient, but it is not. Some requesters present themselves as “information gatherers” and create directories or mailing lists, presumably to be sold for profit. There are also more subtle requests, often made in a piecemeal way by different individuals. These fishing expeditions are less easy to refuse and, over time, it is possible to gain quite sophisticated intelligence about a university’s day-to-day affairs. This could come in the form of a request for “All emails to/from any senior manager in respect of a particular system failure”, for example, or “Meetings, travel, hospitality and people/organisations visited by a dean in a particular subject”.

The FoI Act was founded with good intentions. It is an essential way in which public authorities are held to account – but universities are not public authorities and they are working in an internationally competitive market. What other sector enables competitor organisations and third parties to obtain so much information about its operational efficiencies, product development, marketing and pricing strategies?

Information about quality assurance, student numbers, senior pay, financial accountability and many other matters of public interest is already published on university websites, in annual reports and by bodies such as the Higher Education Statistics Agency, Ucas and the Student Loans Company. These data are scrutinised by governing bodies, the Quality Assurance Agency, the Higher Education Funding Council for England, researchers and journalists. The question is: what additional public interest is being served by including universities in FoI laws?

The act has also become a charter for vexatious miscreants, conspiracy theorists and misanthropes. Some of the more bizarre requests received by public bodies include questions about their state of preparedness for zombie attacks, whether they hold frozen animal specimens, the number of roundabouts in a specific area, whether they have used exorcists, the number of licences issued to tiger-keepers and the use of microchips in children.

In 2013, Jisc, the UK’s higher education IT consortium, estimated that the sector had seen a 147 per cent increase in FoI requests over the previous five years. In 2013 alone requests rose by 43 per cent. A 2012 Jisc study estimated that each request takes an average of five hours and two minutes of staff time. While some take minutes, others take weeks and involve a great number of people searching through in-boxes and files. The same 2012 study estimated that each request costs between £99 and £121 to process. In 2013 this figure had risen to an average of £145, involving an army of FoI professionals, the cost of legal advice and taking other staff away from their day jobs. The act is effectively leaching millions of pounds away from research and teaching. Is this really in the public interest?

As we approach manifesto time and political parties look for ways to reduce bureaucratic costs, we should reconsider universities’ involvement in FoI laws. Universities that receive less than 50 per cent of their income from public sources already have discretion on whether to follow European procurement rules. The same logic should apply to FoI. As public funding recedes, it is only fair to give universities the wherewithal to survive in an ever more competitive world.

Chris Cobb is pro vice-chancellor and chief operating officer at the University of London.

Laying our cards on the table builds public trust

…Maurice Frankel contends that the openness and accountability ushered in by the FoI Act boosts confidence in the sector

Given the opportunity, almost any sector will argue that freedom of information is fine for others but somehow not for them. MPs are the classic example. Having passed the Freedom of Information Act they sought to exclude Parliament from it, supposedly to protect the letters they wrote on constituents’ behalf but in fact to conceal…well, we all know what.

FoI has brought an important degree of scrutiny to universities. Anyone looking for a way out of that reform is taking a dangerous gamble.

In 2005 De Montfort University was found to have improperly upgraded the marks of underperforming pharmacology students, 50 per cent of whom were failing their first- and second-year exams. Staff who opposed the move were told that the high failure rate threatened their jobs. Marks were artificially boosted by up to 14 per cent, reducing the pass mark in one module to just 21 per cent. The university claimed that revealing details would damage their reputation and commercial interests, and those of their students. But the Information Commissioner ruled that the public interest lay in ensuring the competence of those who might go on to administer medicines to the public.

In 2009 the University of Central Lancashire was required to disclose the course materials used to teach a BSc degree in homeopathy. An appeal tribunal accepted that, in general, course materials could have commercial value to a university but that in this case there was little real competition and a significant public interest in understanding the legitimacy of a degree course as academically contentious as homeopathy.

In 2011 Newcastle University was required to disclose anonymised details of the Home Office licence that allowed it to carry out research using primates, restrained by head and body for up to six hours a day and deprived of water much of the time while carrying out repetitive tasks. A German licensing authority had previously refused permission for what appeared to be a similar study by the same lead researcher, according to the British Union for the Abolition of Vivisection, which finally obtained access to the licence after a three-year campaign, with minor redactions to protect researchers’ safety.

The act has been used by Unison and the National Union of Students to document low pay, revealing that 12,600 university staff were earning less than the living wage in 2012-13. A separate FoI survey showed that more than 24,000 teaching, research or academic higher education staff were engaged on zero-hours contracts.

In 2010 Scottish universities were found to have spent more than £100,000 in three years on honorary degrees for celebrities and prominent figures, including Donald Trump. The money had gone on travel, accommodation and hospitality. Other FoI requests revealed that universities had paid out tens of thousands of pounds to students who had complained about poor teaching and other problems. A request in 2010 to the Higher Education Funding Council for England showed that lecture theatres and halls of residence at many high-ranking universities were deemed “at serious risk of major failure or breakdown” or “unfit for purpose”.

Are FoI requests misused? The act provides a range of safeguards for universities, like other authorities. Requests can be rejected if the cost of finding information exceeds certain limits. Obsessively persistent requests may be refused as vexatious. So, too, can disproportionately burdensome requests where the value of the information does not justify the workload. A raft of exemptions protect information whose disclosure would unreasonably interfere with frank discussions, unfairly reveal personal information or prejudice commercial secrets, health and safety, research programmes, the ability to obtain legal advice, obligations of confidentiality or other interests – although disclosure may be required on public interest grounds.

FoI has brought greater openness and accountability. It may be human for institutions to grumble a little but serious resistance can be deeply counterproductive, as the University of East Anglia’s Climatic Research Unit discovered. An independent review of the 2009 “Climategate” affair criticised the CRU’s responses to reasonable requests as “unhelpful and defensive” and said that although the CRU faced an orchestrated campaign of requests by climate change sceptics, it had helped to create the conditions for that campaign “by being unhelpful in its earlier responses to individual requests”. There had been “a consistent pattern of failing to display the proper degree of openness, both on the part of the CRU scientists and on the part of UEA, which failed to recognise not only the significance of statutory requirements but also the risk to the reputation of the university and, indeed, to the credibility of UK climate science”.

Openness is essential for public trust. Trying to turn the clock back on FoI is not an option.

Maurice Frankel is director of the Campaign for Freedom of Information.