Adam Tickell
Home Office minister Oliver Eden rejected an amendment to the Protection of Freedoms bill, on 15 February, that would have extended the limited exemption to the Freedom of Information Act enjoyed by Scottish universities to the rest of the UK.
Although supported by Universities UK, the Russell Group and the 1994 Group, a cross-party alliance of peers failed to convince the government that there was any need to change primary legislation.
Universities have been slow to appreciate the potential risks in the Act. The legislation was initially expected to open the workings of government to the public gaze. But climate-change sceptics realised that the law allows them to request data, notably achieving a ruling from the Information Commissioner’s Office that Queen’s University Belfast had to release longitudinal tree ring data. This ruling showed that research is treated as being discoverable under the Act and so academics have few proprietorial rights over their work. Furthermore, the Protection of Freedoms bill, which is likely to pass into law in the next few weeks, will add a new requirement to permit re-use of the data.
In discussions with both the Home Office and the Information Commissioner we have argued, unsuccessfully, that universities should be treated as analogous to the BBC. The corporation enjoys an exemption (itself subject to the public interest test) only for information collected for the purposes of journalism. The analogy shouldn’t be stretched too far: universities only want research data to be exempt until they can be analysed and published. This would not only ensure that publicly funded research is available to the public, it would also be in the interests of scientific integrity.
Academics could spend the time needed to conduct robust analysis without fearing that a competitor (from anywhere in the world) could successfully request their data. In return, a stronger requirement to disclose underlying data after publication would allow for interrogation of results by other researchers and, consequently, strengthen UK science.
There are at least two explanations for our failure to convince the Home Office and the Information Commissioner of the need to change the bill. First, the ‘Scottish exemption’ is itself flawed and didn’t prevent tobacco giant Philip Morris International from requesting data on teenage attitudes to smoking from the University of Stirling. That information was derived from vulnerable groups and was never intended for publication—so it was not protected by future plans to publish. The degree to which Scottish law would have protected Stirling remains untested, however, because Philip Morris dropped its claim in response to adverse publicity.
Second, there are exemptions that universities, like all public authorities, can invoke, including commercial confidentiality, clear and transparent ‘publication schedules’, which explain when data will be available, and the costs involved in preparing the data. Furthermore, after the Protection of Freedoms bill becomes law the Justice Committee will be conducting ‘post-legislative scrutiny’ which allows us to make representations on the costs associated with the law.
Legal advice obtained by Universities UK suggests that there are likely to be circumstances when the exemptions do not provide the protection for research data that would reassure universities. However, the minister’s comments to the House of Lords have moved the debate on considerably and gave explicit recognition that requests for research data need to be handled carefully. He said: “We are all agreed that the UK’s position at the forefront of international research must be protected and enhanced. I would not want to do anything that could endanger that. We are also agreed that, notwithstanding this government’s commitment to transparency, adequate safeguards must exist within information rights legislation to make sure that that position is not undermined through inappropriate and premature disclosure.”
This statement is important and the Information Commissioner will have to consider it in reaching any future judgements, despite the commissioner’s irritation at universities when writing in The Observer on 19 February.
However, it isn’t just the Information Commissioner’s Office that will need to handle requests carefully. Universities will need to read the guidance and ensure that they have defences in place to protect researchers. We must also embrace the more general transparency movement: routinely publishing our data at the appropriate moment, encouraging open access to our research publications and ensuring that our intellectual property can be exploited to the benefit both of universities and the UK economy.
If, and only if, we can demonstrate such a commitment, we are more likely to achieve a positive result if there remains a need for primary legislative change on the Freedom of Information Act in future.
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Adam Tickell is pro-vice chancellor for research and knowledge transfer at the University of Birmingham.