House of Commons - Post-legislative scrutiny of the Freedom of Information Act 2000

Post-legislative scrutiny of the Freedom of Information Act 2000 - Justice Committee Contents

7 The pre-publication exemption (section 22) and health and safety exemption (section 38)

202. Section 22 provides that public bodies may exempt from publication information which they intend to publish at a future date, whether or not determined, if "the information was already held with a view to such publication at the time when the request for information was made" and "it is reasonable in all the circumstances that the information should be withheld from disclosure until the date referred to [...]"[355] This time scale is not defined. The public body is not required to confirm or deny the existence of any information if that would amount to disclosure of the information.[356]

Problems with pre-publication under the 2000 Act

203. We heard from universities that the pre-publication exemption does not sufficiently protect their research work. Universities UK told us: "research is currently subject to the FOIA, and early release of research findings and data can have potentially serious implications for the quality and reputation of UK research, universities' competitive position nationally and internationally, and relationships with commercial partners."[357] The 1994 Group agreed:

It is a necessary first principle that research is conducted to the highest standards. It is this principle, embodied by the peer review system, which has contributed to the UK's international excellence in research. Requirements for research data and information to be made publically available must be in harmony with this principle, and cannot be allowed to jeopardise the viability of the research conducted in the UK.[358]

The Russell Group said it "believes that data collected in the pursuit of universities' research missions should enjoy a partial protection which would allow universities to withhold publication until—and only until—the results of the research have been published in a peer reviewed journal or equivalent recognised outlet."[359]

204. Dr Rodney Eastwood, Registrar of Imperial College London who appeared before us on behalf of the Russell Group, said the current pre-publication exemption:

[...] does not work for research, which is a complex activity that involves a lot of people, a lot of data and information and many inputs. The university will clearly publish the research—the whole point of a university is to publish its research and to make it available—but only after all that has been done and it has been peer-reviewed. Publishing bits of it prematurely runs the big risk of the recipient, the public, drawing the wrong conclusions.[360]

205. Professor Ian Diamond emphasised the length of time research may take:

[...] research follows a course, and one's ideas about the final results can change over time as one does the analysis and one looks at different variables in different ways and with different experiments. Some projects can take years, and saying that, if you have some data, they must therefore be made public and your conclusions must be ready in six months does not allow for the proper conduct of research and could lead, in my opinion, to poor results being propagated.[361]

Professor Diamond highlighted social research relying on longitudinal data as an area where information may be gathered over many years,[362] or even decades.[363] Universities UK told us that there was no case law establishing how far in the future a publication date may be for the purposes of section 22:

However, when this issue was raised in a workshop hosted by the Research Information Network, representatives of the ICO said timescales of months or years might not be considered favourably. This makes it appear less likely that the exemption could be effectively used where the period was (i) likely to be several years in the future, and (ii) where the precise point of publication could not yet be determined.[364]

A further problem with releasing longitudinal data is that the time taken to 'clean' it means incomplete or under-analysed data may be published.[365]

206. Professor Diamond told us the issue was not one of intellectual property: "Under the Economic and Social Research Council, all data collected using public funds—certainly in the social sciences—have to be lodged at the data archive, where the information is available for re-analysis by bona fide researchers from anywhere in the world. That kind of open access exists at the moment, so it is not about IP. It is simply about the development of research and premature findings being available."[366]

207. Witnesses also expressed concerns that the risk of publication they perceived coming from the Act put the domestic university sector at a disadvantage when competing for research work. The University of Oxford said it had encountered the following problems:

Companies worry about the effect that the disclosure of information about a project will have on their business or their ability to exploit intellectual property rights. To try to assuage these concerns, the University has to engage in lengthy and complex negotiations with commercial partners over the treatment of FOIA in research contracts. Recent examples include a large multinational that refused to sign a contract for a studentship worth £24,000 a year; a major UK company that required the University to use its best endeavours to ensure any disclosed information was treated as confidential and to co-operate with it in any action it took to resist or narrow disclosure; and a further multinational that asked for a clause that would allow it to sue the University if it disagreed with its response to a request under the FOIA.[367]

208. Professor Diamond told us he did not think there was an "enormous" amount of evidence of funding going to other countries because of the fear of disclosure but "the Act is still in its infancy" and: "We are in immense global competition to undertake research, and it is the top research that is absolutely essential given the competitive nature of the UK over the next few years. We need to ensure that we are able to undertake research absolutely properly, and anything that had that impact should be thought about very carefully."[368] Universities UK observed that proving a negative, that funding was not awarded to domestic universities, was difficult:

[...] evidence of commercial partners being put off working with UK institutions is largely anecdotal. However, in a case involving the Environmental Information Regulations (EIR) recently settled by the Information Commissioner for drafts of a published paper, the University of East Anglia highlighted that:

In another matter, we recently received exactly such representations from the IPCC TSU [Intergovernmental Panel on Climate Change Technical Support Unit] based in Geneva, Switzerland in which they explicitly noted that release of such material would "[...] force us to reconsider our working arrangements with those experts who have been selected for an active role in WG1 AR5 [Working Group One, Fifth Assessment Report] from your institution and others within the United Kingdom."[369]

The pre-publication exemption in Scotland

209. Section 27 of the Freedom of Information (Scotland) Act 2002 provides an exemption for information for future publication. Section 27(1) is stricter than the similar provision in section 22 of the 2000 Act in that it requires the publication date be no more than 12 weeks after the date of the request. Section 27(2), however, provides an exemption for ongoing research: "Information obtained in the course of, or derived from, a programme of research is exempt information if:

(a)the programme is continuing with a view to a report of the research (whether or not including a statement of that information) being published by—

(i)a Scottish public authority; or

(ii)any other person; and

(b)disclosure of the information before the date of publication would, or would be likely to, prejudice substantially—

(i)the programme;

(ii)the interests of any individual participating in the programme;

(iii)the interests of the authority which holds the information; or

(iv)the interests of the authority mentioned in sub-paragraph (i) of paragraph (a) (if it is a different authority from that which holds the information).[370]

210. The Russell Group told us that "Universities in Scotland have confirmed that the research exemption has been used effectively."[371] The University of Salford told us that the Scottish approach would bring "clarity" to the pre-publication exemption.[372] The University of Bath said it would "strongly support" an amendment to the Act which would bring the publication exemption in line with the position in Scotland.[373] The University of Oxford emphasised that such an exemption applies to pre-publication material only: "Once the results of a study have been published, we recognise there may be a public interest in the disclosure of the underlying data."[374] It was noted in the House of Lords that similar exemptions exist in USA and Irish legislation.[375] The University of Surrey went further and called for a blanket exemption without a prejudice test: "An extension to section 22 which states that all research data should be considered as being for future publication would help to resolve this issue."[376]

211. However, the University of Stirling recently had difficulties rejecting a request from Philip Morris, the tobacco company, for data on underage smokers collected in a study sponsored by Cancer Research. The University was concerned that the data would be used to market tobacco to young people, which could also have the effect of deterring sponsors. The pre-publication exemption did not apply because the University was not intending to publish that dataset. The request was finally refused on the grounds of the cost of compliance.[377]

212. Section 102 of the Protection of Freedoms Bill 2012 provides that:

Where—

(a)an applicant makes a request for information to a public authority in respect of information that is, or forms part of, a dataset held by the public authority, and

(b)on making the request for information, the applicant expresses a preference for communication by means of the provision to the applicant of a copy of the information in electronic form,

the public authority must, so far as reasonably practicable, provide the information to the applicant in an electronic form which is capable of re-use.

213. Amending section 22 in line with the Scottish exemption on pre-publication was discussed by the House of Lords Grand Committee during its deliberation on section 102 of the 2012 Act. Lord Henley told the Committee: "As a coalition Government, we are committed to greater transparency. I want to make it clear that we will not introduce exemptions into the Freedom of Information Act unless we can have that clearly demonstrated."[378] Appearing before us, Lord McNally said:

It is quite legitimate of the universities and other research institutes to want to protect intellectual property, and I very strongly support that, but some of the lobbying that I have received paints a more lurid picture than when I am told what the Act already protects.[379]

We note that it was no part of the original campaign for freedom of information to seek the premature disclosure of university research.

214. We recommend section 22 of the Act should be amended to give research carried out in England and Wales the same protection as in Scotland. While the extension of section 22 will not solve all the difficulties experienced by the universities in this area, we believe it is required to ensure parity with other similar jurisdictions, as well as to protect ongoing research, and therefore constitutes a proportionate response to their concerns. Whether this solution is sufficient and works satisfactorily should be reviewed at a reasonable point after its introduction. We address concerns over commercial competitiveness under section 43 below.

215. A number of universities, including Manchester, Essex and Durham, suggested that universities should only be subject to the Act in terms of management functions, like the BBC and the division between its journalism and broadcasting and management sectors.[380] Other submissions from universities suggested that the university sector should be taken out of the jurisdiction of the Act altogether. We explore these issues in the following Chapter.

The Act and the Animal (Scientific Procedures) Act 1986

216. Understanding Animal Research noted that testing on animals for the purposes of medical research into disease and injury was:

[...] controversial and while most of the public are supportive, it can provoke strong feelings among those who oppose it. Most of those opposed to animal research engage in passionate debate and sometimes employ radical propaganda, but campaign within the law. However, a small minority of radical animal rights extremists are prepared to use intimidation or outright violence to further their cause. This has ranged from threats to arson attacks and letter bombs.[381]

217. Section 24 of the Animal (Scientific Procedures) Act 1986 (ASPA) makes the disclosure of details of licences involving animal testing a criminal offence punishable by up to two years in jail. Section 44 of the Freedom of Information Act exempts information from disclosure when there is a statutory bar preventing it. Understanding Animal research noted that under European law disclosure of information "should not violate proprietary rights or expose confidential information" and "published details should not breach the anonymity of the users".[382] The relationship between the two was explored by the Upper Tribunal following an application to Newcastle University by the British Union for the Abolition of Vivisection (BUAV) for information contained in project licences for primate research.[383] It should be emphasised in this context that both the Upper Tribunal and Newcastle University agreed that BUAV campaigned peacefully and were not connected with any group which advocated violence.[384]

218. The Upper Tribunal held that "section 24 of ASPA was not a statutory bar to disclosure" but that some information could be redacted from the copies of the licences disclosed under section 38 (where disclosure would endanger the mental or physical health or safety of University staff and students) and 43 (the commercial exemption). Newcastle University did not appeal and redacted information was passed to BUAV. The University described the case to us as a "legal 'Catch 22' situation" and added that "it is deeply regrettable that conflicts in legislation are left to such test cases to resolve."[385] Dr Rodney Eastwood told us:

[...] the Home Office declined to prosecute [the University of Newcastle] for doing so, but, on the basis that if any future case came up it would have to be directed by a tribunal to find in favour of the university, the universities are now in the position that, in order to follow the case, they may have to undergo expenditure of a substantial amount in legal fees to go through the tribunal process each time in order to prove to the Home Office that the information was properly released. The conflict between the two is quite difficult to resolve.[386]

219. David Thomas, Legal Consultant for BUAV, agreed that there was "partial" conflict between the Animal Scientific Procedures Act and the Act but identified it as being within the Home Office:

The Court of Appeal in a BUAV case interpreted section 24 in a way that effectively said that researchers, in terms of what they gave to the Home Office, had a veto over what the Home Office could subsequently disclose. The Home Office was then taking it a stage further—we think quite wrongly—by saying that under section 24 it cannot disclose even information that it has generated itself—for example, action that it has taken following breaches of licence conditions. It says that it cannot even tell Parliament what action it takes. There is a real problem as far as the Home Office is concerned. That is why the BUAV and many others believe that section 24 should go and leave things to the exemptions under the FOI Act to strike the balance that needs to be struck between accountability and transparency on the one hand and legitimate concerns on the other.[387]

220. Dr Nick Palmer, Director of Policy for BUAV, told us that "the new European Union directive on animal experiments is recognised by the Home Office to be incompatible with section 24 as it stands."[388] On 17 May 2012, Lynne Featherstone MP, Parliamentary Under Secretary of State for Equalities and Criminal Information, told the House of Commons:

We also propose to retain the current requirement that individuals carrying out regulated procedures on animals must hold a personal licence authorising them to do so. We will, however, explore the opportunities to simplify the detail of personal licence authorities and to remove current requirements which increase regulation without adding to the effectiveness of the licensing process. We will ensure any changes avoid detrimental impacts on levels of compliance or animal welfare and protection.[389]

221. As section 24 of the Animal (Scientific Procedures) Act 1986 remains under review by the Home Office following changes in European law we make no recommendation as to how the Government should act but will consider the outcome of the review when it is received. It should not be necessary to amend the Freedom of Information Act to meet the concerns of universities in this area.

222. We strongly urge universities to use to the full the protection that exists for the health and safety of researchers in section 38 of the Act, and expect that the Information Commissioner will recognise legitimate concerns. No institution should be deterred from carrying out properly regulated and monitored research as the result of threats; this was not Parliament's intention in passing the Act and we are happy to reiterate that that remains the position.

355 Section 22 Back

356 Section 22(2) Back

357 Ev 120 Back

358 Ev w89 Back

359 Ev 106 Back

360 Q 104 Back

361 Ibid. Back

362 Ibid. Back

363 Ev 170 Back

364 Ibid. Back

365 Ibid. Back

366 Ev w199 Back