Justice CommitteeWritten evidence from Durham University

Summary

1. The University understands and supports the objectives of the Freedom of Information Act 2000 and wishes to be open and transparent. However, it is the experience of the University that the legislation fails to deliver its intentions and has a significant number of weaknesses.

2. The University does not believe that the Act is operating in the way in which it was intended, primarily due to the burden on resources experienced and the environment of confrontation that it creates with the Press.

3. The University makes a number of recommendations to the committee. Primarily we believe that we should be removed from Schedule 1 as the legislation is unnecessary for us and the wider higher education sector. The University believes that the objectives of the Act could be achieved more effectively in the higher education sector through a code of practice, perhaps including the requirement to develop and maintain a Publication Scheme, and accountability to HEFCE rather than the Information Commissioner’s Office. Should the present legislation remain in force, we suggest amendments that could be made to improve its operation and reduce burden on public authorities.

Introduction

4. Durham University is a world-class university engaged in:

High quality teaching and learning.

Advanced research and partnership with business.

Regional and community partnerships and initiatives.

Services for conferences, events and visitor accommodation.

5. The University has 16 colleges which provide residential, social and welfare facilities for their student members. Academic teaching and research programmes are delivered through departments contained within three faculties—Arts and Humanities, Science and Social Sciences and Health.

6. The University currently has over 16,000 students and employs just under 4,000 members of staff.

7. Durham University is submitting written evidence to this inquiry in its capacity as a public authority under Schedule 1 of the Freedom of Information Act 2000 (hereafter referred to as “the Act”).

Information for the Committee

Does the Freedom of Information Act work effectively?

8. The University does not believe that the Act is operating in the way in which it was intended, primarily due to the burden on resources experienced and the environment of confrontation that it creates with the Press.

9. The University has no evidence to show that release of information under the Act has encouraged better decision-making in the University or greater public involvement in decision-making. The most prevalent group to make information requests to the University are journalists and the information provided is either never published or is published in articles which do not, in the opinion of the University, generally encourage debate or involvement in University business. In most cases a more productive relationship would come from dialogue, whilst the Act encourages a very precise and mechanistic form of question and response.

What are the strengths and weaknesses of the Freedom of Information Act?

Strengths

10. The University understands and supports the objectives of the Freedom of Information Act 2000 and wishes to be open and transparent. However, it is the experience of the University that the legislation fails to deliver its intentions.

Weaknesses

The University believes that the following weaknesses lie within the Act:

11. Based on statistical evidence from recent years, the University’s opinion is that the greatest weakness in the legislation is that it can be used so readily by journalists fishing for a story because there are minimal resource implications on their part in doing so. If a journalist is unable to get the story they want out of the information they receive—or an exemption is applied to the information—then they will sometimes just submit a request for different information.

12. Our experience is that information—particularly statistics or financial data—is often provided to journalists with explanatory text but this is often ignored or edited when articles are published. As well as having a considerable resource implication for the University for what we believe is a small public benefit, these requests also have a much wider resource implication for the higher education sector. A significant number of requests the University receives from journalists are “round-robins”. Often only the responses from the three or four institutions perceived to best illustrate the story are used, out of twenty or thirty institutions which have had to use resources to respond to the request.

13. Requestors repeatedly fail to search for information themselves. In a significant number of instances the University has had to point requestors to information already publicly available through links in the Publication Scheme, or to information that is published elsewhere already on the University’s website. The public do not need to understand the Act—or related legislation such as the Data Protection Act 1998—or properly consider their requests prior to submission. This places considerable burden on the University to clarify and help re-phrase requests and to provide explanations of the legislation, due to the Section 16 “Duty to provide advice and assistance” requirements of the Act.

14. The University is classed as a public authority under the Act and therefore all of our business activities are subject to the legislation, regardless of the fact that the University currently receives only about a third of its funding from the UK Government.

15. The public are not required to provide or justify their reasons for submitting requests. This makes vexatious or pointless requests too easy to make. Often, where requestors have volunteered their reasons, this has allowed the University to better tailor its response, sometimes respond to the request outside of the legislation and therefore provide more information to the requestor, and help to build a less formal, more productive relationship with the requestor, particularly where the requestor is a member of staff or student.

16. The University is required to spend up to 18 hours working on an information request. The University believes that this is too great as it diverts too much staff time away from core activities, especially when multiple requests are received on similar subjects.

17. The Fees Regulations do not appropriately take in to consideration the true cost of dealing with many FOI (and subject access) requests. The University is obliged to spend many more than 18 hours work on some information requests due to the fact that we are unable to take time spent on reading and redacting information into consideration when calculating the estimated cost of a response. This has placed considerable burden on the central Data Protection and FOI requests service as complex requests often require considerable reading time and subsequent redaction time. The University is not often able to apply the Section 12 exemption “Where cost of compliance exceeds appropriate limit” as information is usually easily located and retrieved.

18. One request received by the University has progressed to internal review then ICO investigation—this has taken up a significant amount of time for administrators and senior managers and if more requests progress in this manner the University will suffer substantial disruption to some core functions.

19. The public’s right to know has too much prominence over the amount of resource that public authorities should reasonably be expected to expend upon responding to information requests. The University’s experience is that the numbers of information requests received have increased dramatically in the 5 years since it began compiling statistics in 2007 (see evidence below).

Year

FOI Requests

Environmental Information Regulations Requests

Subject Access or Other Data Protection Requests

2011

236

0

32

2010

172

0

27

2009

98

0

31

2008

101

1

28

2007

41

0

19

As a result, the University has needed to employ an additional member of staff since 2008 to almost exclusively deal with information requests as the increasing number of requests received made it evident that it required a full time resource. The volume and complexity of information requests received by the University also impacts on the progression of policy, training and guidance work.

Is the Freedom of Information Act operating in the way that it was intended to?

20. The University does not believe that the Act is operating in the way in which was intended for the reasons outlined in paragraphs 11–19 above.

Recommendations

21. Higher education institutions should be removed from Schedule 1 as the legislation is unnecessary. The objectives of the Act could be achieved more effectively in the higher education sector through a code of practice, perhaps including the requirement to develop and maintain a Publication Scheme, and accountability to HEFCE rather than the Information Commissioner’s Office.

22. Should the current legislation remain in force, the University would like to see the introduction of a BBC-type model for the higher education sector, whereby the Act would apply only to those activities which receive public funding (eg science teaching).

23. A research data exemption (in line with FOIA Scotland) should be introduced to reduce burden on higher education institutions, or the publication of publicly-funded research data should be left to the discretion of funding councils rather than decided either through the Act or through the review of refused information requests by the Information Commissioner.

24. A fee should be introduced in line with the £10 charge that can be made for subject access requests to attempt to limit vexatious and repeated requests.

25. A limit should be imposed on the number of public authorities that can be asked to respond to an information request made by the same requestor at the same time on the same subject in order to reduce significant burden upon resources across a sector and also, as a result, upon individual institutions.

26. The Act should require the public to search an institution’s Publication Scheme and perform a reasonable search of its website before submitting an information request in order to reduce the burden on public authorities to spend time formally responding to requests where information is already publicly available.

27. The public should be required to provide an explanation for submitting an information request in order to help the public authority to provide as helpful a response as possible.

28. The amount of time that the University is required to spend on each information request should be reduced because of the continually increasing volume and complexity of requests and attendant increasing burden on resources.

29. The Fees Regulations should be amended to take into consideration reading and redaction activities.

January 2012

Prepared 25th July 2012