Protection of Freedoms Bill

Baroness Brinton Excerpts

Thursday 12th January 2012 Grand Committee

Moved by

[Baroness Brinton]

151: Clause 100, page 89, line 27, at end insert—
“( ) In section 22 (information intended for future publication) after subsection (1) insert—
“(1A) Information obtained in the course of, or derived from, a programme of research or research project is exempt information if—
(a) the programme or project 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 public authority as defined by section 3 of this Act; 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 or project;(ii) peer review of the programme or project;(iii) the interests of any individual participating in the programme or project;(iv) the interests of the authority which holds the information or the interests of any party collaborating with the authority in connection with the programme or project; or(v) the physical or mental health of any individual.””

[Baroness Brinton]

My Lords, as has already been mentioned, Amendment 151 seeks to insert an entirely new clause designed to correct an anomaly within the Bill. As a matter of principle—and as a former university administrator—I welcome the opportunity to help people get more information from the public sector, as is absolutely their right. However—I am sure it is inadvertent—there is a gaping hole in the Bill regarding universities and their research, research councils and other public research bodies. I am very grateful to the noble Baroness, Lady O’Neill of Bengarve, for her previous amendments, which are most helpful and with which I agree, and I shall not talk specifically about the detail of data sets as a result.

The amendment seeks to amend the Freedom of Information Act 2000 to create a new qualified exemption for pre-publication research. It is modelled on an amendment to the FOI Act in Scotland which was accepted by the Scottish Government during the passage of that legislation. Exemptions with similar effect also exist in Irish and US freedom of information legislation.

The amendment makes clear that it has to be shown that disclosure would result in substantial prejudice to the research, those conducting it or the university, and I believe also—perhaps more seriously—that it threatens the international competitiveness of UK research. This is necessary because at present, taking it at its most simplistic—I hope those with considerable experience of academic research will allow me this hypothetical exemplar—it would be possible for individuals, organisations or, worse, industrial spies to get access to confidential data which may be pre-patent or copyright, part of a commercial research contract, or raw research which may be part of a long project over a number of years, which is not unusual for leading edge research in this country.

I have spoken to the deputy vice chancellor at Cranfield University to make sure that I can give the Committee this hypothetical example. As noble Lords will know, Cranfield has a global reputation for its inspirational teaching and research; 85 per cent of its research submitted for assessment is internationally recognised as original, significant and rigorous, 15 per cent is world leading, and it has won the Queen’s Award on three separate occasions since 2003 for its ground-breaking work. It would argue very strongly that it is that strength that brings commercial businesses to it to contract on very specific work.

Cranfield has a specific expertise in aero and motor research and houses specialist research beds for grand prix racing—not many people know that. Highly confidential and sensitive research is carried out for a number of the world’s top grand prix companies. Under the Bill as proposed at the moment, it would be possible for a competitor to demand data sets which may form part of the meta set of an academic’s broader work from commercial research contracted with one company. This cannot be right.

Like the noble Baroness, Lady Warwick, I particularly thank Universities UK for its helpful and extensive briefing. The guidance for the higher education sector from the Information Commissioner on the FOI Act, to which I will refer in some detail, makes it clear throughout that the legislation is not designed for pure research and the way in which the data are used in universities. Interestingly, there are frequent references in that guidance to the lack of case law in this area for university research.

I am grateful to the Minister, the noble Lord, Lord McNally, for his letter of 23 November in which he set out how he believed the current exemptions under the Bill and in the FOI Act would work for university research. I believe that there is enough evidence from the guidance, as well as experience of universities, to question the points that he has made. The letter of the noble Lord, Lord McNally, refers to the key areas where he believes the current exemptions work. The first is information which is intended for future publication. In section 4.2—Information intended for future publication —the guidance for universities states:

“To be covered by the exemption, the information must be held with the intention of publication at the time the request was made. It will not be permissible to argue an intention to publish the information when that decision was only made after the request was made. It is not, however, necessary to have set a publication date. Publication will often be publication in accordance with the publication scheme of the public authority”.

The FOI guidance goes on to say:

“You may be able to reduce the number of requests for information and the number of times upon which you may need to rely on section 22 by providing the public with a clear description of planned publications, including a publication timetable. … It may also be helpful within publication schemes to indicate the likely date of publication within the description of the class of information. For instance, many public authorities include minutes of management board meetings as a class of information within their publication schemes. It may be helpful to indicate that the minutes will be published within a week, a month etc of the meetings. It may also assist if drafts of documents include intended publication dates and an indication of whether any or all of the information could be released prior to publication”.

It is absolutely clear, especially from that last sentence, that the commissioner is applying what I would describe as an administrative and secretarial approach to publication. It is not common for those engaged in pure research, especially highly confidential leading-edge research, to detail the research for management board meetings, nor is it common to have publication schemes for elements of the work at an early stage. This guidance is much more for the effective conduct of public affairs—for example, Ministers, councillors or civil servants—in collecting data.

The guidance shows absolutely no understanding of the way in which research is carried out. For example, the advice says that you must state at the time—and each time—when you want to use the exemption for future publication and you must prove it. You must then quote each of those instances back when you have received an FOI request. For a longitudinal research project that might last decades, this is a complete nonsense and certainly provides real problems for retrospection. Even for a more standard research project of three to five years, it is not always obvious when collecting data that the data may be something that you want to declare as exempt. I suspect that the commissioner would not be happy if all university research projects developed a policy of exempt declaration at every step of the way just in case they fell foul of the need to prove at the research stage why the information is exempt.

Frankly, there is also a disruption to the work of researchers who have to deal with some of the detailed FOI requests for data. The University of Oxford gave the example of a request for research data from a large nationwide health study submitted by a company with a significant commercial interest in the data.

“The university released some background information but attempted to refuse the bulk of the request by using existing exemptions relating to the cost of compliance, personal data, future publication and prejudice to commercial interest. These were not accepted by the requester. After a drawn out process the company finally wrote to the University saying that it had decided not to pursue the request further at that time (this may have been related to a take-over situation.) Had this not been the case it is understood that it had been strongly implied the requester would have sought a decision from the Information Commissioner. Had the university been ordered to release the data, it is believed that this would have undermined the credibility and sustainability of the research programme and affected future research. The research group had one year of research time disrupted in attempting to rebut the request and the institution incurred significant legal costs”.

Herein lies the nub of the problem. The whole nature of academic research is how widely the information is used, which frequently does not follow a simplistic linear progression of project specification, grant award, research, patents, peer assessment and publication. Even a PhD student working on a project may include some of the data relating to work on their PhD as yet unpublished. Some data sets may be used repeatedly by different academics assessing the information in different ways over a period of many years. A leading academic said to Universities UK,

“If I'm forced to simply hand over work that has taken me decades to produce so that someone else can interpret it without understanding the full background, then I'll refrain from doing it”.

--- Later in debate ---

[Lord Henley]

My Lords, I start by saying that whatever arguments I put forward will not be based on those of the drafting point made by the noble and learned Lord, Lord Scott. However, I take his point that new section (1A)(a)(i) and (ii) are possibly unnecessary as they seem to include everyone. It would therefore be possible to delete the words from “by” onwards and just talk about what is published.

I make it clear to the noble Baroness, Lady Blackstone, and others that the Scottish, Irish and United States legislation have not been my bedside reading for some time. I am not completely and utterly familiar with them but I will no doubt make sure that I am made totally familiar with them and look at the consequences of what they do. An important point to remember in all the arguments put to me is the remark of the noble Baroness, Lady Warwick, that, if it does no harm, the amendment ought to be accepted. I am not sure that one should accept amendments merely because they do no harm. I want to make it clear that we are committed to transparency in this area. We will not introduce new exemptions from disclosure unless the necessity of doing so has been clearly demonstrated.

I recognise that a number of noble Lords have expressed considerable concern. We have devoted almost three-quarters of an hour to this matter. I commend my noble friend Lady Brinton for the admirable brevity with which she set out her case and expressed her concerns. I am aware that there are major concerns in the whole sector about the potential for the disclosure of information under the FOI Act which could undermine the United Kingdom’s academic research. We all accept that the UK is at the very forefront of international research and that it is vital that that position should be maintained. We wish to do that. I am more than happy to see noble Lords between now and Report if they want to make the case for needing to go further and to explain why they believe that the existing exemptions, properly applied, do not provide the appropriate protection.

I am aware that only in January of last year the Science and Technology Committee recommended in its report in relation to events at the University of East Anglia’s climate research unit that the application of the Freedom of Information Act to research material required clarification. There is in fact little evidence to demonstrate that existing provisions within the Freedom of Information Act do not provide adequate protection for research-related information. The circumstances provided for in this amendment are already provided for in existing exemptions. For example, exemptions exist which may be used, subject to a public interest test, to protect information the disclosure of which would at least be likely to prejudice commercial interests, health and safety, and the effective conduct of public affairs, as well as information intended for future publication. There is a clear public interest in protecting research information from disclosure in appropriate circumstances, and the Act passed by the previous Government—and I do not know why the Opposition now wish to amend it when there is no evidence that it needs amendment—is designed to ensure that public interest factors are given proper weight when exemptions are applied. Furthermore, the Act contains provisions protecting information provided in confidence and in relation to personal data.

Any new exemption within the Freedom of Information Act would also have no relevance to research on environmental matters. Requests for environmental information are considered not under the Freedom of Information Act but under the Environmental Information Regulations, and this amendment would not affect those. All information held by the higher education sector, including that relating to research programmes, has been subject to the Freedom of Information Act for seven years. The noble Baroness will remember, as she was probably a member of the Government at the time when it was passed in 2000 and came into effect in 2005. The Freedom of Information provisions within the Bill, in Clauses 100 to 102, build on a regime that is already firmly in place. I know that my noble friend Lady Brinton will be aware that the Information Commissioner has recently issued guidance for the higher education sector in response to the Science and Technology Committee’s recommendations. This is one reason why it is possible that it will not be necessary for me to study the provisions of the Scottish Act, as well as what they are doing in Ireland and America. The guidance will assist higher education establishments in dealing appropriately with requests for research-related information, and withholding it when it would not be in the public interest to disclose.

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. I do not believe that it has been clearly demonstrated, but I am more than happy to see my noble friend and others if she feels that she can put a further case. I repeat to the noble Baroness, Lady Blackstone, and others, that I will study what is happening in Scotland—it is near to my heart. But what goes on in a devolved Administration does not necessarily have to be copied in this country. There are times when we can learn from them and times when we find that what they are doing is not necessarily appropriate. I am more than happy to look at it, but I do not think that a case has been made on this occasion. But my door is always open and I am always prepared to see my noble friend and others to discuss this matter, if they feel that I have not got the message appropriately.

[Baroness Brinton]

I thank the Minister for his comments and for his offer of a meeting, which I think myself and others will be very grateful to accept. I start by saying that in addition to the comments that I made, the comments from everybody else who spoke started to provide the evidence that the Minister was looking for in showing how there are problems with the current arrangements. In defence of the Information Commissioner, can I say to the noble Baroness, Lady Royall, that I have no issue with his guidance, which is based on the FOI Act? One of the key points that I was trying to make was that the FOI Act did not envisage the complexities of university research, which is where the issues have arisen. I know that the UUK briefing, which the Minister mentioned that he had just received, will provide some evidence, and I am sure that UUK and RCUK would be delighted to provide more information on specific cases for the Minister to look at.

I want to pick up the point raised by the noble and learned Lord, Lord Scott, about paragraphs (a)(i) and (a)(ii) of the proposed subsection (1A) of the amendment. As I understand it—and I may be wrong—the key point about the Freedom of Information Act is that the only authorities affected by it are public authorities. That is why it is so specific. Thereafter it refers to individuals because there are individuals who work within those authorities. I would be delighted to be proved wrong but that is the basis on which I understand it. If others with more expertise in drafting want to correct that I would be delighted to concede that point.

We have taken some considerable time on this amendment and the only point I want to consider before we finish is to say that the evidence is clearly there. It is also evident from Scotland, the USA and Ireland that these arrangements are working and working well and I hope the Minister will be able to satisfy himself on those accounts. The key point I want to keep returning to is a very selfish one about the commercial viability of English and Welsh universities. They are now on the back foot compared with Scottish universities. I believe that that is inappropriate. We believe very strongly across the House that we want our universities to be able to succeed in the commercial market that is academic research today. Providing a clearer framework for academics through this clause would do that. It would not endanger transparency and access to freedom of information for people who genuinely need it. This is purely protecting a number of areas where there is a complete muddle at the moment that is beginning to affect how our universities can work effectively in the research market. On that basis, and thanking the Minister for his offer of a meeting, I beg leave to withdraw my amendment.

Amendment 151 withdrawn.