Protection of Freedoms Bill

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””." The second area to which the letter of the noble Lord, Lord McNally, of 23 November refers is the exemption for commercially sensitive and confidential information. The commissioner’s guidance says, in section 3.3 that, "““under section 41 FOIA, the legislation can offer some protection for information that is obtained in confidence from third parties””." ““Some”” is the right word. It is not universal, nor, indeed, is it clear. Again, the wording of the Act is based on a transaction more akin to the sale of goods rather than recognising that the confidentiality of data may also be important for a wide range of other reasons that are critical for the researcher, their department and their university’s reputation and future, none of which may be satisfied by a single date of publication. The commissioner’s guidance states: "““The ICO expects public authorities to consult with affected third parties, in line with the Part IV of the section 45 Code of Practice; however, while the views of third parties are important, they will not be automatically accepted so as to mean that commercial companies involved with public authorities can veto the FOI process. It is accepted that HEIs will often compete with other organisations when tendering for research; they carry out work in partnership with private organisations and there can be a commercial value to research they conduct. Under the EIR, commercial information can be protected under regulation 12(5)(e); however, four elements have to be satisfied: Is the information commercial or industrial in nature; is the information subject to confidentiality provided by law; is the confidentiality provided to protect a legitimate economic interest; would the confidentiality be adversely affected by disclosure?””." Many universities work in partnership with third parties and will hold commercially sensitive information. The guidance makes it clear that FOI should not undermine their ability to do this. However, in order to decline to release information under Section 43, universities would have to demonstrate both that disclosure would prejudice their commercial interests and that such prejudice would outweigh the public interest in disclosure. Since the Section 43 exemption is conditional, researchers and universities planning to work with commercial partners must address the issues of confidentiality and commercial sensitivity at the outset. Universities report that concerns about FOI led to four years of negotiation before an agreement was reached between a university and an industrial partner. These issues may be especially difficult to resolve with international partners operating under different legal systems. There remains a risk that FOIA as it currently applies to research and higher education will undermine commercial partners’ confidence in the higher education sector’s ability to work productively with them. Universities UK has said—I agree with it—that this cannot be in the best interests of the UK economy, especially given the current need to stimulate growth. Neither do they believe that this difficulty was predicted by Parliament during the original passage of the FOIA. One researcher said: "““I can clearly only talk authoritatively about my own field—which is researching energy use in building and systems—but the time taken to establish research datasets and, more importantly, the trust of the people supplying a lot of the data can run into decades. A lot of this data is commercially sensitive and can even have security implications for the people supplying it. There are currently few legal protections in place on this data as trust has been built up and not betrayed over this time, which has allowed the data to underpin a lot of research now being used to set policy at the highest levels in Europe. If there is the slightest hint that this information can be used directly by competitors or commercial concerns to make money from, then this data will become either too costly, or worse, impossible to obtain””." This would be devastating to the first-class nature of the research at our universities, which are rightly regarded as world leaders in research in many fields. The other exemption widely quoted is that of prejudice to the effective conduct of public affairs in Section 36 of the FOIA. Even the Information Commissioner acknowledges in his guidance that the lack of case law is problematic. Helpfully, the environmental information regulations include protection for, "““material which is still in the course of completion, to unfinished documents or to incomplete data””," and when, "““the request involves the disclosure of internal communications””." I believe that similar protection should be available under the FOI Act. Most interesting to your Lordships' House is the evidence from elsewhere. I mentioned earlier the legislation in the Scottish Parliament. Universities and those seeking information are now benefitting from the clarity that those exemptions bring. In the United States of America, also a leading nation in first-class research, universities have been given exemptions along the lines proposed here, as have universities in Ireland. The Irish legislation is helpful in setting out the issue. It states: "““A head may refuse to grant a request under section 7 if, in the opinion of the head … the record concerned contains information in relation to research being or to be carried out by or on behalf of a public body and disclosure of the information or its disclosure before the completion of the research would be likely to expose ""the body, any person who is or will be carrying out the research on behalf of the body or the subject matter of the research to serious disadvantage””." Even in this country, Sir Muir Russell’s review following the disgraceful attack on the University of East Anglia’s climate change data—where e-mails were stolen, as the noble Lord, Lord May, has said—notes: "““There is extensive confusion and unease within the academic community as to exactly how FoIA/EIR should be applied in terms of the materials developed during a research process. The Review believes that all data, metadata and codes necessary to allow independent replication of results should be provident concurrent with peer-reviewed publication. However the situation regarding supporting materials such as early drafts, correspondence with research colleagues and working documents is widely regarded as unclear. The American experience is instructive here. The so called ‘Shelby Amendment’ in 1998 directed the US ‘Office of Management & Budget (OMB)’ to produce new standards requiring all data produced under Federally funded research to be made available under the US Freedom of Information Act. This resulted in great concern within the US Scientific community, expressed through Congressional testimony, that a very broad interpretation of this requirement could seriously impair scientific research and collaboration. In the final OMB guidelines, recognising these concerns, ‘research data’ is defined as: ‘the recorded factual material commonly accepted in the scientific community as necessary to validate research findings, but not any of the following: preliminary analyses, drafts of scientific papers, plans for future research, peer reviews, or communications with colleagues’. The Review recommends that the ICO should hold consultations on a similar distinction for the UK FoIA/EIR””." Muir concludes: "““The Review recommends that the ICO should hold consultations on a similar distinction for UK FoIA/EIR””." Sir Muir Russell believes that we should follow the example of the Americans. The FOI commissioner states in his guidance that there is no case law in this difficult area for university research and often draws parallels with inappropriate administrative functions not helpful for research. More than that, the noble and learned Lord, Lord Wallace of Tankerness, took legislation, on which this legislation is based, through the Scottish Parliament and by general consensus it is deemed to have been very helpful for universities, those applying for FOI and those regulating FOI north of the border. I hope that the Minister will be able to consider accepting this amendment, which would have the real benefit of equalising the position across the United Kingdom. More importantly, it would provide an unequivocal, clear framework for our academics and universities to work within. That will also give confidence to commercial organisations working with them and will ensure that UK research remains globally excellent. I beg to move.