Freedom of Information – why universities are, and should remain, subject

There has been an awful lot of discussion prompted by the recent Higher Education green paper (Higher education: teaching excellence, social mobility and student choice). The majority of this has focused on the major reforms it proposes to the structure of HE; I am not particularly qualified to comment on this, but I recommend Martin Eve’s ongoing series of responses for discussion of the proposals.

There is one bit, however, which I do feel qualified to comment on – because it happens to be exactly the topic on which I wrote my MSc thesis, some ten years ago. This is the proposal that universities should quietly be exempted from the Freedom of Information Act:

There are a number of requirements placed on HEFCE-funded providers which do not apply to alternative providers. Many derive from treating HEFCE-funded providers as ‘public bodies’. This is despite the fact that the income of nearly all of these providers is no longer principally from direct grant and tuition fee income is not treated as public funding. Alternative providers are not treated as public bodies. As a result there is an uneven playing field in terms of costs and responsibilities. For example, the cost to providers of being within the scope of the Freedom of Information Act is estimated at around £10m per year.
In principle, we want to see all higher education providers subject to the same requirements, and wherever possible we are seeking to reduce burdens and deregulate. However we may wish to consider some exceptions to this general rule if it were in the interest of students and the wider public.
Question 23: Do you agree with the proposed deregulatory measures? Please give reasons for your answer, including how the proposals would change the burden on providers. Please quantify the benefits and/or costs where possible.

Unsurprisingly, many universities are delighted with this suggestion – as any public body would be, if told that a little administrative tweak could remove their Freedom of Information obligations. However, the core problem is that FOI does not work this way; these “deregulatory measures” would have to involve amending the original Freedom of Information Act, which the proposal doesn’t quite seem to realise. And an incidental example in question 23 of an unrelated consultation – especially when a different consultation on FOI has just closed – is a fairly limited basis for making such a move!

What follows is a longer version of my intended response – I will condense it somewhat before submitting in January – but comments are welcome.

There are four problems with the specific proposal to remove Higher Education institutions from the scope of the Freedom of Information Act – i) the legal framework is complex, and a “public funds” test is not the sole issue involved; ii) in any case, institutions would remain publicly funded after these changes; iii) removing institutions from the scope of the Act would not produce a “level playing field” either in the UK or internationally; and iv) all these aside, including institutions in the scope of FOI brings a net benefit to the country.

  1. Firstly, the system by which Higher Education institutions become subject to the Freedom of Information Act 2000 is complex, and does not work as described by the proposal. There is no general “public bodies” test as such. Instead, under the Act, HE institutions can become conditionally subject through receiving HEFCE funds (schedule 1, para 53(1)(b)); through being designated as eligible to receive such funds (53(1)(d)); or through being an associated body (eg a constituent college) of any such institution (53(1)(e)). There is no test for the amount or proportion of income represented by this funding, so the note in para 17 of the proposal that “…the income of nearly all of these providers is no longer principally from direct grant” is moot.
  2. In addition, however, any institution operating within the Further Education sector is automatically subject to the Act (53(1)(a)) as is any institution operated by a Higher Education Corporation (53(1)(c)). These provisions are not conditional and are not affected by their sources of funding. Were all public funds of all kinds to be withdrawn overnight, the Act as it exists would still leave any HEC explicitly subject to FOI.
  3. This sits strangely alongside the general thrust of this section, which is structured around increasing the powers and capabilities of HECs. Removing the link between FOI and HEFCE would exempt one group (predominantly older and more influential institutions) while leaving the other entirely subject to the Act. For example, the University of Oxford would be exempt, but Oxford Brookes University would not. The alternative would be to remove all HE institutions, including HECs, from the scope of the Act – but this is not a proposal raised in the consultation, which has chosen to focus on the argument that public funds are the main driver for FOI applicability.
  4. This leads into the second point, the definition of “public funds”. If we were to accept the position that “public funds” is the key test to determine FOI applicability, it is clear that there would still be substantial public monies channeled into the higher education system after the effects of the ongoing reforms. Tuition fees, though notionally private payments, are supported by a publicly-organised loan scheme. The public purse will underwrite the loans that are used to fund tuition fees, and make good losses that arise through long-term defaults or writedowns. It is hard to see this as devoid of public involvement.
  5. Meanwhile, the broad outline of public research funding will not substantially change. The government has committed to maintaining the dual support system, and while the review is consulting on how best this can be structured (see eg Questions 24 and 25) it is clear that institutions will continue to receive income in a similar form, from a body which has taken over the existing HEFCE research funding role. This is undeniably public funds, and – importantly – as it currently comes through HEFCE, it would trigger the FOI applicability requirements even were tuition costs to vanish entirely from consideration. Funding from the research councils is also substantial, and again comes from public sources.
  6. There are also other non-trivial (though relatively smaller) sources of public income for HEIs, including grants for providing FE courses, public sector capital spending, income from NHS trusts or local authorities, etc. While perhaps not enough to constitute public funding in and of themselves, they do support the position that, broadly speaking, these institutions remain publicly funded despite the question of tuition fees.
  7. Thirdly, the consultation raised concerns about a “level playing field” among institutions. If HEIs were to be removed wholesale from the 2000 Act, it might or might not materially affect the FOI status of Welsh or Northern Irish universities (who would be covered by a change to the 2000 Act, but have different funding systems), but could not affect the FOI status of Scottish universities (controlled by the Freedom of Information Act (Scotland) 2002) – leading inexorably back to an unequal playing field across the UK.
  8. Internationally, there are similar problems. The position that “public” but not “private” universities should be subject to Freedom of Information regulations is a widely accepted principle across a range of countries, ranging from Bulgaria to New Zealand. In 2005, I carried out a study which identified that in 67 countries with FOI-type legislation, 39 included public universities in the scope of the legislation, 27 were unclear, and only one explicitly excluded them – and this one was planning to extend the scope of the law. In the majority of jurisdictions, private universities were not covered, though some countries extended limited FOI powers to certain aspects of their work. Under any reasonable definition, the existing “public” British universities will remain quasi-public institutions. They will continue to receive public funds through various channels, and to be heavily influenced by government policy. If asked, the architects of these proposed reforms would no doubt – emphatically and repeatedly – state that they do not consider it a privatisation, and the university governing bodies would agree. Given this, withdrawing their FOI compliance requirement would be unusual; it would place them in a different legal position to most of their overseas counterparts.
  9. Finally, applying Freedom of Information laws to universities is, and will remain, a net good. The cost to the sector – ultimately borne by the public purse – is minor in comparison to the benefits from transparency and efficiency that FOI can bring. This is true for universities as much as it is for other sectors.
  10. From a national perspective, these bodies are responsible for spending several billion pounds of public money, and for implementing substantial portions of the government’s policies not just on education, but on issues as varied as social inclusion, visitor visas, and industrial development. All of these are matters of substantial public interest. On an individual basis, these bodies can have remarkably broad powers. They regulate employment, housing, and substantial portions of daily life for hundreds of thousands of people. In areas with a very high student population, they can have an impact on their local communities rivalling that of the council! The benefits from public awareness and oversight of these roles is substantial.
  11. One concern raised by universities is that these requests pose a heavy burden on the sector and are often frivolous. It is worth considering some numbers here. In 2013 (a year with a “huge increase” in FOI requests), surveyed institutions received an average of 184 submissions; across the 160 universities in the country (including Scotland), this would suggest a total of around 30,000 submissions. 93% of these queries were handled in good time. 54.4% were disclosed in full, 24.3% were provided in part, and just 8.5% were fully withheld. Only 6.6% were rejected as the information was not held by the institution, and 0.3% rejected as vexatious. The remainder were withdrawn, still in progress, or of unclear status. 1.1% of rejected or partially filled requests prompted a request for an internal review, and slightly over half of these were upheld. Only 0.1% were referred to an external appeal (the Information Commissioner) and exactly half of these were upheld.
  12. These figures suggest that the universities are dealing with their FOI requirements cleanly, sensibly, and in good order – probably better than many other public bodies, and credit to them for it. It does not bear signs of a looming catastrophe. Institutions are disclosing information they are asked for in more than three quarters of cases, indicating that it is material that can and should be publicly available, but has so far required the use of FOI legislation to obtain it. They are not dealing with a substantial number of frivolous requests (in this sample, an average of just five requests per university per year were declined as vexatious or repeated). And, when their actions are challenged and reviewed, the decisions indicate that institutions are striking a reasonable balance between caution and disclosure, and that the enquiries are often reasonable and justified.
  13. It is certainly the case that implementing FOI can be expensive. However, all good records management practice will cost more money than simply ignoring the problem! It is likely that a substantial proportion of the costs currently considered as “FOI compliance” would be required, in any case, to handle compliance with other legislation – such as the Data Protection Act or the Environmental Information Regulations – or to handle routine internal records management work. The quoted figure of £10m per year compliance costs should, thus, be considered with a certain caution – a substantial amount of this money would likely be spent as business as usual without FOI.
  14. FOI has an unusual position here in that it can be dealt with pre-emptively, by transitioning to a policy of routine publication of information that would be routinely disclosed, and by empowering staff to deal with many non-controversial requests for information as “business as usual” rather than referring them for internal FOI review. For example, it is noticeable that the majority of FOI enquiries relate to “student issues and numbers”. A substantial proportion of these relate to admission statistics, and similar topics; this is information that could easily be routinely and uncontroversially published without waiting for a request, reviewing the request, discussing it internally, and then agreeing to publish.
  15. In conclusion, this proposal i) cannot work as planned; ii) is based on a tenuous and restrictive interpretation of what constitutes a public body; iii) if implemented, will affect some institutions substantially more than it does others; and iv) is, in any case, undesirable as a policy, and would be unlikely to lead to significant savings.
  16. Should a “level playing field” be desired, a far more equitable solution would be to consider extending the scope of the Act to encompass the “private” HE institutions, perhaps in a more limited fashion appropriate to their status. The driving factors which make robust freedom of information regulations important for “public” institutions are no less valid for “private” ones; they carry out a similar quasi-public role and, especially from a student perspective, it seems unreasonable for them to have reduced rights simply due to the legal status of their university. Partially extending the legislation to cover private institutions would be unusual, but not unprecedented, by international standards.

The fifteen, twenty, thirty-year rules

The government has published its response (PDF) to the review of the 30-year rule.

The rule itself is a bit of a historical oddity – a blanket rule saying that government records should be opened after thirty years is a hangover from before the “on-demand” FOI Act, where you can apply for material regardless of its age. However, it survives in Part VI of the legislation; any record is deemed a “historic record” at thirty years after creation, and as such loses a lot of its ability to be exempt from disclosure. A document which was originally kept secret because of commercial confidentiality, for example, loses this exemption after thirty years.

The review recommended reducing this to fifteen years; the government response has advised twenty. In Scotland, which is subject to a similar but not quite identical piece of devolved legislation, the time limit has recently been dropped directly to fifteen years, in three tranches, with full release being completed by later this year.

The counterproposals are, on the whole, sensible. Other than the fifteen/twenty year change…

  • The thirty-year rule will remain for a set of material: anything commercially confidential, anything sensitive touching on the devolved administrations, and the “effective conduct of public affairs” clause. It’s a little vaguely worded, and this worries me that in the eventual legislation we may find a much more flexible (ie, long) term for some material. How long is the average PFI contract for, for example?
  • The new system will be phased in a year at a time – so, for example, we would release records from 1981 and 1982 in 2011, then 1983 and 1984 in 2012, letting the threshold creep steadily down to 20 years. This is in contrast to Scotland, which tried to clear the backlog in a couple of years – but then, it’s a bigger problem.
  • There is to be a presumption in favour of anonymity for civil servants; names in records released as historical documents will be redacted unless decided otherwise or they’re very prominent.
  • The legal position of communications with the monarch is to be clarified; records will be absolutely exempt for twenty years, or five years after their death, whichever is the longer. This also applies to the heir and the second-in-line to the throne, but all other members of the Royal Family have a qualified exemption – they’re presumed closed, but can be released under request.

On the whole, good things. I’m moderately concerned by the alterations to the commercial confidentiality clause – by the time this report turns into a statute, that looks like it may drift into actually making things worse than the current state of affairs – but it is, to mangle the old quote, currently moving in the direction of goodness. The anonymity proposals I am not sure about – there are good reasons for it, but there are also serious impracticalities, especially from a historical perspective. The amount of redaction appropriate at the twenty-year mark may well not be the same as the amount appropriate a hundred years on, but if we only have the one point of release, we’ll be stuck with whatever decisions were made at that point. Hmm.

Some details emerge from the report that reflect things which’re already happening. The government has formally clarified that “special advisors” are indeed legally civil servants, and subject to the provisions of the Act; they’re also grinding slowly forward with making a number of additional bodies, including UCAS and the legally ambivalent academy schools, subject to the Act.

So, twenty versus fifteen. This is an interesting debate.

A key part of the philosophy behind the thirty-year-rule is to avoid governmental records being turned into political ammunition, and relatedly to reassure the authors that they don’t have to keep material off the record for fear of it later being used against them. (It’s assumed that once you’re retired or dead you can live with the opprobrium.) The main example of this is ministerial papers, but from this standpoint, fifteen years is often just a little too short – it would have meant, for example, that papers relating to Callaghan as Chancellor (1964) got released when he was Prime Minister (1979), and in the event Brown wins the coming election, he’d have the same issue.

The current government will have lasted fourteen years, almost at that threshold, and the previous one eighteen – it’s true that no-one held senior office through the Conservative period, but it does demonstrate how prolonged a spell in power can be. If the modern trend is to parties holding power for long periods with occasional grand shifts, which it may well be, twenty years is a little safer; it also covers for the rare case of someone, like William Hague, whose ministerial career seems likely to bracket one of the prolonged spells of opposition.

There’s also a good case to be made that for politically touchy material like, say, Brown’s records from the early chancellorship, it wouldn’t be released regardless of the threshold, due to the section 36 exemption, likely to prejudice the conduct of public affairs. But a fifteen year rule would imply the time and expense of specially auditing an entire tranche worth of departmental and cabinet records to decide if they’re sufficiently sensitive to be restricted, then doing it again a couple of years later once the person in question is out of office in order to clear them for publication. The extra few years would, presumably, sharply cut down the number of such cases; is it a worthwhile payoff from an efficiency standpoint?

I am ambivalent on this one, I admit.

In the Scottish context, of course, this is currently academic. Holyrood is not overly concerned with the prospect of a former Scottish Secretary looking a little silly, and there won’t be any Scottish Executive (as was) records released until well into the coming decade. On current form, it seems likely that with the less monolithic nature of devolved politics we’ll have shorter ministerial tenures, as well, and thus less need for the extra few years.

We shall see. It’s an unfortunately timed announcement, coming as it does just before an election, but hopefully whoever gets in will pick up the ball and run with it. It’s not something either side would particularly benefit from more or less than the other, after all – they all have ticking skeletons in the closet waiting for the cabinet papers to be released.