The FoI burden - there are no easy answers

Paul Gibbons says lack of time, money and legal clarity can all affect universities’ responses to FoI Act requests

January 30, 2014

Source: James Fryer

I believe the best way to answer critics is to be more open, but I’m not the one subject to such an intense scrutiny of my work and beliefs

In a recent leader, Times Higher Education’s editor, John Gill, complained that universities’ attitudes towards requests made under the Freedom of Information Act “can seem closer to the view of the hunting ban among red-jacketed, horn-tooting horsemen: something to be got around if at all possible” (“On the q.t. and very hush-hush”, 9 January).

His ire was provoked by the responses (or lack of) to an FoI request the magazine made to 135 higher education institutions in December asking them for statistical information about the requests they had received in the past three years and how many they had refused. Only 56 per cent of institutions responded within the statutory limit of 20 working days and 12 per cent refused the request.

As one of the FoI officers who answered THE’s request (shortly before leaving my post), my immediate response was to point out that its timing in the run-up to Christmas may have contributed to the delays. However, I am assured by THE journalists that a significant minority of institutions regularly fail to respond or refuse requests in ways that seem hard to justify.

In my experience, universities’ attitudes towards FoI are neither as bad as the THE has painted them nor as good as FoI advocates such as myself would like them to be. Jisc’s most recent annual surveys of higher education institutions indicate that requests answered later than 20 working days between 2010 and 2012 made up only 5-8 per cent of the total, and I have worked with people who bent over backwards to ensure that responses met (and often exceeded) requesters’ needs.

But it is not only FoI officers who have to spend time working on requests. Every one that has to be answered takes up the time of staff in the departments about which information is sought, which means less time spent on other tasks. And there were certainly some requests that caused me to groan inwardly because I knew obtaining the relevant information from the department concerned would be as painful as extracting the proverbial blood from a stone. But these were the exceptions.

Nor did colleagues’ occasional antipathy typically reflect an instinct to keep secrets. It is the burden of additional work that causes public sector workers to complain. And with THE reporting a 39 per cent rise in FoI requests between 2011 and 2013, that burden is considerable.

Then there is the perception that a barrage of FoI requests can be punishment for engaging in research on controversial topics such as climate change. I believe the best way to answer critics is to be more open, but I’m not the one subject to such intense scrutiny of my work and beliefs.

THE journalists say that they often get vastly different reactions to the same question from different universities. But just as parish councils sometimes lack the capacity to understand and meet their obligations, there are small institutions whose registrar or equivalent must fulfil FoI obligations alongside a host of other duties; all it takes is a student occupation and answering an FoI request will drop to the nether regions of their “to do” list.

Indeed, even in better resourced universities it is rare for FoI to be someone’s sole responsibility. My job – at Soas, University of London – also included managing compliance with data protection, copyright and records management requirements, as well as handling student complaints and disciplinary proceedings.

That range points to the fact that FoI officers are rarely specialists. Over time, all FoI officers build up a degree of expertise but career progression or retirement can wipe out an institution’s competence in dealing with requests overnight.

Then there is the policy context. One of THE’s complaints is that universities apply the exemption for commercial sensitivity erratically. But the government has promoted a more competitive higher education sector. In such an environment there are complex legal limitations on what information institutions may share with one another lest they come to the attention of the Competition Commission. Hard-pressed FoI officers find themselves having to interpret competition law as well as the act itself, all the time coming under pressure from nervous colleagues. It is perhaps more surprising that any universities release information in these circumstances than that some are overly cautious.

But those working in higher education do need to be more positive about FoI. It is here to stay and it could be better integrated into the way that universities work. Committee papers, for example, could be better designed so that all but the most sensitive details can be published immediately. Contractors could be better prepared for the implications of FoI. And, yes, if FoI officers are clearly struggling then resources need to be reviewed.

Institutions that are open are better placed to identify efficiencies and improvements. And if you want proof of the reputational boost that transparency brings, just think about the almost universally negative public perceptions of organisations – such as many sports governing bodies – that still pursue an emphatically “behind closed doors” approach.

We have come a long way since the act was passed. Taking pride in that progress is the next challenge for FoI officers and university leaders alike.

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