Get ready to show your hand

October 29, 2004

Any idea how much your vice-chancellor spent redecorating their office? Such questions could crop up under the imminent Freedom of Information Act, warns Harriet Swain.

Now where did you put that piece of paper? You know you've got it somewhere, you just can't lay your hands on it at this moment. Well, you're going on a four-month sabbatical to Ulan Bator tomorrow, it'll have to wait until you come back.

I'm afraid it won't. From January 1, when the Freedom of Information Act comes into force, you will have 20 working days to respond to written requests for information. Unless you can argue that the information fits into one of 23 exemption categories, there will be no excuse. Failure to provide it could land your institution in court.

It is no good thinking that you won't be affected. The Act will cover an information request buried deep in an email from a student; it will allow you to find out how much the vice-chancellor has spent on redecorating his or her office; it will mean parents being able to check how many students at your institution have been caught plagiarising. While many universities will have dedicated freedom of information officers, everyone will need to know enough to recognise a freedom of information request, manage their files properly and respond appropriately.

And you can't get out of it by simply throwing stuff away. While the Act stresses the need for regular culling of information after a certain length of time, anyone destroying data after it has been requested could be prosecuted.

Steve Bailey, records manager at the Joint Information Systems Committee, says: "At the very least, all employees need to know that when they receive an inquiry they need to stop, think and do something."

The Act could be serious for those working in controversial research areas such as animal or human embryo experimentation. How far the public's right to know will be balanced by concerns for individual safety will depend on how case law interprets the exemptions.

This is something that concerns Simon Festing, director of public dialogue for the Association of Medical Research Charities. He is worried that lack of guidance on exemptions could put researchers at risk. Also of concern is how important precedent will be. "If one university releases substantial information, will that mean a requirement for others to comply?" he asks.

He is setting up a network of freedom of information officers to share advice on how universities should respond to requests involving animal research. He advises ensuring that university marketing departments are prepared to deal with extra publicity in controversial areas. And he warns that if universities give out information without any effort to explain the benefits of something such as animal experiments, they will be at a disadvantage.

Advice from the National Audit Office suggests that universities try to reduce the volume of requests by proactively releasing information likely to spark interest and by contacting pressure groups to tell them of information already in the public domain.

Des Burley, a solicitor specialising in the Act at law firm Pinsents, warns academics to be wary of dealing with requests themselves, as this could lead to inconsistency. "Pressure groups will keep trying to get hold of information from different sources and if someone else provides the information and the university said no initially, it gives the impression they are trying to cover something up."

Commercial interests may also need to be considered: someone may refuse to fund particular research if the names of the funders are made public, for example. Again, this will depend on how the commercial exemption is applied. Anyone involved in drawing up contracts with commercial bodies, such as accommodation providers or caterers, will also have to wait to see how some of these contracts may need to be redrafted to stop competitors gaining an unfair advantage.

Then there are student complaints. Sue Holmes, chair of the Association of University Administrators, says the full impact of the Act on these is impossible to predict, but since new rights under the Act are being advertised to students as a free service, the fear is that there may be a flood of queries - about, say, marking procedures - and then a flood of associated complaints.

Another tricky legal area is whether copyright should take precedent. Phil Boyd, assistant commissioner at the Information Commissioner's Office, says more advice is being sought on this. So far, the conclusion is that the Patents Act would not prevent disclosure, but anyone receiving the information will have to abide by patent law.

He advises academics to clarify at an early stage whether they or their institution own certain information to avoid making policy on the hoof when a request comes in. Freedom of information officers should also routinely check with their academic colleagues whether they have a commercial interest that needs to be protected, he says.

But he stresses that universities should avoid focusing on reasons not to disclose information. "There is not a general recognition that this is an opportunity," he says, adding, for example, that improved access to information will be a bonus for researchers.

Katherine Gundersen, research officer for the Campaign for Freedom of Information, says universities are likely to receive fewer requests for information the more willing they are to hand it out. And she too extols the benefits of openness. "The more positive they are about freedom of information, the more benefits they will reap in terms of reputation," she says. "When there are so many issues around lack of trust this is a way of restoring that." So you have got that piece of paper somewhere, haven't you?

Further information
www.jisc.ac.uk
www.foi.gov.uk
www.informationcommissioner.gov.uk
www.cfoi.org.uk

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