Raw, not for consumption

Unpublished research data must be placed beyond the FoI's reach or the academy will suffer, Kevin Schürer warns

April 5, 2012

The Freedom of Information Act 2000 is being used in ways that its creators did not intend, and universities are bearing the cost.

While the act aims to make the functioning of government (and government-funded organisations such as universities) more open, an unintended consequence is that researchers may be forced to hand over unpublished data.

The protection of freedoms bill, now in its final parliamentary stages, takes this a dangerous step further by extending the act to cover sets of research data in electronic form, even where they are incomplete or unverified.

FoI requests are an increasing headache for universities. At my institution, the number of requests has risen from 46 in 2007 to 132 last year, costing an estimated £185,000 in staff time. Furthermore, they are increasingly straying into research areas, and some institutions would say that this has caused problems already. For example, a research group at the University of Oxford spent a year rebutting a request for data from a big nationwide health study, submitted by a company with a significant commercial interest. Oxford incurred hefty legal costs in the process.

My view is that we should exempt from FoI requests clearly defined research data prior to publication, as happens in Scotland. But the Westminster government has so far resisted proposed amendments to the legislation for the rest of the UK. Ministers argue that existing exemptions - for example, on the grounds that the information is going to be published anyway, or where commercial interests might be harmed - are enough to prevent problems.

This is not the case. The exemption relating to future publication only applies to information that is to be published. It does not protect raw research data or the results of analyses that are carried out during the course of the research. In contrast, the research exemption in the FoI (Scotland) Act 2002 applies to all "information obtained in the course of, or derived from, a programme of research". It also applies where disclosure would prejudice the interests of the programme, its participants or the authority, which is much broader than commercial and confidentiality concerns.

In its current form, the bill only makes matters worse by requiring universities to provide access to research datasets "in an electronic form which is capable of re-use". This underestimates how big and complex some datasets can be and the potentially huge expense of translating them into accessible formats - let alone the risk that if they are from ongoing projects they might be incomplete, unchecked and therefore potentially misleading.

I agree that academics cannot expect to sit on data for years without any intention to publish, but the sort of data that inform published research conclusions are made vulnerable by the bill.

The commercial interests exemption is also qualified as it is subject to a "public interest" test. A university can refuse to provide the information only if it believes that the public interest in withholding it outweighs the public interest in disclosing it. The Information Commissioner says there will be occasions where material is released even though it is a trade secret or likely to prejudice someone's commercial interest.

This could put off those considering investing in our universities' research endeavours. A multinational company with £200,000 to spend on medical research may be more inclined to choose an institution in the US than the UK because it does not want to risk commercially important data being made public.

Another risk is that FoI legislation could handicap public universities as they increasingly find themselves in competition for research contracts with private providers. While the public university is subject to the act, the private provider is not.

We need to resolve these issues now and amend the FoI rules. Universities UK and others have submitted evidence to the House of Commons Justice Committee, which is conducting post-legislative scrutiny of the existing law. We can only hope that changes will emerge as a result. Certainly, we cannot allow complacency to damage the competitiveness of our universities.

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