Research intelligence - Is early light from FoI just too bright?

UUK seeks exemption for research data as MPs and Lords debate Act's impact. David Matthews reports

February 16, 2012

Credit: Science Photo Library
Not ready for distribution: UUK fears that the Freedom of Information Act could force the premature release of research data and harm commercial and scientific prospects

Tony Blair called himself a "naive, foolish, irresponsible nincompoop" in his memoirs for introducing the Freedom of Information Act in 2000, fearing that it stifled frank, confidential discussion in government.

The wisdom of the Act is currently being debated by both houses of Parliament.

Universities UK has said that it is strongly in favour of transparency and openness in public bodies. But, like the former prime minister, it has concerns about the Act's potential unforeseen consequences, including scholars scooping others' pre-publication research data.

UUK is lobbying parliamentarians to amend the Act by adding a new clause specifically exempting research data from release before findings have been published, as is the case in Scotland.

Vivienne Stern, head of political affairs at Universities UK, said the current Act is not watertight enough to stop "premature" release of data before research is published, and this could cause three major headaches.

The first is the risk that research would be scooped by other scholars, leaving those who collected the raw data beaten to publication by rivals.

"If your findings are already in the public domain, getting them published in a journal will be difficult," Ms Stern said.

As researchers and universities rely on peer-reviewed articles for funding and reputation, this could remove the incentive for research.

The second fear is that companies could access early-stage - but still commercially useful - research by universities and their business rivals before patents can be taken out.

A third concern raised by UUK is that it is impossible to be sure how data will be used if it is released prior to analysis and peer review.

The premature release of medical research data that has not been thoroughly checked or peer-reviewed could even lead people to "mis-treat themselves" on the basis of flawed conclusions, Ms Stern argued.

The researchers who produced the data could also "be drawn into a public debate about the validity of their research without having been able to check (the data)," she said.

However, critics of UUK's position say a new exemption would be superfluous. The Act already exempts information that will be published "at some future date, whether determined or not" or would "prejudice the commercial interests of any person", subject to public interest tests.

Paul Gibbons, a university FoI officer and a blogger on FoI issues, has written that "UUK are campaigning for an exemption that nobody needs".

"Adding another one - even a completely useless one - just sends out the wrong signal" about universities' attitude to FoI, he argued.

In other words, much of the argument hinges on whether existing exemptions are watertight or not.

The commercial exemption is not clear-cut, Ms Stern said. Early-stage research may be too hypothetical to be classed as commercially sensitive, but could still suggest fruitful areas for further study and thus be of value to rivals.

Adam Tickell, pro vice-chancellor for research and knowledge transfer at the University of Birmingham, said patents were often taken out by UK businesses before their research was published in collaboration with universities.

If data were routinely released before publication, these patents could be taken out anywhere in the world.

"Effectively what we would be doing is subsidising the competitiveness of other countries," he said.

As for information to be published at a later date, Mr Gibbons has pointed out that only three rulings have been made by the Information Commissioner's Office - which rules on disputes about the Act - in cases where universities have used the existing exemptions.

In one, the University of Liverpool successfully refused an FoI request to access a privately funded PhD thesis that was due to be published as a book.

The ICO ruled that as a publication date had been set, and early publication could do damage to the commercial interests of the author and publisher, Liverpool was right to deny the request.

UUK acknowledges that there are few rulings that indicate how long the ICO would think was reasonable for a researcher to keep data private before publishing. It could potentially decide on different time limits depending on the field of study.

But UUK says the ICO stated during a research workshop last year that delays of months or years were "unlikely to be considered favourably".

"Commissioners and ministers say: show us the evidence," Ms Stern said. "But this is something that is only [just] becoming apparent."

There is anecdotal evidence of universities being hit by a "raft" of FoI requests for research, she added, although she acknowledged that they account for only 2 to 3 per cent of all requests received.

Trains of thought hard to schedule

If the ICO rules on how long it is reasonable to wait to turn raw data into a finished paper, this raises the prospect of external deadlines for scholars to interpret their research.

Such a demand would be antithetical to how research works, said Valerie Beral, professor of epidemiology at the University of Oxford. Information is not understood with the same predictability "that trains arrive at Paddington", she said.

Asked whether opening up data sets to all researchers might speed up publication, Professor Beral said this might also lead to premature results, as scholars felt pressure to conclude before competitors.

UUK's argument also assumes that some scholars may be unscrupulous enough to request data under FoI, interpret it and scoop a peer by publishing their findings first.

Ms Stern said that although UUK expected British researchers to have high ethical standards, once data were in the public domain, they "would be open to anyone (including those outside the university sector, or internationally) to exploit".

If data were published under the Act, "you could draw on someone else's work quite legitimately to inform your own work, even though they had not yet had a chance to publish - so you could 'scoop' the original research", she explained.

The Lords were scheduled this week to discuss amendments to the Protection of Freedoms Bill, which has the potential to amend the Act.

The UUK amendment would exempt data if it prejudiced, for example, "the programme or project", the "peer review of the programme or project", the "interests of any individual participating in the programme or project" or the "interests of any party collaborating" with the project.

At the time of going to press it was understood that the government would not accept UUK's amendment.

UUK will continue to call for a new exemption as the Commons Justice Committee conducts an inquiry into the impact of the Act. The select committee is expected to present its findings and recommendations to the government before the summer.

More broadly, because the proportion of public funding to universities has fallen since the introduction of the Act in 2000, this makes the definition of universities in the Act as public authorities "all the more strange", UUK argues.

For Mr Gibbons, this observation is illustrative of a more fundamental problem with UUK's attitude to FoI requests.

"Even with the current reforms to higher education, they [universities] will still be receiving a large proportion of funding, one way or another, from the public sector. The mechanisms may be changing, but ultimately they're still, and will continue to be, public bodies," he said.

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