Decision Notices FOI

Recent Decision Notices from the Information Commissioner's Office in relation to the Freedom of Information Act 2000

The University of Central Lancashire – 30th March, 2009

A request was made for copies of the course materials (including course notes, PowerPoint presentations and textbook lists) relating to an undergraduate course in Homeopathy. The University refused the request citing a number of exemptions. The decision of the Information Commissioner raises some concerns as to the future application of some of the exemptions fr Universities.

Exemptions used:-

Section 21 – The information is reasonably accessible to the applicant by other means

The University claimed that the applicant could access the course materials by payment of the tuition fees. The three years tuition fees would amount to £9,345 and so the Information Commissioner felt that payment of such an amount would not constitute ‘reasonably accessible’ in terms of what the Freedom of Information Act envisages. It found the exemption was incorrectly applied. The Information Commissioner then went on to state that the payment of fee is not just for the course notes, but for the qualification attained by successful completion of the course. More worryingly, the Information Commissioner stated that the University ‘does not have a commercial interest’ in the provision of higher education and so the course materials would not constitute commercial information.

Section 41 – Confidential Information

The Information Commissioner felt that the case studies contained in the course materials, whilst anonymised could still be described as patient’s medial records provided to an individual in a position of trust as the consent was given to the lecturer for teaching and research. Therefore the exemption could be used for such case studies.

Section 43 – Prejudice to the Commercial Interests of Any Person

The University argued that disclosure would “likely to prejudice the University’s position in what is a competitive market for student recruitment…loss of student income would have a deleterious effect on the University’s finances and ability to resource its existing and future operations”.

The Information Commissioner made a strong statement, which may affect the ability of Universities to use this exemption in the future. The Information Commissioner stated:-

“While a University may have a financial interest in the provision of higher education, the Commissioner is not persuaded that it also has a ‘commercial interest’ as envisaged by section 43(2). In providing higher education, its survival is not dependant on the ability to generate its own funding and therefore the need to be commercially competitive is not a paramount consideration in the sense one would expect of a privately funded organisation.” It went on to say, “the public authority is, broadly speaking, not a profit making organisation, the provision of higher education as a public service (albeit for a fee) is its underlying motive”. In reaching this conclusion the Information Commissioner looked at the funding the University received from HEFCE and the fact that there was no requirement to for students to pay their fees in advance.

Therefore the Information Commissioner said this exemption could not be applied in relation to this request. It will be interesting to see how subsequent University decisions will be made where section 43 is used – in particular in relation to research. Will the Information Commissioner allow the exemption to be used for University research generally, or will it require the distinction to be made between publicly funded research and that funded solely by third parties?

The University also argued that the release of information in such a way would affect their intellectual property rights by the risk of widespread unauthorised copying and such release of intellectual property rights would not be in the public interest. The Information Commissioner dismissed this claim stating that the materials would still be subject to copyright protection and the University could still prevent unauthorized use of the material by, for example a competitor. They made no distinction between the disclosure of materials to students enrolled on the course and the occasional Freedom of Information request.

The Information Commissioner also stated that the disclosure of information as requested under this case would not prejudice the University’s ability to recruit students.

Section 36 – Prejudice the Effective Conduct of Public Affairs

This exemption must be given by the Qualified Person at the University, being the Vice Chancellor and must show that the release of information is likely to inhibit the free and frank provision of advice and/or exchange of views within the University.

The University claimed that in allowing the release of such information as requested, it would in effect open the floodgates to a number of other Freedom of Information requests for material relating to other courses. Any increase to this type o request would cause “substantial… continuous or disproportionate interruption and disruption” to the University.

The University was criticised by the Information Commissioner for failing to release information showing the submissions that were made to the Vice Chancellor in allowing the Vice Chancellor to reach his objective opinion - it was felt that the Information Commissioner needed to see this information in order to assess the reasonableness of the Vice Chancellor’s opinion. This was one of the factors why the Information Commissioner refused to allow the exemption to be used in relation to the request for information.

The Information Commissioner also said that the use of this exemption would need to show that the release of information would be so disruptive as to prevent the University in offering an effective public service. No evidence to this effect was provided by the University.

In conclusion, the University was required to disclose the course material. It was permitted to withhold the case studies on the grounds of patient confidentiality.