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New ICO Research and FOI Guidance

New guidance about Freedom of Information (FOI), the Environmental Information Regulations (EIR, an access regime that is similar to FOI, but concerning information about the environment) and research information was released by the Information Commissioner in September 2011.  It is designed to increase awareness and understanding among academics and researchers and to help practitioners to comply with their legal obligations.

Additionally, a paper before Parliament suggests a proposed change to the Freedom of Information Act that would create a new research-related justification under an existing exemption; “Information intended for future publication”.

FOI & EIR Guidance

There are three elements of the new guidance that are particular interest to researchers.

Commercial Information

With regard to the existing exemption relating to the release of commercial information (Section 43, FOI), the ICO recognises that many universities and research institutes work in partnership with third parties and will hold commercially sensitive information. It is accepted that HE institutions may compete with other organisations when tendering for research; they carry out work in partnership with private organisations and there can be a commercial value to research they conduct.

The guidance makes clear that disclosures under FOI should not undermine their ability to do this. If there is a genuine need to protect information from disclosure, it can be refused.

Under the EIR, commercial information can be protected under regulation 12(5)(e); however, four elements have to be satisfied:   

  • Is the information commercial or industrial in nature?
  • Is the information subject to confidentiality provided by law?
  • Is the confidentiality provided to protect a legitimate economic interest?
  • Would the confidentiality be adversely affected by disclosure?

Both the FOI and EIR exemptions are subject to a public interest test, which requires the organisation to weigh up the factors for and against release of the information.

Proactive Disclosure

A number of useful sector led initiatives on openness and research data, such as the Research Councils UK’s Common Principles on Data Policy (“Publicly funded research data are a public good, produced in the public interest, which should be made openly available with as few restrictions as possible in a timely and responsible manner that does not harm intellectual property”) and Economic and Social Research Council’s guidance on data management plans (“Publicly-funded research data are a public good, produced in the public interest [and] should be openly available to the maximum extent possible”) demonstrate an acceptance in making research data available and a commitment to openness and transparency in the sector.

The ICO recommends that HE institutions should do more than they currently do with regard to the publication of background and factual data supporting research wherever possible, particularly once research projects are complete, so that certain categories of research information are consistently available. The ICO accepts that understanding the context of research areas is important and information sharing across disciplines and subject areas will sometimes vary for legitimate reasons – some areas can easily make data freely available as soon as it is produced, others may need to be more restrictive in what information is made available and to whom.

The ICO recommends research policies and strategies should also be published – this will include quality assurance procedures, policy and procedures relating to intellectual property, ethics committee terms of reference, applications and their approval, and any other relevant codes of practice; and any policy, strategy and procedures relating to knowledge transfer and enterprise.

Personal email accounts

The ICO has confirmed that information held on personal email accounts that relates to public authority business can be subject to disclosure under FOI or EIR. When searching for information in response to requests, staff should consider if it is appropriate to ask colleagues if information is held in a personal email account. The ICO recommends that official work is stored on properly secure networks rather than personal email accounts and the University’s Information Handling Policy mandates that University information needs to be stored within approved systems.

Proposed Amendment to the Freedom of Information Act

The Protection of Freedoms Bill, currently before the House of Lords, contains a proposed amendment to the current exemption for Section 22 (Information Intended for Future Publication) that specifically relates to research data.

Effectively, the amendment amounts to “Information obtained in the course of, or derived from, a programme of research or research project is exempt information if the programme or project is continuing with a view to a report of the research (whether or not including a statement of that information) being published by the University or any other person and where disclosure of the information before the date of publication would, or would be likely to prejudice substantially:    

  • the programme or project
  • peer review of the programme or project
  • the interests of any individual participating in the programme or project
  • the interests of the authority which holds the information or the interests of any party collaborating with the authority in connection with the programme or project or
  • the physical or mental health of any individual”

This is a very welcome development, should it be passed. It will mean that HE institutions would be able to pre-empt possible disclosure under FOI at project initiation stage and make appropriate statements demonstrating the likely prejudice to the above factors, thus greatly facilitating the exemption of information from release before it is appropriate to do so.

Posted in Environmental Information Regulations, Freedom of Information.

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