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New Research Exemption for FOIA

One item of particular interest to the HE sector in the Queen’s Speech relates to the proposal for a new FOIA exemption for research intended for future publication, contained within the Intellectual Property Bill.

The Bill as introduced can be found here: http://www.publications.parliament.uk/pa/bills/lbill/2013-2014/0005/lbill_2013-20140005_en_1.htm. The relevant section is S19 in Part 3. It states:

19 Freedom of information: exemption for research

After section 22 of the Freedom of Information Act 2000, insert—

“22A Research

(1) Information obtained in the course of, or derived from, a programme of research is exempt information if—

(a) the programme is continuing with a view to the publication, by a public authority or any other person, of a report of the research (whether or not including a statement of that information), and

(b) disclosure of the information under this Act before the date of publication would, or would be likely to, prejudice—

(i) the programme,

(ii) the interests of any individual participating in the programme,

(iii) the interests of the authority which holds the information, or

(iv) the interests of the authority mentioned in paragraph (a) (if it is a different authority from that which holds the information).

(2) The duty to confirm or deny does not arise in relation to information which is (or if it were held by the public authority would be) exempt information by virtue of subsection (1) if, or to the extent that, compliance with section 1(1)(a) would, or would be likely to, prejudice any of the matters mentioned in subsection (1)(b).”

To try and pick that apart a bit, the first thing this says is that the exemption would only be engaged if there is a prior stated intention to publish. If you have not intended to publish prior to receiving the FOIA request for the information, you cannot then employ this as an exemption.

Publishing may not necessarily mean publishing in the usual sense of the word. The ICO’s guidance on the exemption under S21 (information intended for future publication) reads as follows:

Publication is often understood to indicate that the information will be made available in a form that can be reproduced or circulated, for example in print or online. However, it is not restricted to making the information available in this way. It would also include making it available on inspection or, in some circumstances through speech. Information in picture form will be covered if the picture is to be made available through public display. Notes made in preparation of a speech will be covered if the speech is to be publicly broadcast. What is important is that the intention is to make the information available to the general public.

Secondly, it requires that the release of the information would prejudice either the research or the interests of the researchers, the researcher’s institution or any other public authority. This prejudice must be real. Prejudice is a difficult concept. The ICO has a guidance note available here: ico.org.uk/~/media/documents/library/Fre…specialist_guides/the_prejudice_test.pdf

The test of prejudice involves several steps, as outlined in the above document from the ICO:

  •  Identify the applicable interests within the relevant exemption.
  • Identify the nature of the prejudice. This means that the public authority must:
    • Show that the prejudice claimed is real, actual or of substance; and
    • Show that there is a causal link between the disclosure and the prejudice claimed.
  • Decide on the likelihood of the prejudice occurring. This means deciding whether the prejudice would or would be likely to occur.
    • ‘Would’ and ‘would be likely’ imply different levels of likelihood.
    • Where a public authority has not specified the level of likelihood, and in the absence of clear evidence to the contrary, the Commissioner will consider that ‘would be likely’ applies.

So, it may not necessarily be simple to demonstrate that the exemption is engaged.

Finally, the exemption allows us to “neither confirm nor deny” any relevant information is held if that prejudice can be demonstrated – however, it does not compel us to do so – we may be happy to confirm the information exists, but refuse to supply it.

This exemption has been lobbied for by UUK and many other organisations, and is broadly welcomed, however, it is entirely likely that until it receives royal assent and until the ICO issues guidance, the nuances may not be entirely apparent. There are some dissenting views on the likely usefulness of such an exemption, such as FOIMan’s post here: www.foiman.com/archives/456

What I would say is that this demonstrates the importance of stating the intention to publish in research plans as early as possible, and this cannot be too vague, either. “Some time in the future” will not wash – it must be as specific as possible.

Posted in Freedom of Information.

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