Ten years after its implementation, the Freedom of Information Act (FOIA) looks to be under attack. A Cabinet Office review into the FOIA is currently underway, and the Green Paper proposes that the Act should be removed from the HE sector entirely. With the cost of requests to the sector estimated to be in the region of £10 million per year, this would undoubtedly reduce the burden on institutions, but at what cost? And what does the sector have to say about this?
Under existing legislation, publicly-funded institutions have to respond to a request for information within 20 working days, providing that the information is not sensitive and that it does not take more than 18 hours of staff time to respond to.
However, this could all be about to change. Question 23 of the Green Paper proposes that public body requirements on HEIs, of which FOIA is one, should be removed. The Government’s case is that HEIs are no longer strictly publicly-funded and that the Act places alternative providers, who are not subject to FOI, at an unfair advantage. A cross-party Cabinet Office review is also underway to consider whether changes are needed to balance the public’s need for information against the burden on authorities.
A proposal to review FOI requirements on HEIs was made back in 2011, in a report by Capita for HEBRG. The findings from their consultation found that the majority support removing FOI requirements.
However, publicly, it seems that the sector may be more reluctant to express this view. Looking through the Green Paper responses, some have avoided answering this question by calling for levelling of the playing field. This begs the question of whether you level up or down. Of those who have been more forthright, the Russell Group calls for an exemption arguing that requests have doubled since 2010 and, on top of existing information requirements, presents an unnecessary burden. Taking the middle ground, Universities UK has called for a review of the rules, including reducing the time limit that a request needs to meet in order to be accepted. At the other end of the argument, the Association of Colleges argues that any institution that receives public money, in whatever form, should be subject to FOI; while Million Plus point out that removing FOI requirements simply because alternative providers are not covered would be disproportionate.
Deciding on the fate of the FOIA is by no means an easy task. At a time when public funding is tight, questions around its role and use are justified – particularly when we are seeing other pots of funding, including vital maintenance support, facing cuts. However, the reason for any change must be valid: exempting institutions as a means to level the playing field does not meet the grade. Up until recently, alternative providers were not subject to Key Information Set requirements, but removing this requirement from all providers would never have been dreamt of as a solution. It is also not the case that it is “not public money” which primarily funds universities. Student loans remain heavily subsidised by the state and no UK university has yet been able to show that they could comfortably live without them. Or without research funding, for that matter.
The decision about whether to keep universities subject to FOI should come down to an assessment of the costs versus the benefits. The benefits of policy reforms are rarely easy to quantify. But looking at some of the FOI requests that have been made, it is clear that information has been brought to light that would not have otherwise. Requests have highlighted levels of animal-testing in institutions, funding received from UK arms companies, and trends in student depression in the context of cuts to counselling services. It is also not the case that results are only beneficial to students and the taxpayer. The sector may also benefit where a request highlights problems with Government policy.
There is also the question of what a removal from FOI would do for the sector’s reputation. Research by the Information Commissioner found that 81% of public bodies questioned agreed that the Act had increased the public’s trust in their organisation. If satisfaction is anything to go by, trust in universities is likely to be high. But the HE sector is certainly not known to be the most open. It’s ironic that the proposal to scrap FOI requirements comes in a Green Paper dedicated to increasing transparency, something also noticed by the Higher Education Commission in their latest report, which argues that removing FOI from universities would be a mistake. Big questions also loom over what the impact of a removal of other legislation that relates to public bodies, including equalities legislation, might have. Results from our governance project found that female representation on boards is already pretty low.
The future of the FOIA won’t be known for a few months yet. BIS are currently analysing responses to the Green Paper and the Cabinet Office review is in the process of taking oral evidence, having received over 30,000 submissions. While there may be a case for some level of reform to ensure FOI is not misused, including for commercial purposes, the decision to remove it from HEIs is not one that should be taken lightly.
There is also a problem not mentioned here… To remove universities from FOI would require amendment to the FOI act. Inclusion of these institutions is not done on the basis of a public funding test – they’re written into the act. See https://www.martineve.com/2015/11/10/he-green-paper-response-to-question-23/
Interesting response, thanks for sharing
“The Government’s case is that HEIs are no longer strictly publicly-funded and that the Act places alternative providers, who are not subject to FOI, at an unfair advantage.” Would this argument apply to other areas of activity such as Procurement?
They may not receive public funding in respect of undergraduate fees but they do receive huge sums in respect of research grants. They are also charitable organisations which is financially very beneficial. If Universities truly want to be ‘private’ & therefore exempt them public funds for research and charitable status need to go as well.
Levelling up, FOI should apply to private as to public organisations. Govt’s argument seems to be that as unis are virtually private, grounds of confidentiality should apply to them also. This will apply to everything soon at the rate this govt is going!
I don’t understand why people are hanging this on funding. The principle of FOI is that it applies to organisations carrying out functions that are public in nature. The idea that Universities’ function is not public in nature is as nonsensical as it is horrifying.
Interesting that the government has imposed the so-called ‘Prevent’ duty in the Counter-Terrorism and Security Act 2015 to private sector institutions, but not the FOI Act.
Obviously when it suits them it’s perfectly okay for government to remove the distinction between public and private.