Should universities be exempted from FOI?
Among the many interesting proposals for “levelling the playing field” between current HE institutions and new entrants into the sector contained in the Green Paper (and there are quite a few) one in particular caught my eye:
Public body requirements
17.There are a number of requirements placed on HEFCE-funded providers which do not apply to alternative providers. Many derive from treating HEFCE-funded providers as‘public bodies’.This is despite the fact that the income of nearly all of these providers is no longer principally from direct grant and tuition fee income is not treated as public funding. Alternative providers are not treated as public bodies. As a result there is an uneven playing field in terms of costs and responsibilities. For example, the cost to providers of being within the scope of the Freedom of Information Act is estimated at around £10m per year.
18. In principle, we want to see all higher education providers subject to the same requirements, and wherever possible we are seeking to reduce burdens and deregulate. However we may wish to consider some exceptions to this general rule if it were in the interest of students and the wider public.
For me this is a bright spot. The one thing in there which genuinely looks to be a reduction in the regulatory burden for universities. Although the rhetoric is of freeing up this and levelling that, the reality is that the Green Paper represents an extension of regulation not a reduction. With this one exception of the possible removal of universities from the terms of the FOIA. Whilst I’m not sure that the rationale for it – levelling the playing field for all providers – is really the right one in this case, it is a welcome proposal nevertheless.
Now I know that this view isn’t a popular one and that many think that the only way to hold what they believe to be otherwise secretive institutions to account is to subject them to the fair and open rigours of FOI. But really, no. Universities are not like that. They aren’t establishing shell companies in the British Virgin Isles to avoid corporation tax or Limited Liability Partnerships to avoid losses and evade scrutiny. They are fulfilling their missions, largely in the public gaze and under the scrutiny of their governing bodies, their staff, their students, internal and external auditors and all of the professional bodies and external regulators who currently assess them.
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I’ve
written before about some of my favourite FOI requests and the number of them and it does feel to me that the burden of FOI on universities is quite disproportionate to any benefits. The estimate of costs quoted in the Green Paper does feel low given that many FOI requests touch many parts of a university and can have a much broader impact on a very large number of individuals.
So, I think we should welcome this particular Green Paper idea which will reduce, however marginally, the volume of regulation and will not significantly reduce universities’ accountability to their stakeholders. Universities already publish large amounts of data via the publication scheme and perhaps this could be reviewed and potentially expanded so that information on more of the most commonly raised FOI issues has to be published and updated by institutions. This would both respond to the demands for openness and reduce the burden on universities.
Relatively speaking this is a small point in the Green Paper but for me it is a welcome one and would represent at least some reduction in burden. And a hint of a silver lining really doesn’t mean that everything else proposed is going to turn out fine.
I think lowering the regulatory burden or ‘giving Registrars less work to do’ is a really weak argument for taking HEIs out of FOI. I find the idea that the government are doing this to create a level playing field with alternative providers absurd. Why lower the bar of standards instead of raising them? The government could say to private providers that they receive public funding, so they should also be included in the FOI scheme.
“Because I have nothing to hide” is also a really weak argument. Firstly it’s not just about what’s being ‘hidden’, but about creating a general and desirable degree of transparency. Secondly I don’t think anyone is in a position to claim that no universities are – maybe not up to doing anything dodgy – but are perhaps making unusual and controversial decisions that are in the public’s (and their students’) interest to know about.
Maybe some are doing dodgy things as well, and if so then I think we’d like to know about it if they are. When I say we, I mean journalists, students’ unions, MPs and others who also scrutinise the sector from outside in the hope of improving things.
And ultimately I think it looks grubby. The government talk about creating transparency, and then propose to water it down. In much the same way they talk about accountability and then seek to give the Secretary of State greater, and less accountable or transparent power over universities.
It speaks to the tone of the whole Green Paper which I’m sorry to say, in total, begins to erode democracy in HE and HE’s place in our democracy.
University ‘fat cats’ are promised the Daily Mail’s special attention later this week – so expect pictures of Vice-Chancellors relaxing (taken from their facebook pages) alongside sneers that they once claimed £1.40 for a bus fare. That may harden some resolve to get out of the FOI’s ambit.
Do we know whether this will be an explicit exemption from FOI, or the broader concept that universities are now not ‘public bodies’? That would be trickier – there would be a whole series of obligations that would fall out from that shift.
Still waiting to hear about all those positive benefits FOI has brought to the sector over the years…but in the meantime yes, it really looks like an afterthought in the Green Paper or an annoying consequence of other changes but heck, you have to get your positives from wherever you can. As to whether it is specifically FOI or public body change, who knows?
Really interesting exchange of views – must admit first hint of being exempt from FOI leads to general jubilation in Planning Depts up and down the land spending hours cutting data (which has already been reported publicly in most cases) in ever so slightly different but always time consuming ways for badly defined FOI requests – and yet…. just read by accident Naomi Klein’s Shock Doctrine (written in 2007) about using real or manufactured crises to hand more of what used to be jobs of government to the private sector, and worried now about what gradual privatisation of existing HEPs (different from just paying more student loans to more, new, private sector HEPs) would actually mean (mostly we have been talking about marketization up till now ….) and if this FOI thing is part of the thin end of the wedge.