A few days ago, I mentioned a suggestion that 2012 is going to be the scene of a major pushback against Freedom of Information.
As part of this, Universities UK - the umbrella organisation for ivory towers - is pushing very hard for an exemption from the Freedom of Information Act, and have produced a briefing paper for peers on the subject. Their target is an amendment to the Protection of Freedoms Bill. This amendment has been proposed by:
So, Universities UK are in essence able to propose their own amendments via their sympathisers in the House of Lords. It's certainly something of an indictment of British democracy to see special interest groups propose their own legislation in this way.
Now let's take a look at the amendment itself (it's in the briefing paper linked above). The area that UUK are attacking is "information due for publication". Strangely, information due for publication is actually already exempt from disclosure, although there is a public interest qualification to the exemption. (I think in practice that this qualification rarely comes into play, since FOI applicants can currently simply be told to wait a bit -it's rare that the need for the information is so urgent as to bring the public interest qualification into play.) However, this protection appears to be viewed as inadequate by UUK, and the amendment is a complete rewrite, essentially bringing England and Wales into line with Scotland, where there is a rather broader exemption. The new wording would be as follows:
( ) In section 22 (information intended for future publication) after subsection (1) insert—
(1A) Information obtained in the course of, or derived from, a programme of research or research project is exempt information if—
(a) 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—
(i) a public authority as defined by section 3 of this Act; or
(ii) any other person; and
(b) disclosure of the information before the date of publication would, or would be likely to, prejudice substantially—
(i) the programme or project;
(ii) peer review of the programme or project;
(iii) the interests of any individual participating in the programme or project;
(iv) 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
(v) the physical or mental health of any individual.
The existing exemption says that any information requested is exempt from disclosure if it is going to be published in due course. The new one appears to say that if information requested is part of a programme that is going to lead to a publication it is exempt. This vastly expands the scope of the exemption.
See how it will work - let's say someone wants some correspondence about tree rings. Under a revised FOI Act the university can say "no, this correspondence was created as part of a programme of research and there will be a report of that research in due course". In other words, not only the data, but the peripheral stuff - emails plotting to keep critics of the research programme out of the scientific literature and so on - are brought within the scope of the exemption. (It is worth pointing out that tree rings would still be disclosable under the Environmental Information Regulations - I'm merely illustrating the principles with a familiar example).
But more than this, the term "research programme" is deliciously vague, isn't it? Does this mean that when the paper is published, the university can turn round and say "we are still involved on a research programme on tree rings. The emails are still exempt". I think so. I don't know so, of course, and the obvious question is to ask how the exemption has worked in Scotland, but unfortunately according to this blog, the question has never been asked of the COmmissioner so there is no legal precedent as yet.
I have a bad feeling about this.