On 24 July 2006, I sent a request to the University of Central Lancashire (UCLAN), under the Freedom of Information Act (2000) I asked to see the teaching materials that were used on their BSc Homeopathy course. The request was refused, citing the exemption under section 43(2) of the Act (Commercial Interests).
Two internal reviews were then held. These reviews upheld and the original refusal on the grounds of commercial interests, Section 43(3), and additionally claimed exemption under Section 21 “that is reasonably accessible to applicants by other means (upon the payment of a fee)….i.e. by enrolling on the course….”
In 21 October 2006 I appealed to the Office of the Information commisioner. (The”public authority” means UCLAN, and “the complainant” is me.)
“The complainant specifically asked the Commissioner to consider the application of section 43(2) to the course materials he had requested. The main thrust of his argument in this regard was that the public authority could not be considered a ‘commercial organisation’ for the purposes of the Act, and that the public authority had confused ‘commercial interests’ with ‘financial interests’. He however added that if the Commissioner decided section 43(2) was correctly engaged, then it was in the public interest to order disclosure.”
In May 2008, my appeal got to the top of the pile, and on 30th March 2009 a judgement was delivered. In all respects but one trivial one, the appeal was upheld. In future universities will not be able to refuse requests for teaching materials.
The Decision Notice is on the web site of the Office of the Information Commissioner, [or download pdf file].
This whole thing has taken so long that the course at which it was aimed has already closed its doors last August (and blamed that, in part, on the problems caused by the Freedom of Information Act). UCLAN also announced a review of all its alternative medicine activities (and asked me to give evidence to it). That review is due to report its findings any time now.
Tha particular course that prompted the request is no longer the point. What matters is that all the usual exemptions claimed by universities have been ruled invalid. Here are a few details
What the decision notice says (the short version)
The full text of the Act is here.
The following three exemptions were judged NOT to apply the requests for university teaching materials. I’ll quote some bits from the Decision Notice.
Section 21 provides that –
“Information which is reasonably accessible to the applicant otherwise than under section 1 is exempt information.”
34. The public authority’s argument suggests that the requested information is reasonably accessible to the complainant if he enrols as a student on the course, and is therefore not accessible to him by any other means outside the Act unless he decides to make a total payment of £9,345 as a combined payment of three years tuition fees.
40. The Commissioner therefore finds that the public authority incorrectly applied the exemption contained at section 21 of the Act.
Section 42(2) provides that –
“Information is exempt information if its disclosure under this Act would, or would be likely to, prejudice the commercial interests of any person (including the public authority holding it).”
71. The Commissioner therefore finds that the section 43(2) was incorrectly engaged by virtue of the fact that the public authority’s ability to recruit students is not a commercial interest within the contemplation of section 43(2).
76. In addition to his finding on commercial interests the Commissioner finds that section 43(2) would in any case not be engaged as the likelihood of prejudice to the public authority’s ability to recruit students as a result of disclosure under the Act is no more than the likelihood of prejudice resulting from the availability of the course materials to students already enrolled on the course.
Section 36(2)C provides that –
“Information to which this section applies is exempt information if, in the reasonable opinion of a qualified person, disclosure of the information under this Act-
(c) would otherwise prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs
|98. For the reasons set out above, the Commissioner finds that section 36(2)(c) is not engaged as he does not accept the opinion of the qualified person is an objectively reasonable one. He does not find that disclosure would be likely to prejudice the effective conduct of public affairs.|
Section 41(1) provides that –
“Information is exempt information if-
(a) it was obtained by the public authority from any other person (including another public authority), and
(b) the disclosure of the information to the public (otherwise than under this Act) by the public authority holding it would constitute a breach of confidence actionable by that or any other person.”
|56. The Commissioner therefore finds the public authority correctly applied the exemption contained at section 41 to the case studies listed in Annex A. In the Commissioner’s view, even though the patients would not be identifiable if the case studies were disclosed, this disclosure would still be actionable by the patients.|
99. The Commissioner finds that section 41 is engaged
100. He however finds that the exemptions at sections 21, 43(2), and 36(2)(c) are not engaged.
101. The Commissioner therefore finds the public authority in breach of;
• Sections 1(1)(b) and 10(1), because it failed to disclose the remainder of the course materials (i.e. excluding the case studies) to the complainant within 20 working days.
• Section 17(1), because it did not specify in its refusal notice that it was also relying on sections 41 and 36(2)(c).
103. The Commissioner requires the public authority to take the following steps to ensure compliance with the Act:
• Disclose all the course materials for the BSc (Hons) in Homeopathy apart from the case studies listed in Annex A of this Notice.
104. The public authority must take the steps required by this notice within 35 calendar days of the date of this notice.
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