A momentous decision was promulgated (as lawyers say) by the Information Tribunal on December 8th 2009. It marks a step forward in Freedom of Information about how universities spend your money. It has taken 3.5 years to get to this point. Perhaps now there will be an end to the attempts of every single university that I’ve
approached to conceal what they teach.
"The Tribunal upholds the decision notice dated 30th. March, 2009, dismisses the appeal and directs that all the steps required by the Decision Notice be taken within 28 days of the date of this Decision"
Back story for this case
24th July 2006. I asked the University of Central Lancashire (UCLAN) for copies of teaching materials and validation documents for their "BSc" degree in homeopathy (this degree no longer exists: it was abolished in 2008). A year later, UCLAN shut the rest of its courses in alternative medicine, after an internal review.
21 August 2006. I was sent the validation documents but refused the teaching materials as UCLAN claimed they were exempt under section 43(2) of the Freedom of Information Act (FOIA)(commercial interests). Two days later I sent a request for the mandatory internal review of the refusal.
4th October 2006. The internal review confirmed the original decision (it always does), and cited, as well as section .43(2) of FOIA, section 21.
21 October 2006. I appealed to the Information Commissioner. The basis of the appeal was that the university might have financial interests in the outcome, but not commercial interests, because universities are not commercial organisations as defined in section 43(2) of the FOIA. In addition, even if the commercial argument was not allowed, the public interest in knowing what was taught was sufficient to justify release of the requested materials.
21 January 2008. The Information Commissioner finally got round to starting on the case.
29 September 2008 The vice-chancellor, Malcolm McVicar, raised an objection to complying with my request under s.36(2)(c) of FOIA. This states that “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..”
30 March 2009. The decision of the Information Commissioner was published. It has already been described here. Apart from one trivial matter, my appeal was upheld, and UCLAN was ordered to release the requested material within 35 days. However UCLAN did not release the material, but rather launched an appeal against the Information Commissioner. The appeal was heard by an Information Tribunal.
The full text of the Freedom of Information Act is here.
The Information Tribunal
The Tribunal heard the case of University of Central Lancashire v Information Commissioner in Manchester on November 3, 4 and 5. I was an ‘additional party’ to the proceedings and attended in person for the first two days, with the aim of helping the Information Commissioner’s case. This is what the tribunal looked like.
I was amazed to find myself sitting next to the barrister for the Information Commisioner, and still more amazed to be invited to cross-question the witnesses, after she had questioned them.
The witnesses were Malcom McVicar (vice-chancellor of UCLAN), Peter Hyett, (executive director of finance at UCLAN) and David Phoenix (Deputy vice-chancellor, UCLAN).
The decision in full can be read here.
The Tribunal upholds the decision notice dated 30th. March, 2009, dismisses the appeal and directs that all the steps required by the Decision Notice be taken within 28 days of the date of this Decision.
So we won.
The details of the decision contain some matters of great interest for universities, in particular the dismissal of the idea that the public can be reassured by either internal or external (e.g. QAA) validation procedures. I’ll try to summarise them (paragraph numbering as in the decision
The one disappointing thing about the Tribunal’s decision was that it contradicted the Information Commissioner’s decision on the meaning of commercial interests.
31 "Therefore, whether on a broad or narrow construction of the statutory words, we are satisfied that UCLAN `s interests in teaching material produced for its degree courses are properly described as “commercial”.
However, that does not affect the outcome because the Tribunal decided that there was no reason to think that the course materials actually had the commercial value that UCLAN said they did. For
36 We were not impressed by the claim that third parties with copyright in the disclosed materials would be alienated by UCLAN `s compliance with a decision that this information must be provided. None gave evidence to that effect.
37 It was not clear to us how a competitor could significantly exploit access to this material, without infringing UCLAN `s copyright or brazenly aping the content of a course, which would surely attract the scorn of the wider academic community. Moreover, it seemed to us likely that most potential students would be attracted to a particular course by the reputation of the teaching staff and a range of extra – curricular factors at least as much as by a comparative study of the powerpoint presentations and notes provided to current students.
39 Finally, in this particular case, we doubt whether this course had a significant commercial value, given the limited enrolment and the virtual absence of overseas interest.
At this point, the appeal is essentially dismissed. Nevetheless, the Tribunal went on to discuss the other defences offered by UCLAN, and some of their conclusions are more interesting than the subtle distinction between ‘financial interests’ and ‘commercial interests’.
40 In the light of this finding, it is not strictly necessary to decide the balance of public interest as to disclosure. Nevertheless, since the issue has been carefully and very fully argued, we shall shortly indicate our view, had the likelihood of prejudice been established.
The commercial interest defence is subject to the public interest argument in s.1(2((b) of the FOIA’
(b) in all the circumstances of the case, the public interest in maintaining the exclusion of the duty to confirm or deny outweighs the public interest in disclosing whether the public authority
holds the information.
Hence, the decision notice says
41 As ever, the question is whether the public interest in maintaining the exemption outweighs the interest in disclosure.
On the question of public interest, the Tribunal comes down strongly on the side of the Commissioner and me.
46 The public interest in disclosure seems to us appreciably stronger. Apart from the universal arguments about transparency and the improvement of public awareness, we find that there are particular interests here, arising from the nature of a university and the way it is funded.
It is particularly interesting that the Tribunal dismissed the role of internal and external validation as a substitute for transparency. As part of their case (para 18) UCLAN had argued
"Moreover, standards were ensured by the validation procedures which were required before a course was launched and which involved independent expert external monitors and by quality assurance (Q.A.A.) which demands a continuing compliance with national standards."
This cut no ice with the Tribunal. In one of his few direct interjections the Tribunal Chairman, David Farrar Q.C., questioned a witness directly about the internal validation processes, Evidently he was not impressed by the answers. During my own cross questioning of the deputy vice-chancellor, I put to him the view that since the QAA [Quality Assurance Agency] was not allowed to take any notice of the content of courses, that getting a high mark from the QAA was not a substitute for seeing what was actually taught. The deputy vice-chancellor did not seem to disagree strongly with that view.
47 First, the public has a legitimate interest in monitoring the content and the academic quality of a course, particularly a relatively new course in a new area of study, funded, to a very significant extent, by the taxpayer. It is no answer, we consider, to say that this function is performed by the process of validation or the continuing monitoring of standards with external input. Whether or not these processes are conducted with critical rigour, it must be open to those outside the academic community to question what is being taught and to what level in our universities. The apparent perception in some quarters that the intellectual demands of some or many degree courses have been relaxed, that higher classes of degree are too lightly earned, may be largely or entirely unfounded. But it is highly important that the material necessary to a fair judgement be available. That material will often, if not always, include the basic content of the course, such as is requested here.
48 Secondly, this is especially the case where, as with the BSc. (Homeopathy), there is significant public controversy as to the value of such study within a university. In this case, that factor standing alone would have persuaded us that the balance of public interest favoured disclosure.
49 We are not attracted by the somewhat patrician argument that the general public, uninstructed in the specialist subject under scrutiny, would be incapable of forming a proper judgement. That might be so, were it impossible to seek independent expertise to assist in making an assessment. Happily, it is not.
50 Finally, there is a public interest in opening up new methods of teaching and new insights as to the content of courses, so as to stimulate the spread of good practice.
So, a hands down win on the public interest argument.
Prejudice to effective conduct of public affairs
I found incomprehensible the argument that disclosure would ‘prejudice the effective conduct of public affairs’. But it was raised (at the last minute) by UCLAN, and it was considered by the Tribunal. This defence refers to s.36(2)(c) of FOIA. It states that “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..”
As noted at paragraph 17, it is common ground, established as to (iii), by the jurisprudence of the Tribunal, that this exemption is engaged if three requirements are met. They can be shortly labelled
(i) qualified person
(ii) reasonable opinion
(iii) reasonably arrived at.
The Tribunal seemed to be distinctly unimpressed by the arguments presented by UCLAN.
56 A reasonable opinion may be one with which the Tribunal emphatically disagrees, provided it is based on sound argument and evidence. With great respect to Professor McVicar, whose sincerity is not in question, we can find no adequate evidential basis for this opinion and consider that it rests on two misconceptions as to the application of FOIA. We do not find that it passes the required test of objective reasonableness.
57 We considered separately whether the opinion was reasonably arrived at. Again, our answer is no.
58 Section 36 provides for an exceptional exemption which the public authority creates by its own action, albeit subject to scrutiny of its reasonableness, the likelihood of prejudice and the question of the public interest. That factor of itself justifies a requirement that the authority provide substantial evidence as to the advice (other than legal advice) and the arguments presented to the qualified person upon which his opinion was founded. We emphasise that no set formula is required, just a simple clear record of the process.
59 The need for such evidence is all the greater where, as here, the authority invokes s.36 for the first time after the complaint to the IC [Information Commissioner].
60 The evidence consists of a briefly argued email from Dr. Bostock suggesting that s.36(2)(c) be invoked on the very broadly argued grounds already reviewed. The tone implicitly acknowledges that the claim is rather speculative. We are not concerned with the slightly uncertain use of possibility and likely but the impression left is of a last minute idea, not really thought through or investigated
but merely discussed with solicitors to tie it in to the FOIA. It was sent to the Vice Chancellor at 3.20pm. on a Friday afternoon, 26th. September, 2008, asking for the Vice Chancellor’s agreement. That agreement was forthcoming in a single sentence without further comment in an email reply timed at 12.05pm.on the following Monday.
61 We find that the process of forming the necessary opinion was, to say the least, perfunctory, indeed far short of the careful assessment and investigation that normally supports a qualified opinion for the purposes of s.36.
62 Accordingly, we do not find that it was reasonably arrived at.
62 It is for these reasons that we uphold the Decision Notice. We record our gratitude for the helpful and succinct submissions of counsel on both sides and the incisive contribution of Professor Colquhoun. We wish to add that, whilst we have not accepted the great majority of the arguments advanced by UCLAN, we do not in any way seek to cast doubt on the veracity of the evidence of its witnesses, nor the honesty and loyalty with which they have sought to serve its interests.
63 Our decision is unanimous.
Signed David Farrar Q.C.
Watch this space to see what can now be revealed.