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.
BSc courses in homeopathy are closing. Is it a victory for campaigners, or just the end of the Blair/Bush era?
Dr Peter Davies, dean of Westminster’s school of integrated health, says
“he welcomes the debate but it isn’t as open as he would like.”
Well you can say that again. The University of Westminster has refused to send me anything much, and has used flimsy excuses to avoid complying with the Freedom of Information Act. Nevertheless a great deal has leaked out. Not just amethysts emit hig Yin energy, but a whole lot more (watch this space). Given what is already in the public, arena, how can they possibly say things like this?
“Those teaching the courses insist they are academically rigorous and scientific.”
There’s another remark from an unlikely source that I can agree with too. George Lewith, of Southampton University and Upper Harley Street, is quoted as saying
“The quality of degrees is an open joke . . . ”
Whatever next? [Note: Lewith told me later that he was quoted out of context by the Guardian, so it seems that after all he is happy with the courses. So sadly I have to withdraw the credit that I was giving him].
The article emphasises nicely the view that universities that run BSc degrees in things that are fundamentally the opposite of science are deceiving young people and corrupting science itself.
Professor Petts of Westminster seems to think that the problem can be solved by putting more science into the courses The rest of the world realises that as soon as you apply science to homeopathy or naturopathy, the whole subject vanishes in a puff of smoke, I fear that Professor Petts will have to do better,
“He [DC] believes the climate is starting to change after the Bush/Blair era where people believed in things because they wished they were true. “This has been going on for a generation and it’s about time for a swing in the other direction,” he suggests.”
Well, one can always hope.
After the announcement that the University of Central Lancashire (Uclan) was suspending its homeopathy “BSc” course, it seems that their vice chancellor has listened to the pressure, both internal and external, to stop bringing his university into disrepute.
An internal review of all their courses in alternative medicine was announced shortly after the course closure. Congratulations to Malcolm McVicar for grasping the nettle at last. Let’s hope other universities follow his example soon.
I have acquired, indirectly, a copy of the announcement of the welcome news.
| Homeopathy, Herbalism and cupuncture
Concern has been expressed by some colleagues as to whether the University should offer courses in homeopathy, Herbalism and Acupuncture. Therefore, to facilitate proper discussion on this matter I have set up a working party to review the issues.
I have asked Eileen Martin, Pro Vice-Chancellor and Dean of the Faculty of Health, to lead this working party and report to me as soon as possible. Whilst the review is taking place, we need to recognise that there are students and staff studying and teaching on these courses which have satisfied the University’s quality assurance procedures and been duly validated. I would therefore ask that colleagues would refrain from comment or speculation which would cause concern to these students and staff. Staff who wish to express their views on this issue should direct these to Eileen Martin, by the end of September.
Times Higher Education today reports
“The University of Central Lancashire is to review all its courses in homoeopathy, herbalism and acupuncture after some staff said it should not be offering degrees in “quackery”, Times Higher Education has learnt.
A university spokesman said: “As a university we value and practise transparency and tolerance and welcome all academic viewpoints.”
(Later, an almost identical version of the story ran on the Times Online.)
So far, so good. But of course the outcome of a committee depends entirely on who is appointed to it. Quite often such committees do no more than provide an internal whitewash.
It does seem a bit odd to appoint as chair the dean of the faculty where all these course are run, and presumably generate income. Eileen Martin has often appeared to be proud of them in the past. Furthermore, the whole investigation will (or should) turn on the assessment of evidence. It needs some knowledge of the design of clinical trials and their statistical analysis, As far as I can see, Ms Martin has essentially no research publications whatsoever.
I also worry about a bit about “satisfied the University’s quality assurance procedures and been duly validated”. One point of the investigation should be recognise frankly that the validation process is entirely circular, and consequently worth next to nothing. It must be hard for a vice-chancellor to admit that, but it will be an essential step in restoring confidence in Uclan.
Let’s not prejudge though. If there are enough good scientists on the committee, the result will be good.
I hope that transparency extends to letting us know who will be doing the judging. Everything depends on that.
Well well, there’s a coincidence, Once again, the week after a there is an announcement about degrees in witchcraft, what should pop up again in the column of the inimitable Laurie Taylor in THE. The University of Poppleton’s own Department of Palmistry.
|Letter to the editor
I was shocked to see yet another scurrilous attack upon the work of my department in The Poppletonian. Although Palmistry is in its early days as an academic discipline it cannot hope to progress while there are people like your correspondent who insist on referring to it as “a load of superstitious nonsense which doesn’t deserve a place on the end of the pier let alone in a university”.
A large number of people claim to have derived considerable benefit from learning about life lines, head lines and heart lines and the role of the six major mounts in predicting their future. All of us in the Palmistry Department believe it vitally important that these claims are rigorously examined. How else can science advance?
The first major victory in the battle for the integrity of universities seems to have been won. This email was sent by Kate Chatfield who is module leader for the “BSc” in homeopathic medicine at the University of Central Lancashire (UCLAN).
|from Kate Chatfield…
It’s a sad day for us here at UCLan because we have taken the decision not to run a first year this year due to low recruitment. The course will be put ‘on hold’ for this year and next until we see what happens with the general climate. Fortunately our masters course is thriving and we have been asked to focus upon this area and homeopathy research for the time being.
Of late UCLan has been the subject of many attacks by the anti-homeopathy league. Colquhoun et al have kept the university lawyers and us quite fruitlessly busy by making claims for very detailed course information under the Freedom of Information Act. The latest demand is for 32 identified lesson plans with teaching notes, power points, handouts etc. The relentless attacks have taken their toll and it appears that they have won this small victory.
The university has been very clear that this decision has been taken solely on the grounds of poor educational experience and is nothing to do with the current furore. They continue to be supportive of us and our efforts.
Kate and Jean
There is some background here. In July 2006 I made a request to UCLAN under the Freedom of Information Act 2000, in which I asked to see some of their teaching materials. I appealed to UCLAN but Professor Patrick McGhee, Deputy Vice-Chancellor (Academic), also turned down two appeals. A letter sent directly to Professor Malcolm McVicar, vice-chancellor and president of UCLAN, failed to elicit the courtesy of a reply (standard practice I’m afraid, when a vice chancellor is faced with a difficult question). (Ironically, McVicar lists one of his interests as “health policy”.) So then I appealed to the Office of the Information Commissioner, in November 2006. Recently the case got to the top of the pile, and a judgment is expected any moment now.
Kate Chatfield’s letter to her colleagues is interesting. She describes a request ro see some of her teaching materials as an “attack”. If someone asks to see my teaching materials, I am rather flattered, and I send them. Is she not proud of what she teaches? Why all the secrecy? After all, you, the taxpayer, are paying for this stuff to be taught, so why should you not be able see it? Or is the problem that she feels that the “alternative reality” in which homeopaths live is just too complicated for mortals to grasp? Perhaps this attitude should be interpreted as flattering to the general public, because somewhere deep down she knows that the public will be able to spot gobbledygook when they see it. The revelation that the University of Westminster teaches first year undergraduates the “amethysts emit high yin energy” didn’t help their academic reputation much either.
Much credit for this decision must go also to the pressure from the many good academics at UCLAN. When it was revealed recently that UCLAN intended to open yet more courses in forms of medicine that are disproved or unproven, they naturally felt that their university was being brought into disrepute. Opposition to plans to introduce new “degrees” in acupuncture and Chinese herbal medicine were exposed in Times Higher Education recently. It particular, great credit must go to Dr Michael Eslea from UCLAN’s Psychology department. His open letter to his vice-chancellor is an example of scientific integrity in action.
The abandonment of this degree in medicines that contain no medicine is a small victory for common sense, for science and for the integrity of universities. Sadly, there is still a long way to go.
It is my understanding that ‘bringing the university into disrepute’ is a serious offence. Please note, vice-chancellor.
A few more judgments like that to suspend your homeopathy degree could work wonders for your reputation.
Watch this space.
The Guardian was quick off the mark -this story appeared on their education web site within 3 hours of my posting it “Homeopathy degrees suspended after criticism” by Anthea Lipsett. My comment there disappeared for a while because the Guardian legal people misunderstood the meaning of the last sentence. It’s back now, with blame allocated unambiguously to the vice-chancellors of the 16 or so universities who run this sort of course.
UCLAN’s web site seems to need some updating. The “BSc” in homeopathic medicine is still advertised there. as of 28 August.
UCLAN’s best ally. Dr Michael Eslea, has had some publicity for his attempts to rescue his university’s reputation. The story appeared in the “High Principals” column of Private Eye (Issue 1217, Aug 22, 2008). It also appeared in his local paper, the Lancashire Evening Post.
The Lancashire Evening Post catches up with homeopathy suspension story, two days after you read it here. But the UCLAN web site still advertises it.