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« Corruption in the academy | Main | House of Lords on the Green Agenda »

The academy wants no scrutiny

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:

  • Baroness Brinton, a LibDem who seems to have been ennobled as a consolation prize for not getting elected to Parliament. She is a former bursar of Selwyn College Cambridge
  • Baroness Warwick (Lab), Chief Executive of Universities UK.
  • Baroness Benjamin, best known as the presenter of the preschooler's TV show, Play School. She is now chancellor of the University of Exeter.

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.

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Reader Comments (20)

Coming on top of the D.M. story about the British Medical Journal this really winds me up but the thought of a presenter of Play School as a Baroness and also chancellor of the University of Exeter having any input is beyond me! What is through the round window today!

Jan 13, 2012 at 8:54 AM | Unregistered CommenterPete H

These people are still barking up the wrong tree! They are mostly asking for exemption from the EIR and the Aarhus Convention.

24. There have been a number of recent high-profile instances of FOIA being used in relation to scientists working in controversial fields, particularly in relation to climate change and the use of animals in scientific experimentation. Sir Paul Nurse, President of the Royal Society has argued that FOIA is being used as a ‘tool of intimidation’ against university researchers engaged in controversial studies.

Both of these areas and much medical information are environmental and FOIA exemptions will not help them.

Then we see where all this push back started

30. The report by the Independent Climate Change Email Review, led by Sir Muir Russell, recommended that:

There is extensive confusion and unease within the academic community as to exactly how FoIA/EIR should be applied in terms of the materials developed during a research process. The Review believes that all data, metadata and codes necessary to allow independent replication of results should be provident concurrent with peer-reviewed publication. The situation regarding supporting materials such as early drafts, correspondence with research colleagues and working documents is widely regarded as unclear. The American experience is instructive here. The so called Shelby Amendment in 1998 directed the US Office of Management & Budget (OMB) to produce new standards requiring all data produced under Federally funded research to be made available under the US Freedom of Information Act. This resulted in great concern within the US Scientific community, expressed through Congressional testimony, that a very broad interpretation of this requirement could seriously impair scientific research and collaboration. In the final OMB guidelines recognising these concerns, research data is defined as: ―the recorded factual material commonly accepted in the scientific community as necessary to validate research findings, but not any of the following: preliminary analyses, drafts of scientific papers, plans for future research, peer reviews, or communications with colleagues. The Review recommends that the ICO should hold consultations
on a similar distinction for the UK FoIA/EIR.

Jan 13, 2012 at 9:05 AM | Unregistered CommenterDavid Holland

Isn't one option for anyone wanting to avoid FOIA to drop all the public funding they might receive. There is loads of research carried out in the private field, just think of all the electronics, communications and IT that is going through rapid development as we write. I'm pretty sure industry funds a lot of that.

Jan 13, 2012 at 9:55 AM | Unregistered CommenterRob Burton

Yes, but private funding tends to go into areas which might produce workable and salable commercial products, such as those you mention.

Climate 'science' has to be publicly funded, because it's supposedly for the common good (ha!), so for these people to try to cover up their findings is a bit rich, to say the least.

Jan 13, 2012 at 10:02 AM | Unregistered CommenterRick Bradford

I like the fifth exemption [(v) the physical or mental health of any individual]. Is this a specific exemption for any work ever done by a certain Phil Jones and/or anyone who has ever worked with him?

Jan 13, 2012 at 10:13 AM | Unregistered CommenterIan E

I'd add to Rick Bradford's point that private funding will result in commercial deliverables (reports, graphs, recommendations, predictions/projections) that the private funding has paid for i.e deliverables that, if relied upon but found to be unreasonable and misconceived, can then be the subject of litigation: negligence, breach of contract, misleading and deceptive conduct etc. The climate scientists don't want private funding because they know they'll get sued over their output if their output is dodgy, up and it's inevitable, as Climate 1 and 2 have shown, that their output will be dodgy. They'll breach confidentiality agrmts, they'll fail to follow processes, their methodology will be shown to be chock full of confirmation bias and failures of basis data control and traceability. In my view the climate scientists are on the public teat and they won't let it go.

Jan 13, 2012 at 11:36 AM | Unregistered CommenterWB

If the public has paid for it, the public owns it. Simples!

In a democracy, the public has a right to see and scrutinise what its tax dollars are spent on.

Save for rare instances of national security, there can never be a good case for secrecy. There should be a frive to more openess, not less.

If universties want exemptions, they should not get any public funding. In fact, since students are being forces to pay fees, rhis raises questions as to why the universities are getting any public funding?

Changes should be resisted at all cost.

Jan 13, 2012 at 11:48 AM | Unregistered Commenterrichard verney

The Review believes that all data, metadata and codes necessary to allow independent replication of results should be provident concurrent with peer-reviewed publication.
Which so far doesn't look like a problem. Somebody correct me if they don't agree.
The situation regarding supporting materials such as early drafts, correspondence with research colleagues and working documents is widely regarded as unclear.
As I commented in the War on FOI thread, I'm not sure that the public needs unrestricted access to the working documents. How are you ever going to get scientists to "fly kites", bizarre as they might be, if the media are going to do what they do best: get hold of the wrong end of the stick and either make the victim look a total idiot or run the story as if it were fact ("Scientists plan for mass extermination of pet cats", for example.) Maybe I shouldn't have said that!
Presumably the amendments being proposed are largely the result of the UEA problem, a problem which would never have arisen had the Department in question been properly supervised and its staff required to follow good scientific practice. I suspect that the three peeresses involved have been well lobbied by the academic establishment and the only way of combatting this is for scientists of equal calibre and standing to put the counter-argument face-to-face, vigorously, and at length.
If such volunteers are to be found!
Like Ian E, I find the fifth exemption significant and the whole exercise reeks of a concerted effort by an arrogant academic establishment — not specifically to keep scientific research under wraps but to protect itself from any interference by any outside body.
It appears from the UEA situation, the BMJ survey, and other straws (haystacks?) in the wind that obtaining research funding is the only consideration and that paying anything other than lip service to good practice is becoming the exception in our universities rather than the rule.
It would be interesting to see the results of any survey aimed at finding out just how much research money over, say, the last 30 years was wasted either by universities deliberately extending research after results were known or (as may have been the case with UEA) diverting funds to other projects.

Jan 13, 2012 at 11:57 AM | Unregistered CommenterMike Jackson

Mike, you say

As I commented in the War on FOI thread, I'm not sure that the public needs unrestricted access to the working documents.

If what happened was that, first the IPCC lead authors beavered away for 5 years and then published their report together with all the drafts comments and responses; and then there was public open and transparent consultation period of say 6 months before the governments voted to accept it - I might be tempted to agree with you.

What the climate change industry want is for governments to accept the IPCC Assessment Report before anyone outside their close friends have had the opportunity to see it and the working documents of the process. Not only that, they want to have a summary written and trumpeted as proven fact well before the Report itself is published. It is an absurd proposition.

Jan 13, 2012 at 1:04 PM | Unregistered CommenterDavid Holland

Mike Jackson:
The IAC wrote, "The Review believes that all data, metadata and codes necessary to allow independent replication of results should be provident concurrent with peer-reviewed publication."
Your comment was "Which so far doesn't look like a problem. Somebody correct me if they don't agree." [sorry about the formatting, can't seem to do embedded blockquotes.]

I agree with the sentiment, but the belief that data & codes be provided upon publication does not equate to the actuality of same. Some periodicals have reasonable policies regarding supplemental information and archiving; others do not. To rely upon this in composing legislation -- "we don't need to provide for that, it'll happen on its own" -- is optimistic but unwise.

Many (most?) research programmes are long-standing, and publication of a paper does not end them. If paper A relies on a dataset which is also going to be used in future papers B, C, etc., it would seem that the exemption for future publication applies here, would it not? So if the journal does not require (or enforce) disclosure, then the data remains hidden.

An exemption based on disadvantaging future publication should have a stated time limit, to address the above continuing research programme scenario. That is, if the exemption is invoked, the refusal notice should state that in [say] one year, the FoI applicant may resubmit the request and the data must be provided at that time. [This would address cases such as Queen's University of Belfast, which tried to exempt decades-old data based on "ongoing research".]

Jan 13, 2012 at 2:03 PM | Unregistered CommenterHaroldW

Agree that there is no serious need to hyper-analyze the nuances, motivations, and rationales for the above mentioned changes. They are intended to accomplish one and only one thing: to deny the freedom of information, to deny access to publicly funded research, and to provide a broader range of exemptions from public scrutiny. These all work against the public interest, which is the one and only core intention.

Simple solution: If scientists and researchers do not want their data, methods, and conclusions to be accessible to the public (which pays their salaries and their bills), they should move to the private sector. End of problem.

These people have been getting a free ride for too long.

Jan 13, 2012 at 2:25 PM | Unregistered CommenterGarry

If the public has paid for it, the public owns it. Simples!

Says it all.

Jan 13, 2012 at 5:26 PM | Unregistered CommenterDon Pablo de la Sierra

I always find these appeals to the "investigations" amusing as a defense of FOIA.

Why not look at what the ICO has actually said? What FOIA's have been ruled a proper denial and what has been overturned as an improper denial? Is there an actual problem or are we just getting the fluff produced by the "investigations"?

As for providing "working documents"... what is that definition exactly? Are those the post-it note reminders or are they parts of the actual number crunching that went into the research? Lets say I write a program and provide you with the code to run the data yourself... but I don't supply you with the "working document" that I used that told me what folders I put the various data files in and what they are used for. The code at that point may or may not be totally useless, but it would take many many hours to figure out one way or the other.

Basically that is what is found in that Harry-readme file from climategate1. A programmer trying to figure out what the code was doing because the "working document" for that code was missing (which a good programmer knows should be in-line with the code itself).

Jan 13, 2012 at 6:38 PM | Unregistered CommenterGunstar1

Steve McIntyre has a good article up that covers the length that people like Jones are going to keep their research "secret".

Just imagine how awesome Jones could be if he exhorted just a fraction of the effort he has put in to keeping his research secret? Instead if being the best thing since sliced bread that he thinks he is he might actually be a truly great scientist?


Jan 13, 2012 at 6:47 PM | Unregistered CommenterMailman

quote "recent high-profile instances of FOIA being used in relation to scientists working in controversial fields..."

Surely a field which is controversial should be more thoroughly investigated. And perhaps it’s controversial because of suspected shenanigans behind the scene.

Its disappointing Paul Nurse can't see the obvious even within his own statement. What makes it controversial Paul?

Jan 13, 2012 at 8:19 PM | Unregistered CommenterGreg Cavanagh

Floella Benjamin of Play School joins Brian May of (Beauty?) Queen as Chancellor of a university - there may be others, if not, I expect there soon will be given the incipient financial stresses. Some curious subliminal metaphorical logic is in evidence here, but would such Carrolline games be necessary if the ivory towers were not so opaquely immured in the first place?

Jan 13, 2012 at 9:08 PM | Unregistered CommenterLuther Blissett

the choice of Chancellor surely says more about the university than anything else can. The fact that a university has a Play School presenter as Chancellor suggests that this is a play school university. The role of a chancellor is to embody the institution's would be like electing a clown like Tony Blair to be PM of the UK....;)

Jan 13, 2012 at 10:39 PM | Unregistered Commenterdiogenes

I would like to note, the discussion here is of law and not a discussion of outcome. To attempt to create a perfect law to restrict conspiracy or in the case of these fine Peers a law to exempt the conspirators, is in my opinion ridiculous.
We are discussing symptoms, the Freedom of Information laws are a quack physician's (in this case lawyers and legislators) poultice for a symptom not an attempt to cure the disease. The disease is the inability of the people's representatives to demand access to the workings of a bureaucracy. This has festered and is now gangrenous due to the reluctance of the mainstream media to report this fundamental failure of democracy.
Who would have thought a climate scientist would not want to talk about the weather, and the press would not report this absurdity?

Jan 13, 2012 at 10:49 PM | Unregistered CommenterJon at WA

Essentially, they are aiming to legalise scientific misconduct.

Jan 14, 2012 at 10:00 AM | Unregistered CommenterPunksta

Tsk tsk such snobbery.

Brian May is an astrophysicist when not swinging his axe.

Floella Benjamin is just a goddess ! Exeter Uni. is not worthy.

Jan 14, 2012 at 12:36 PM | Unregistered CommenterJohn Barrett

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