Panic? What panic? FOI and researchers.

With all the recent brouhaha around the forced disclosure of research data, after the University of East Anglia and Queens University Belfast climate-change researchers were required to make their data available whether they like it or not, it seems that Incremental really is working on a hot topic!

However hair-raising the various reports have been for researchers, though, a couple of sensible points have been made, particularly in the Times Higher Education Supplement article and its subsequent reader comments [at http://www.timeshighereducation.co.uk/story.asp?sectioncode=26&storycode=412475&c=2%5D.

Chris Rusbridge, erstwhile director of the Digital Curation Centre, reminds us therein that in the Queens University case, the request for information was made specifically under the Environmental Information Regulations, which he describes as ‘stricter’. Further, Rodney Breen points out that “the Freedom of Information Act has exemptions to protect data which is collected with a reasonable expectation of confidentiality, and data which is commercially sensitive. Under the Scottish Act, there is specific protection for research data. There is no reason why material for which researchers have legitimate need for protection should need to be disclosed.”

I had a look at the Freedom of Information Act (Scotland) 2002 and Part 2 (Exempt Information) does indeed say:

27 Information intended for future publication

(1) Information is exempt information if—

(a) it is held with a view to its being published by—

(i) a Scottish public authority; or

(ii) any other person,

at a date not later than twelve weeks after that on which the request for the information is made;

(b) when that request is made the information is already being held with that view; and

(c) it is reasonable in all the circumstances that the information be withheld from disclosure until such date as is mentioned in paragraph (a).

(2) Information obtained in the course of, or derived from, a programme of research is exempt information if—

(a) the programme 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 Scottish public authority; 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;

(ii) the interests of any individual participating in the programme;

(iii) the interests of the authority which holds the information; or

(iv) the interests of the authority mentioned in sub-paragraph (i) of paragraph (a) (if it is a different authority from that which holds the information).

I’m (obviously) no legal expert, but I read this as describing certain types of research data as exempt from FoI requests in Scotland, which means, as Chris Rusbridge puts it, ‘This is not all as bleak as it’s painted!’

Clarification, comments, and any differences in the situation for Wales, Northern Ireland and England are, of course, very welcome.

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10 Responses to Panic? What panic? FOI and researchers.

  1. Interesting.

    So, an individual (not part of a research programme) must intend to publish within 12 weeks, whereas an individual (part of a research programme) may withhold indefinitely.

    Now: how does one define, legally, “research programme?” Would that definition include PhD study? If not, since I do not intend to publish within the next 12 weeks, my ongoing research would be subject to an FOI request.

  2. Sarah says:

    Hmmm, good point.

    The worrying thing is that we probably have to wait on case law to find that out – I expect that’s when a decision would be made as to how “research programme” is legally defined.

    • Grant says:

      However, if you’ve collected the data yourself in course of study, then presumably it doesn’t belong to the institution and so would fall outside the scope of FOI or FOI EIR? Unless you’re also employee of institution, which might perhaps have a bearing…

      • True statement, Grant.

        The thing about resisting an FOI request for research information is that it appears that criteria 2a and 2b must both be met – it’s not simply that you’re going to publish, but that release of the information would somehow affect the project, researchers, or institution. Therefore, research data seems to be up for grabs to FOI requests unless one can present a compelling argument against releasing it, based upon the criteria laid out in 2b.

  3. I work for the Scottish Information Commissioner – it’s been suggested that it might be helpful for us to add a comment to this blog.

    David’s right – for the exemption in s27(2) of the Scottish FOI Act to apply, both of the tests in s27(2)(a) and (b) have to apply. So, not only does the programme of research need to be continuing with a view to a report of the research being published, the disclosure must also prejudice substantially, or be likely to prejudice substantially one of the interests specified in s27(2)(b).

    In addition, the exemption is subject to the public interest test.

    As for a definition of “programme of research”, we haven’t issued any decisions on this yet (we’ve never been asked to consider the exemption). However, in our briefing on the s27 exemption, we say:

    The phrase ‘a programme of research’ is not defined within FOISA, but during parliamentary debate on the Freedom of Information Bill it was explained that this wording was deliberately chosen to distinguish genuine academic research from other similar processes involving simple data collection or the analysis of such data.

    As a result of these discussions, section 27(2) of FOISA exempts information that forms part of a research project, if releasing the information would, or would be likely to, prejudice substantially the programme of research or the interests of anyone involved in commissioning it or carrying it out. This is intended as a safeguard against the forced disclosure of incomplete research which could result in the misinterpretation of incomplete data from third parties significantly harming the value of the research. However, there are several conditions which must be met before this exemption can be cited, which make it less open to misuse.

    When the bill was being discussed, it was made clear that the term ‘a programme of research’ extended only to a piece of finite research. Therefore, authorities claiming this exemption are expected to make clear the point at which the research would be considered complete.

    Section 27(2) is not restricted to any particular type of research or institution and may cover research relating to social issues, the arts and humanities, as well as science and technology.

    The full briefing can be read at: http://www.itspublicknowledge.info/nmsruntime/saveasdialog.asp?lID=2650&sID=111

    Apologies for the length of this post, but I hope it’s of some interest.

  4. […] and researchers: an update Following on from our earlier post, ‘Panic?  What Panic?  FOI and researchers‘, we’ve noticed that the JISC has produced some FOI guidance for researchers.  […]

  5. read says:

    read…

    […]Panic? What panic? FOI and researchers. « Incremental Project Blog[…]…

  6. Domy jednokondygnacyjne stają się coraz bardziej popularnym rozwiązaniem. Za tego typu formą budynku przemawia kilka argumentów, które sprawiają, że staje się

  7. Biorąc pod uwagę fakt, że dom buduje się na lata a liczba mieszkających w nim osób wraz z upływem lat może się zmniejszyć warto dobrze przemyśleć sprawę wyboru

  8. Od kilku lat wzrost zainteresowania ekologicznym i energooszczędnym budownictwem stale wzrasta. Możliwość otrzymania dopłat do zastosowania w swoim nowo

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