Presentation at Cambridge University in February 2011

1. Frequently-asked questions on
Freedom of Information and
Environmental Information
Regulations Requests for Research
Data
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2. Contents
• Background: Climategate & FoI
• How many requests for research data?
• Costs and benefits?
• Freedom of Information (FoI) exemptions relevant to
research data
• Environmental Information Regulations (EIR)
exceptions relevant to research data
• The FAQ
• Main information sources
• Take-home message…
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3. Background
• “Climategate”
– UEA/CRU FoI case resolved against UEA by Information
Commissioner
– QUB Tree Ring data FoI/EIR case resolved against QUB
– Times Higher article by Hannah Fearn
• FoI guidance
– Much dates from around the time of introduction of FoI
– Much is oriented to Records Managers
– None for researchers
• JISC commissioned a FAQ on FoI for research data!
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4. Comment…
• The UEA case was not for research data, but for
information about and communications by the
researchers
• The QUB case was eventually resolved under
Environmental Information Regulations, not Freedom
of Information, and aspects related to procedural
issues. It is NOT a precedent…
– (generally speaking, FoI Decisions are Particulars rather
than Universals!)
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5. The legislation…
• Freedom of Information Act 2000.
http://www.legislation.gov.uk/ukpga/2000/36/introduction
– Applies in UK except Scotland
• Freedom of Information (Scotland) Act 2002.
http://www.legislation.gov.uk/asp/2002/13/introduction
• The Environmental Information Regulations 2004.
http://www.legislation.gov.uk/uksi/2004/3391/contents/made
– Applies in UK except Scotland
• The Environmental Information (Scotland) Regulations 2004.
http://www.legislation.gov.uk/ssi/2004/520/contents/made
• All came into force 1 January 2005
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6. Summary
• Public right to know information held by public
authorities
• Must provide response within 20 working days
– Can (or must) refuse if exemption (FoI) or exception (EIR)
applies
– May (or may not) have to confirm existence of the
information
– Otherwise provide the requested information
• The details of exemptions/exceptions are critical!
– Always involve your FoI Practioner!
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7. Extracts from notes of a round table
meeting between HE Sector and ICO
(29 Sept 2010)
“There is no definition of ‘Research data’ currently in the law. The Muir Russell
report encourages the ICO to look at the US example in this area, including
the ‘Shelby amendment’. … Currently, any information held by a university
(including laboratory notebooks, simulations, etc.) is subject to FOIA/EIR.”
“The US ‘Shelby Amendment’ in 1998 required all data produced under federally
funded research to be made available under the US Freedom of Information
Act. After discussion with the scientific community, the final guidelines gave a
precise definition of ‘Research data’ 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 ICO acknowledged that further work needed to be done around
understanding IPR as it resides in research data…”
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8. Extracts from notes continued
“The law assumes that information being released under
FOIA and EIR is going into the public domain, so the
identity of the individual requesting the information is not
pertinent to any decision around release of information.
Information released under the FOIA or EIR is subject to
and protected by existing Copyright laws.”
• Is that not a contradiction?
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9. Extracts from notes continued
“The role and use of research data:
• The public has an interest in universities contributing to
the UK’s economic and reputational standing globally.
Open data‐sharing at too early a stage of research could
dissuade international collaborators from working with UK
colleagues, which would weaken UK research and UK plc.”
• Grounds for “prejudice to effective public affairs”
exemption?
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10. How many requests for research
data?
• Recorded requests are very rare (but increasing)
• Asked UKHE members of RLUK plus Bath University
– 24 HEIs; 3 did not respond or give enough information!
– 21 responses
• Over 3+ years (2007 to mid 2010), 40 recorded
requests for research data
– Less than 2 per HEI over 3+ years
• Comparatively, such HEIs currently receive o(100)+
FoI/EIR requests per year!
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11. Cambridge
reported 0
FoI requests
for research
data Request distribution
FoI/EIR research data requests, 3+ years
12
10
8
6
Frequency
4
2
0
0 2 4 6 8 10
Number of requests per HEI
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12. Increase in research data requests
Research data requests in 11 HEIs
• 11 HEIs provided data by
18
year
16
• 2010 is to around August
14
– (I.e. just over half the year)
12
10
8
6
Number of requests
4
2
0
2006 2007 2008 2009 2010 2011
Year
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13. Implications for costs
• Most researchers are still extremely unlikely to have their data
requested under FoI or EIR
• The risk probably increases greatly in controversial areas such
as climate research, stem cells, animal testing etc
• Community norms currently discourage researchers from tit-for-
tat FoI requests
• If you get a FoI (or EIR) request, you MUST take it seriously,
and get advice from your FoI Practitioner ASAP
• Defending against a FoI/EIR request can take significant
knowledge and resources. You will have to stay involved.
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14. Benefits of FoI/EIR
• Community norms suggest NOT using the legislation
to obtain your competitors’ data before publication!
• Requests could (perhaps should) be used to obtain
data where there is doubt about published findings,
or where data are not being properly deposited
• FoI may encourage Open Data approaches (where
applicable), which might support better research…
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15. Useful FoI exemptions for research
data?
• Available elsewhere
• Information requested is intended for publication
– Scotland: in 12 weeks
– Rest of the UK, no limit
• Research (Scotland only)
– Information gathered in the course of research
– Research will lead to a report
• Prejudice to public affairs???
• Health & Safety
• Personal data
• Provided in confidence (could be sued if disclosed)
• Commercial interest (must show harm if disclosed)???
• Excessive cost
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16. Intended for future publication…
• Most likely exemption outside Scotland
• Limited:
– Intention to publish must exist when the request is made
– Timescale of publication irrelevant (except 12 weeks from
date of request in Scotland)
– Intention must be to publish the information requested, not
simply an article based on the information…
• So if you have a policy to publish your research data
later, eg at the end of your research, then this
exemption may apply! Open Data might help prevent
premature disclosure…
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17. Useful EIR Exceptions for research
data?
• Personal data
• Incomplete data
• Internal communications
• Intellectual property
• Confidentiality
• Interests of the environment
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18. Mind the PIT
• Many exemptions/exceptions are subject to a Public
Interest Test…
• General presumption is in favour of disclosure,
unless the public interest is better served by refusal
– Could be tough in controversial areas of public debate?
– Can argue that research should be completed before data
can safely be released?
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19. Sources of information
• JISC Legal
– http://www.jisclegal.ac.uk/LegalAreas/FreedomofInformation.aspx
• JISC InfoNet
– http://www.jiscinfonet.ac.uk/foi
• Information Commissioners
– Information Commissioner’s Office
• http://www.ico.gov.uk/
– Scottish Information Commissioner
• http://www.itspublicknowledge.info/
• Ministry of Justice
– http://www.justice.gov.uk/guidance/freedom-of-information.htm
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20. The Research Data FoI FAQ
• FAQ consultation until 12 November 2010
– Print version draft (shortened)
• http://www.jisc.ac.uk/media/documents/publications/programme/2010/foiresearchdata.pdf
– Web version (longer):
• http://www.jisc.ac.uk/publications/programmerelated/2010/foiresearchdata.aspx
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22. Take home messages
• If you get a request, always consult your FoI Practitioner ASAP
– Management: listen to your FoI Practitioners
• Outwith Scotland, a policy always to publish your data may help to
protect them until the time is right
c.rusbridge@gmail.com
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