1. February 2011Chris Rusbridge1 Frequently-asked questions on Freedom of Information and Environmental Information Regulations Requests for Research Data

2. February 2011Chris Rusbridge2 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…

3. February 2011Chris Rusbridge3 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!

4. February 2011Chris Rusbridge4 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!)

5. February 2011Chris Rusbridge5 The legislation… Freedom of Information Act 2000. http://www.legislation.gov.uk/ukpga/2000/36/introduction 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 http://www.legislation.gov.uk/asp/2002/13/introduction The Environmental Information Regulations 2004. http://www.legislation.gov.uk/uksi/2004/3391/contents/made 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 http://www.legislation.gov.uk/ssi/2004/520/contents/made All came into force 1 January 2005

6. February 2011Chris Rusbridge6 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!

7. February 2011Chris Rusbridge7 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 …”

8. February 2011Chris Rusbridge8 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?

9. February 2011Chris Rusbridge9 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?

10. February 2011Chris Rusbridge10 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!

11. February 2011Chris Rusbridge11 Request distribution Cambridge reported 0 FoI requests for research data

12. February 2011Chris Rusbridge12 Increase in research data requests 11 HEIs provided data by year 2010 is to around August –(I.e. just over half the year)

13. February 2011Chris Rusbridge13 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.

14. February 2011Chris Rusbridge14 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…

15. February 2011Chris Rusbridge15 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

16. February 2011Chris Rusbridge16 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…

17. February 2011Chris Rusbridge17 Useful EIR Exceptions for research data? Personal data Incomplete data Internal communications Intellectual property Confidentiality Interests of the environment

18. February 2011Chris Rusbridge18 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?

19. February 2011Chris Rusbridge19 Sources of information JISC Legal –http://www.jisclegal.ac.uk/LegalAreas/FreedomofInformation.aspxhttp://www.jisclegal.ac.uk/LegalAreas/FreedomofInformation.aspx JISC InfoNet –http://www.jiscinfonet.ac.uk/foihttp://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.htmhttp://www.justice.gov.uk/guidance/freedom-of-information.htm

20. February 2011Chris Rusbridge20 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

21. February 2011Chris Rusbridge21

22. February 2011Chris Rusbridge22 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