Wednesday, December 09, 2009

Tribunal ruling on FOI request for university course materials

The Information Tribunal has dismissed an appeal by the University of Central Lancashire against a decision by the Information Commissioner ordering the disclosure of course materials given to undergraduates on the University's BSc in Homeopathic Medicine.

The Tribunal found that the exemption for prejudice to commercial interests in s.43(2) of the FOI Act was engaged, thereby rejecting the Commissioner's view that the interests the University sought to protect were financial but not commercial:
We do not consider that the fundamentally charitable character of a university means that it should have no commercial interests. A body which depends on student fees to remain solvent has a commercial interest in maintaining the assets upon which the recruitment of students depends. Moreover, we accept on the evidence that UCLAN operates in competition with other institutions of higher education in seeking to sell its products, namely undergraduate courses, to potential students.
However, it was not persuaded that disclosure of the information was likely to prejudice to the University's commercial interests:
The starting point is the absence of evidence that disclosure has affected recruitment where it has taken place, though the Tribunal accepts that this has occurred only rarely and partially. More significant, in the case of this course, is the exemption of the body of case histories, without which, it seems to us, the material lacks empirical support. Any competitor would need to obtain such material before a comparable qualification could be offered, which suggests that the “head start” that innovation should earn, ought not to be significantly eroded.
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.
Although not strictly necessary, the Tribunal nevertheless considered the balance of public interest and found the public interest favoured disclosure of the information:
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.
The University also claimed the information was exempt under s.36(2)(c) on the basis that disclosure would provoke a disruptive volume of requests for comparable material relating to a large number of other courses. The Tribunal found that the opinion of the University's Vice-Chancellor as the qualified person under s.36(2) was neither reasonable in substance nor reasonably arrived at:
We regard the claim of disruption and consequent expense resulting from a flood of similar requests prompted by disclosure of this information as tenuous. Moreover, if such requests were likely, such an argument runs counter to the fundamental philosophy of FOIA, assuming them to be made in good faith. It amounts to saying: if we comply with this request we shall have to comply with a mass of others.
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.
The Tribunal's decision is here.

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