QED LAW

In common with all the other universities of the UK, Anglia Ruskin University was asked – under the terms of the Freedom of Information Act – to provide copies of its recent examination papers in criminal law. The request was made as part of comparative research into the format and content of criminal law exams nationally.

Anglia has declined to release the information. It has relied on s 43 of the Act which provides that information need not be provided if disclosure would ‘prejudice the commercial interests of any person including the public authority’.

Section 17 of the Act states that an authority relying on this exemption is obliged to explain why it applies. It must give reasons. Anglia Ruskin gives none. It merely states that education is its ‘product’ and that:’therefore… providing this information prejudices the commercial interests of the University.’

The logic of this is unclear.

How does it follow that, because the university is a provider of education, revealing information about its past exams would prejudice its commercial interests ? Is the implication that the examination papers themselves are also commercial products ?

Clearly if a requester were to publish the papers or exploit them commercially they would be in breach of the university’s copyright. But that is an entirely separate issue from the question of whether the information should be provided under the Act. All information released under the Act is subject to copyright. Were a public authority entitled to rely on its copyright as a reason for withholding information the Act would be ineffectual. And, in any case, the Copyright, Designs and Patents Act 1988 permits the publication of brief extracts for the purposes of research for non-commercial purposes, private study, criticism, review and news reporting.

Furthermore, the commercial interests exemption is not an absolute exemption. It is subject to a ‘public interest’ test. That is, even where a public authority is satisfied that the information requested is a trade secret or that disclosing it would prejudice commercial interests it can only decline to provide the information if it believes the public interest in withholding the information outweighs the public interest in disclosing it.

And again s 17 of the Act requires the public authority to give reasons – to explain to a requester why it would not be in the public interest to provide the information. Anglia Ruskin simply says it is not in the public interest to provide the examination papers.

My concern with this approach to the application and interpretation of the exemption sections in the FOI is that it runs counter to the spirit of the legislation. Although they operate in a commercial environment, universities are primarily public authorities, carrying out public functions and largely publicly funded. As such they are accountable to the public for the carrying out of those functions. Why should an interested member of the public – a prospective applicant or an employer for example – be denied information about the approach a university takes to a subject and how students are assessed in respect of it? The bias of the legislation is clearly in favour of disclosure. To exaggerate the commercial interests of the university at the expense of its public functions would stifle accountability. And what reason is there in that ?

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Unlike most universities, Anglia does not have an internal appeals procedure to deal with FOI refusals. It explains that an appeal can be made to the Information Commissioner. Although there is currently 18 months backlog with appeals it is being considered.

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Update: The Open University has also declined to provide its criminal law exam papers relying on s 43. The facts are slightly different. The OU ordinarily makes its exam papers available to the public but it operates its law degree in partnership with the College of Law and the papers belong to the College Рwhich is not a public authority and therefore not subject to the Act. The OU believes that release of the papers would harm the commercial interests of the College -’by placing information in the public domain which is its commercial product’. The OU adds that it is not in the public interest to reveal the information as it would damage the relationship between the OU and the College. Discuss…

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