Research on Open Data and Transparency

Freedom of Information and Universities UK: Could it? Should it? Why Should It Worry UKIP?

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Could Universities UK be covered by the FOI Act, as this e-petition asks? I’ll try to answer this, using the old EU joke, to see if it works in theory as well as in practice.

In the UK, universities are covered by FOI (as Vice Chancellors have found out) but UUK is, as of this moment, not. You can’t really ask a body not covered (though this hasn’t stopped people trying). So could and should UUK be covered?

Doubt it…

Most FOI Acts cover ‘public bodies’ and, to very different degrees, private bodies doing work for them. This means legally ‘bodies that appear to be exercising functions of a public nature or who are providing, under contract with a public authority, any service whose provision is a function of that authority.’ Only two Access to Information Acts in the world directly cover private bodies as a whole (South Africa and Nigeria seeing as you asked/need to know in case of some unimaginably obscure pub quiz).

The legal status of UUK looks pretty far from being a public authority. UUK is the ‘voice’ of UK universities made up of the ‘vice-chancellors or principals (executive heads) of universities in the UK’. Legally speaking it is a ‘Company Limited by Guarantee’. This means, according to my brief foray on Wikipedia, it is like a private company but, as pointed out here, ‘a major difference is that it does not have a share capital or any shareholders, but members who control it’.

This status is often used for charities and others to prevent liabilities. According to Wikipedia[1], common types of companies limited by guarantee are:

So, a big fat no in theory?

On a practical level, it takes ages. Gordon Brown (that clever PM who didn’t call snap elections) took two years just to think about who to extend it to. By the time he’d decided and extension was begun, David Cameron (the one who called snap referendums) was in power. A full five years.

Or Could It?

The government can extend the FOI to cover broadly who they want. Section 5 of the Act allows government to re-designate bodies (sorry to get a bit legal), roughly as long as it has a ‘number of definable relationships with public authorities’.

The first actual section 5 extension (in November 2011) designated the Universities and Colleges Admissions Service (UCAS), the Association of Chief Police Officers (ACPO) now known as the National Police Chiefs’ Council (NPCC) and the Financial Ombudsman Service (FOS).

As of May 2018, you’ll be pleased to know, another 15 bodies will be covered including my favourite Independent Monitoring Board The Independent Monitoring Board for the Military Corrective Training Centre and my second favourite development Corporation the Ebbsfleet Development Corporation. The separate Scottish FOI Act has been extended to cover ‘secure accommodation for children and young people, grant-aided schools, independent special schools and Scottish Health Innovations Limited’.

But even if the government want to do it, can they justify it or, to quote George Galloway (rather out of context), are they ‘mad enough to do it?’ A broad moral case to open them up could be made. Many other university bodies in the same ‘regulatory ecosystem’, admittedly of very different legal status, such as UCAS or HEFCE are covered by FOI, as is the Student Loans Company (go on-what are you waiting for?). As the ‘voice of universities’ it also does seem to at least appear to be exercising functions of a public nature’ and has a ‘number of definable relationships with public authorities’. The Public Accounts Committee, among others, has also repeatedly called for FOI to ‘follow public money’ and post-Grenfell there was a further attempt by Private Members’’ Bill to extend FOI.

Even the fact it is a ‘Company Limited by Guarantee’ may not totally exclude it. What’s interesting is that almost all the wikipedia list of examples have been the subject of discussion about extension. In 2009 and again in 2016 (post Kids Company) there was some serious discussion of making charities subject to FOI. Though various investigations have concluded they shouldn’t be, the possibility is still there. Even more fun, Network Rail came to be covered by FOI almost by mistake, when its legal status changed for accounting purposes (you can see what people have been asking here-I now know how many platforms every station in the UK has and the length of all of Reading station’s platforms).

Political parties aren’t covered by FOI in the UK but in some countries, such as Indonesia according to an ongoing discussion, it seems they are. There was a hellish row in India about trying to get Indian political parties covered by their Right to information Act and, seeing as we are talking cricket, pressure to make the Indian Board of Control for Cricket a public body for the purposes of the law.

And so?

Technically, UUK is not covered. For the present, you can ask for ‘material held by a private company “on behalf of” a public authority’. This is very confusing and no one really knows what’s going on but it may mean some UUK material is covered. Moreover, many of the public authorities UUK interacts with, meets and emails-such as all the universities where all the VCs are based, the government departments they work with etc-are covered by FOI.

Even if Theresa May decided, in yet another flush of pointless and futile Brexit distracting incompetent zeal, to get out of the chimney she was in and extend the law (thus robbing yet another Ed Miliband policy), it would take time. One thing to reflect on. The more such bodies are covered, the closer we could get to getting UKIP covered by FOI. Oh, the emails, as America’s new racist in chief would say.

See my piece on VC expenses here and on opening up the private sector. There’s some better legal analysis by FOI man here and a post on wider legal openness developments from Act Now.

[1] Note to my students: don’t ever use or cite Wikipedia for essays. I am doing it ironically.

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