Academic predicted corporate use of FOI to access academic research data
1 September 2011
Reports in the media (1 Sept 2011) suggest that Philip Morris International, which makes Marlboro cigarettes, is seeking to gain access to Stirling university's centre for tobacco control research data on thousands of children who are smokers, revealing their attitudes to smoking and reactions to packaging and advertising, through the UK's Freedom of Information legislation. This corporate use of FOI law was one of several outcomes predicted by Andrew Charlesworth, Reader in IT law at the University of Bristol Law School, in a paper delivered at the Society for Computers and Law Policy Forum in September last year.
The curent approach to FOI/EIR in the UK seems to regard university research data as little different to council spending decisions, MP's expenses, or Vice Chancellors' salaries. This demonstrates a grossly simplified understanding of the rationales of FOI, and one that manages to both misunderstand and devalue the concept of the 'public interest'.
In the article Charlesworth suggested that the Freedom of Information legislation and the Information Commissioners' current interpretation of it, "risked causing significant damage to the research environment for which UK universities are justly famed. This risk arose from the failure of the legislation to distinguish adequately between universities' operational information, and information in the form of data that university researchers generate in the course of their research."
He noted that in the United States, traditionally a bastion of Freedom of Information, academic research data is specifically protected against FOI requests:
"Only published data is covered, with 'published' meaning an appearance in a peer-reviewed scientific or technical journal, and/or its use by a federal agency in support of a policy or law: drafts of papers, grant applications, other preliminary information, e-mail, personal notes etc are excluded. FOI requests can be denied if the research affects national security, or exposes proprietary/commercial data, trade secrets, medical and personnel records, law enforcement information, and geological data. Crucially, the [law] does not require researchers to make data publicly available while their research is still ongoing. "
Charlesworth argues that far from benefiting the public interest, exposing academic research data, as opposed to completed publications, to FOI requests would:
It is striking that US politicians, despite the attraction of playing to ... the interests of some extremely well-funded and influential commercial lobbies, in the end shied away from imposing such an overhead on US universities
* Reduce academic freedom - concerted targeting of researchers conducting research into 'controversial' topics, and their institutions, by third parties using FOI requests would be a disincentive for university researchers to engage with controversial areas of research, and a rationale for university managers to avoid hiring researchers working in such areas, or to seek to dissuade researchers from following certain lines of research (access to the mechanisms of the UK FOI regime is not restricted to UK citizens)
* Damage the commercial interest of universities - third parties could use FOI requests to obtain the benefits of research without sharing in the costs.
* Stifle meaningful debate on important issues - third parties could use FOI requests to obtain information with which to pre-emptively attack, or attempt to discredit, lines of research which might be damaging to vested interests.
He notes that "The importance of [academic] autonomy becomes apparent when one considers how groundbreaking research, such as Sir Richard Doll's research linking smoking to health problems or Herbert Needleman's research into the neurodevelopmental damage caused by lead poisoning, might have fared had the tobacco and lead industries respectively been able to subject those researchers and their teams to repeated FOI requests in the manner currently available under the UK FOIA/EIR regime."