JISC Legal provides a section on Freedom of Information, including an “Essentials” document[i], and other publications. JISC InfoNet also provides some information on FoI, mainly from a Records Management perspective. They also have a useful guide to managing research records[ii].

JISC is also running a programme on managing research data that may point to further useful information[iii]. 

You may also find useful information through the Information Commissioner’s Office, which has a useful FAQ for organisations[iv]. Guidance on exemptions is provided by the Ministry of Justice[v]. The Scottish Information Commissioner has a good set of Briefings and Guidance[vi]. These include a briefing on the future publication and research exemptions under the Scottish Act, and the incomplete information exception under EIR[vii].

 [ii] JISC InfoNet. (2007). Guidance on Managing Research Records. Newcastle. Retrieved from http://www.jiscinfonet.ac.uk/partnerships/records-retention-he/managing-research-records.

 [iii] See the programme website at http://www.jisc.ac.uk/whatwedo/programmes/mrd.aspx

[iv] See http://www.ico.gov.uk/Global/faqs/freedom_of_information_for_organisations.aspx

[v] See http://www.justice.gov.uk/guidance/foi-exemptions-guidance.htm

[vi] See http://www.itspublicknowledge.info/Law/FOISA-EIRsGuidance/Briefings.asp

[vii] See http://www.itspublicknowledge.info/Law/FOISA-EIRsGuidance/section27/Section27.asp

Where another party holds information on behalf of your institution, it may still be holding that information. An example of this would be if a sub-contractor holds it, or a wholly owned company. Perhaps a more common example in research would be information in an external service such as Survey Monkey, emails in Hotmail, GMail etc, or information temporarily at a partner institution.  As this information belongs to a public authority it will be subject to the provisions of the Act.

This is the point at which you can expect comments about good records management (and there’s almost certainly institutional guidance that is worth a read). But you are a researcher so you already know you need to be well-organised as far as your information and data are concerned, don’t you? (See elsewhere about data management plans.)

You should remember however that some digital data formats can contain information that is not visible but can still be extracted, so you must take care not to supply information inadvertently that you should not provide. For this reason (and others), some FoI officers make a habit of supplying information in PDF format, even though this makes it harder for the requester to make use of the information.

However, the cost of compensating for poor records management cannot be included in the cost calculation. So if the fault is yours, you may have to do the work anyway. It would be far better for you to have organised the data well in the first place, which incidentally will also help your research.

In addition, even if it would be too expensive to provide the data as requested, your institution has an obligation to help the requester re-frame the request in a way that could be satisfied.

There is no “appropriate limit” to the cost of complying with requests for environmental information. However, EIR Regulation 8 provides for the recovery of “reasonable” costs.

Since neither special interest groups nor journalists are necessarily renowned for their impartiality (especially when dealing with controversial topics), if information does have to be released it may be worth ensuring it is comprehensive enough to reduce the chance of misinterpretations. This might imply releasing additional information (background, explanations, interpretations, caveats etc) that will make it harder to selectively misinterpret the requested information.

Using legal measures to force premature disclosure of information goes against the community norms of science and research, so it is comparatively less likely that you will receive requests from competitors.

1. The extent of copyright if the information is data (copyright may not be applicable to all factual data, although other IPRs such as the Database Right may apply).
2. The ownership of any IPRs, particularly where research collaborations are involved (and doubly so if the collaborations are international, as data can have different copyright status in different jurisdictions).

It is important to make ownership rights to any information including research data explicit as part of a Data Management Plan or Collaboration Agreement prior to the research starting. This is particularly important for collaborations, whether national or international.

As well as the law, “community norms” still apply. In research within an academic context, these norms mean that any publication based in part on the use of data from others should acknowledge and properly cite those data.

Both sets of regulations (UK and Scotland) quote definitions from the relevant European Directive:

“(a) the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms, and the interaction among these elements;

“(b) factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment referred to in (a);

“(c) measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in (a) and (b) as well as measures or activities designed to protect those elements;

“(d) reports on the implementation of environmental legislation;

“(e) cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in (c); and

“(f) the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are or may be affected by the state of the elements of the environment referred to in (a) or, through those elements, by any of the matters referred to in (b) and (c)”

If the information fits the definitions, then the Environmental Information Regulations apply.

Since large amounts of public funds are spent on research, there is arguably a public interest in the research being successful, which may require some information to be kept confidential until a publication is ready. In the highly competitive environment under which research operates, this could be a factor in a public interest test. But other factors relating to the specific case would also apply, and the decision could go either way.

There is a FoI exemption from the duty to provide information that is intended for future publication. The intention must have existed before the request was received. However, under Scottish FoI there must be a plan to publish within 12 weeks of the request date; this period is not defined in the rest of the UK. This exemption may be of limited use as there must be a plan to publish the information requested, not simply an article based on the information.

However, if you or your organisation have a standing rule to publish all research data once the research is completed, then this exemption might be available. So paradoxically a plan to publish later will protect your data now.

There is an extremely important research exemption under Scottish FoI (but not under FoI in the rest of the UK) for information obtained in the course of a programme of research (where there is an expectation of a report of that research being published, whether or not it includes the information requested). However for the exemption to apply, early disclosure must substantially prejudice the research programme, participants or the institution.

The requester could be anyone: a competitor, a member of the public, someone hostile to your research, a research funder, a member of your Ethics Committee, or anyone else anywhere in the world.

It is likely however, that a successful use of the exemption would need to be carefully argued. Your FoI Practitioner may need to take advice.

Several exemptions may come into play here. There is an exemption relating to information that is reasonably available to the requester, so if the supplier of your information makes it available, it is exempt as far as you are concerned.

It may be worth noting that many research collaborations involving multiple institutions will result in the exchange of research data under informal arrangements, so the research data could be at risk of disclosure. A formal collaboration or consortium agreement covering confidentiality of exchanged data could be helpful. This may be particularly important in cross-border collaborations, where different FoI laws may apply in some parts of the project.

You may also have to consult the data supplier to determine if they would be willing for the information to be disclosed. The exact terms of the contract or licence agreement may be critical here; always keep copies of such agreements, and treat them as records.

A high profile case relating to climate and tree ring data (environmental information) was considered by the Information Commissioner’s Office, and in the end the data had to be provided (note that the relevant Decision[i] shows that particular circumstances contributed to the outcome). While raw research data may attract a duty of confidence at law, you will have to clearly demonstrate that there is a third party to whom this duty is owed.  Your institution cannot owe a duty of confidence to itself.

Because redactions must be done carefully, always consult your FoI Practitioner if you are supplying a document, dataset or file with some information redacted.

If the requester is not the subject of the personal data, the exemptions become more complicated, although our “general rule” above is likely to apply. Always discuss such cases with your FoI Practitioner and/or Data Protection Officer. However, note that a modified public interest test applies (See Q12), but in this case there is not a presumption in favour of dislosure. Any decision is also likely to be influenced by the right to privacy found in Article 8 of the Human Rights Act.

The exceptions under EIR are differently worded but similar in effect.

It is well to remember that some kinds of anonymised, summary, tabular or statistical information that do not directly identify individuals may, when combined with other information, disclose the identity of those individuals. Specialist guidance is available from the Office of National Statistics   and Department of Health. Nevertheless, where there is personal information in a document, but that information is not the information requested, it might be possible to remove the personal information and fulfil the request (this process is known as redaction).  Again, under such circumstances you should always consult your FoI Practitioner.

First of all, FoI/EIR requests should always be acknowledged to the requester, so that both parties are clear that it has been received.

Secondly, there is likely to be an obligation to confirm or deny whether your institution holds the data (although in some circumstances there are exemptions to this, too).

Thirdly, although there may be an exemption or exception that seems to apply, a public interest test may still be required. This might mean that disclosure is still required, in the public interest.

Fourthly, if your institution is planning to refuse to supply the information, a refusal notice must be provided, with reasons, within the 20-day limit.

After receiving a refusal notice, a requester has the right to ask for an internal review of the decision. If the internal review goes against them, they may ask the relevant Information Commissioner for a ruling, and if that goes against them they may appeal further.

However, the exemptions are complex and subject to interpretation as a result of decisions by the Information Commissioners. Always discuss a request with your FoI Practitioner.

Where your research data are required to be published in a data repository on completion of the project, e.g. with the Economic and Social Data Service (ESDS) or an institutional data repository, this future publication might exempt you from making the data available before that point. 

As we’ve mentioned before, on receiving a request, you should contact your local FoI Practitioner without delay and discuss the particular circumstances with them. In most cases, your institution has to confirm or deny whether it holds the information, and supply it or a refusal notice, within the 20-day time limit. There may need to be negotiation on the form of provision of the information.

If one or more FOI ‘exemptions’ (or EIR ‘exceptions’) might be engaged, we strongly recommend that your FoI Practitioner take over correspondence with the requester. For most exemptions/exceptions, you may still have to supply the information unless a public interest test (see Q13) supports withholding, in which case a refusal notice must be issued. The requester can challenge this via an internal review at your institution. If that also supports non-disclosure, the requester can apply to the relevant Information Commissioner to review the decision, and even appeal to an information tribunal.

It is highly advisable to keep a written record of all communications between you or your FoI Practitioner and the requester, in order to be able to substantiate your position should a dispute arise further along the line.

Some supporters of Open Science would make all their data publicly available as (or very soon after) they are created (eg see the Panton Principles for Open Data in Science[i]). Paradoxically, having a plan to publish your data (say at the end of a research project) may help with exemptions to providing it prematurely.

Research exists that shows a citation advantage for researchers who make their data open (see Piwowar, Day and Fridsma, (2007)[ii]).

Research funders and journal editors are beginning to set policies in favour of making data available. Usually this applies to data from completed research, or supporting findings in publications. This is part of the general idea that science (and indeed all research) should be verifiable by others.

[ii] Piwowar, H., Day, R. S., & Fridsma, D. B. (2007). Sharing detailed research data is associated with increased citation rate. PLoS ONE, 2(3), e308. doi: 10.1371/journal.pone.0000308.

The longer answer will depend on other questions, such as whether the request is for environmental information, whether your institution is in Scotland or the rest of the UK, and various detailed questions which will determine whether particular exemptions (confusingly called exceptions in EIR) are “engaged”, ie are applicable as grounds for refusing a request.

But in all cases where you are in any doubt, or wish not to supply the information, you should contact your FoI Practitioner as soon as possible.

We assume that you are a researcher who works for, or with, or in, a university or research institution, and you are concerned about requests for your research data under either Freedom of Information legislation, or Environmental Information Regulations, all of which came into force in 2005. These both differ slightly in Scotland versus the rest of the UK (the EIR differences are not significant for this document).

We also assume there are one or more FoI Practitioners in your institution. There will usually be a central Freedom of Information Office (sometimes part of the University Secretary’s or Registrar’s office, sometimes a Records Management Office). These officers are important and will be crucial in responding to any request.

You should ALWAYS involve a FoI Practitioner unless you are simply supplying information in response to a request as part of “business as usual”. Of course, we assume in the latter case that you will have taken due note of any constraints imposed by your ethical clearance, Data Protection etc before agreeing to release any data.

Remember, this FAQ is not advice; it is simply guidance aiming to help you have a better-informed discussion with your requester or FoI Practitioner, or to consider steps you might take in advance.