THE PRICE OF FREEDOM
who advised us that we had to respond fully to the request by either providing the information or explaining why we should not. The latter involved careful study of the Act, consultation with our funder, a detailed audit of all the many files we held (the study in question has been going for ten years with multiple stages of fieldwork) and an assessment of whether or not it was appropriate and responsible to release the data. We assessed whether or not each item was exempt from the act under provisions such as personal data, confidentiality, commercial interests and data intended for future publication. This involved weeks of work, and resulted in a massive return to Clifford Chance comprising a detailed cover letter and fourteen separate attachments – over 60 pages in total – plus copies of three publications.
In essence, while we provided some
methodological information and supplied a selection of publications that had emerged from the research through normal peer-reviewed academic channels, our response was that the data themselves were provided to us in confidence by young people and disclosure would breach our duty of confidence to those young people. Furthermore, disclosure of the data would prejudice our interests as a research unit dependent on external grant funding and future publication of the research. Clifford Chance challenged our response and the University was therefore required to undertake an internal review: a Deputy Principal had to examine our response in detail and check we had done everything we should according to the Act. This took several more days of work. The University’s review upheld our initial response and so everything then had to go to the Scottish Information Commissioner for adjudication. His response came back in July 2010 – some nine months after the initial request. It rejected the Clifford Chance request because it had not disclosed the identity of its client (PMI). We need not have bothered with our exhaustive (and exhausting) response because Clifford Chance
had failed to notice this key difference between Scottish and English legislation. Unabashed by this error, two months later PMI declared itself, repeated its request and added in another request on a different study. And so the whole process began again. This time we argued that PMI was being vexatious, providing as evidence a dossier showing how it had used FOI legislation around the world to impede public health researchers and policymakers. Again there was an appeal, a review and – after a further nine months – an adjudication from the Commissioner. This time he said that he did not find the claim vexatious and we should rely
“
FOI requests by Philip Morris International through law firm Clifford Chance created weeks of work for Anne Marie MacKintosh, and Gerard Hastings and Linda Bauld (pictured above left)
The right to know has to
be balanced with the right to confidentiality
on other exemptions in the legislation for our response which, following further meetings with senior officers and lawyers, we duly did. And that’s where we are today – awaiting another nine months of appeal, review and adjudication. The stress of all this is considerable: we are not lawyers and, like most civilians, find the law abstruse and the overt threat of serious punishment extremely disconcerting. Furthermore, while we are part of a university – and hence a public body under FOI legislation – we are in reality a small academic research unit entirely funded by external grants. This funding operates on a tightly costed
”
project-by-project basis; the weeks of work we have put into this FOI process have inevitably been done at the expense of our day jobs. It is worth remembering that as academics, a key part of our day job is to disseminate our research through all the normal, properly policed channels. Ironically then, in this case, FOI is actually hindering public access to information. To add to the irony, the two projects PMI are chasing are funded by a cancer charity. If we had conducted our research as employees of that charity, rather than of a university, we would be untouched by FOI. This is because Parliament realised that the onerous administrative burden of FOI had the potential to decimate the third sector. In the last two years we have learnt the hard way that the same threat now looms over academic research. n
i
Gerard Hastings, Anne Marie MacKintosh and Linda Bauld are staff at the Institute for Social Marketing (ISM) and the Centre for Tobacco Control Research, University of Stirling and the Open University. ISM and the Centre for Tobacco Control Research are part of the UK Centre for Tobacco Control Studies, a UKCRC Centre for Public Health Excellence, part funded by the ESRC
Web
www.management.stir.ac.uk Web
www.ukctcs.org
AUTUMN 2011 SOCIETY NOW 15
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