I’ve been meaning to blog about this particular decision of the Scottish Information Commissioner for a couple of weeks now, but have just not had the time. On 14 March 2013 the Commissioner issued her decision regarding a complaint made to her by Mr Martin Ackroyd in respect of the way in which the University of St. Andrews handled an information request (Decision 42/2013).
The background is set out in paragraphs 1 – 6 of the Commissioner’s decision. Mr Ackroyd requested information in respect of E-mails received by a particular employee of the University. The employee had written an article on an internet blog. The employee later commented on the article alluding to embarrassing E-mails that he had been receiving as a result of the article. It was these E-mails that Mr Ackroyd had requested.
The University argued that it did not hold the information for the purposes of the Freedom of Information (Scotland) Act 2002 (FOISA) stating that it held them on behalf of the employee (thus they would fall outside of the scope of FOISA by virtue of section 3(2)(a)(i) of the Act). In the alternative it argued that even if it did in fact hold the E-mails that they would be exempt from disclosure under sections 38(1)(b) and 36(1) of FOISA. These exemptions relate to personal information and confidentiality respectively.
Mr Ackroyd was dissatisfied with the Universities response and sent a requirement for review to the University. In response the University upheld its original decision with modification. The University still argued that the E-mails were not held for the purposes of FOISA, but if they were they would also be covered by section 30(b)(ii) of FOISA which relates to information which if disclosed would or would likely be to inhibit substantially the free and frank exchange of views for the purposes of deliberation.
Mr Ackroyd remained dissatisfied and sought a decision from the Scottish Information Commissioner pursuant to s.47(1) of FOISA.
The first thing that the Commissioner decided was that at least some of the information held was environmental information within the meaning od Regulation 2 of the Environmental Information (Scotland) Regulations 2004 (EISRs). As a consequence the decision considers both FOISA and the EISRs.
The facts of the request get slightly more complicated. The employee in question had bene the convener of a seminar held at the University and the blog that was written related to that seminar; it was published shortly after. The decision notes that Mr Ackroyd drew attention to a certain comment in the blog piece “indicating that he [the employee] was commenting in his capacity as the convenor of the seminar” (paragraph 28). The decision also records (at paragraph 28) that the employee had commented on the blog and mentioned papers that he (the employee) had written on the subject in question. Mr Ackroyd argued that these two things together (along with other matters dealt with in paragraphs 29-31 of the decision) meant that the employee was acting in his capacity as an employee of the University.
The University argued that the life of an academic is such that the connection between work and private life is so fine and that sometimes they cross over. They argued that an academic might use their association with the university in order to gain some credibility in their private life rather than as an employee of the university. The University also argued that the convention of academic freedom created some independence between the University and its academics. “The University also stated that it (and universities in general) extended to academic communities a relatively high degree of space, freedom and autonomy to engage with academic disciplines and pursuits and, as a result, information may be created which it would not move to claim or exert control over.” (para35)
There are more to the arguments of Mr Ackroyd and the University, but for the sake of brevity and so as to avoid replicating the Commissioner’s decision in full I have not mentioned all the ones referenced in the Commissioner’s decision. They can be read in full in paragraphs 26-38 of the decision.
What did the Commissioner find?
The Commissioner decided that the seminar which had been chaired by the employee was part of the employee’s work at the University (paragraph 43). The Commissioner also decided that the blog post was a continuation of the discourse of the seminar which he had chaired in his capacity as an employee of the University (paragraph 43) and that the employees ongoing involvement in the discussion that arose out of the seminar cannot be separated from the employee’s work at the University (paragraph 44). Despite the personal nature of the e-mails the commissioner decided that they were held by the University for the purposes of FOISA (paragraph 49). Paragraphs 60-62 deal with whether the information was held for the purpose of the EISRs and the commissioner reached the same conclusion as she did in respect of section 3(2)(a)(i) of FOISA (paragraph 62).
The Commissioner then went on to consider the exemptions that the University would have sought to apply had it been the case it held the information (which the Commissioner determined it did). For the reasons set out in paragraphs 51-57 the commissioner found that section 30(b)(ii) of FOISA was not engaged and therefore not relevant. No consideration was given to section 36 as it would appear that the University may have stopped relying on that exemption.
The Commissioner ordered the release of the withheld information to Mr Ackroyd subject to some redactions made by the Commissioner.
Before giving my thoughts on the decision I will note that I have only the Commissioner’s decision to go on. I have not seen the blog or the comments nor have I seen the E-mails in question.
This is an interesting decision and one of importance for the Higher Education sector. The decision explores some of the anomalies in the academic world that do not generally appear in other public authorities; namely the convention of academic freedom. However, the decision could have wider application beyond the Higher Education sector.
Should academics be worried about the impact of the decision? I would suggest that they should not be. It appears clear from the decision that where there is a genuine separation between the work undertaken by an academic on behalf of the University and that undertaken by the academic in a private capacity that the information will not be subject to FOISA.
For example, if an individual gives a lecture to an organisation because they are a specialist in the field and they mention their connection to a University I don’t think anything held on the University’s computer systems (or indeed the academic’s private systems) would become subject to FOISA simply because they establish their credibility by referencing the University at which they work. Only where that lecture was given in the course of the academic’s employment at the University would it become subject to FOISA.
It is clear that the balance between what an academic does privately and what they do as part of their employment at the University is finely balanced. Simply because an academic undertakes work in their spare time and the work is not such that the University would lay claim to it or it was not work which the University had sought the employee to undertake will not meant that it is not subject to FOISA or the EISRs.
It’s certainly an important decision and one that all FOI Officers in Scottish colleges and universities should have tucked away for reference to at a later time; it is not unlikely that similar situations will arise again in the future (especially given the public nature of academics work).