Publicly funded research - fair game?

A freedom of information ("FOI") dispute between Stirling University and Philip Morris International ("PMI") raises questions about the extent to which publicly funded research can and should be made available to companies through FOI requests.

Background

Stirling University ("the University") is part of a network of 9 Universities comprising the UK Centre for Tobacco Control Studies. The network carries out studies into smoking behaviour and is funded by the Department of Health and cancer charities. Their research findings are used to inform government policy on tobacco control.

The University carried out a pilot study into the effects of adolescents' reactions to tobacco marketing. The results were used to produce a published report on "Point of Sale Display of Tobacco Products". This research was of obvious significance and interest to PMI, a large tobacco company who produce "Marlboro" cigarettes.

PMI submitted an FOI request to the University, seeking disclosure of the primary research data underpinning the report. This data included interviews with teenagers, which had been anonymised so the participants could not be identified. The teenagers were apparently given assurances by the University that the data would be kept confidential.

The dispute

The University refused the request on the grounds that it was vexatious, arguing that it amounted to harassment of the University, had no serious purpose or value, and would impose a significant burden on the university to respond. PMI successfully appealed this to the Scottish Information Commissioner, who ordered the University to respond substantively to the request.

Recent press reports indicate that the University has again refused to provide the information to PMI, reportedly on the grounds that the costs of compliance would be excessive. In addition, however, the University appears to be concerned about ethical implications of supplying such research to tobacco companies.

FOI and research

This dispute raises interesting questions about the availability of publicly funded academic research to the public, and also the grounds upon which such research results can be withheld.

There are various grounds on which research data could be exempt from disclosure. These include:

Research: Information obtained in the course of / derived from a programme of research is exempt if the programme is continuing with a view to a report of the research being published AND disclosure before the date of publication would be prejudicial to the research programme, its participants or the public body.

Information intended for publication: If the information is intended to be published within twelve weeks of the FOI request being made, and it is reasonable to withhold disclosure until the intended publication date.

Confidentiality: If the public body has a duty to a third party to keep the information confidential, and disclosure of the information would result in a breach of confidence;

Commercial interests: If the information is a trade secret or its disclosure would prejudice the commercial interests of a third party;

Personal data: If the information requested is the personal data of a third party. Broadly speaking, this is data which relates to an individual who can be identified from the data. Information on health is "sensitive personal data".

Health & safety: If disclosure of the information would endanger the physical or mental health or the safety of an individual or a class of individuals;

In each case (apart from personal data) information should only be withheld if the public interest favours not disclosing the information. If the decision is finely balanced, the presumption should be in favour of disclosure.

Commercial implications

The research exemption has no counterpart in English FOI legislation. It was added to the Scottish legislation to safeguard universities from the premature disclosure of incomplete research that had not yet realised any commercial value. There was an apparent recognition by the Scottish Parliament that research is a valuable asset for universities and they must be given an opportunity to realise its value.

It is notable, though, that there are a number of qualifications on the research exemption. The exemption applies only prior to publication of a report on the research, and only where publication is envisaged. Thus, after publication (or possibly if no publication was ever planned) at that stage there is scope for companies to apply to obtain such research results.

Most universities obtain a significant amount of funding from research contracts and the need to preserve this revenue stream, whilst preventing disclosure to their funders' competitors, is obvious. In such cases, the commercial interests/ confidentiality exemptions will often prevent the disclosure of the results of research carried out by a university but paid for by a commercial organisation. However, there is no absolute exemption from such disclosure.

Arguably, though, where research is publicly funded, any member of the public, including companies, should be entitled to access the results. Moreover, disclosure of research results may promote scientific rigour in research. Safeguards are in place, in Scotland at least, to prevent premature disclosure until after research results have been published and thus to allow universities the first bite at the cherry vis-à-vis commercialisation of their research.

It will be interesting to see whether PMI appeal the refusal to provide information. If so, depending on the grounds of refusal, we may see some useful clarification of the scope of the FOI research exemption.

For further information, please contact Alison Bryce.