Category Archives: FOI

Follow the Money?

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Calls to extend the Freedom of Information Act (FOIA) and the Freedom of Information (Scotland) Act (FOISA) to private or voluntary bodies performing public functions are often premised on the argument that it is essential for taxpayers to be able to monitor how public money is spent.

Last year Labour MP Grahame Morris introduced a private member’s bill to extend FOI coverage to private health contractors, in part due to the fact that FOI responsibilities no longer follow the ‘public pound.’ In November I attended the Centre for Freedom of Information’s European Conference and listened to Professor Richard Kerley give a compelling talk in which he argued that a simple test should be applied when determining whether bodies should be covered under FOI legislation; again, he proposed that we need to ‘follow the public pound.’

In this post, I question whether the ‘public pound’ justification is really the best one to support the argument that private contractors and voluntary organisations performing public functions should be responsible under FOI. I do, of course, appreciate the need for financial transparency and know that this is one of the best tools that citizens have for holding government to account. Still, I can’t help thinking that this argument reinforces the ‘re-branding’ of citizens as taxpayers, as if we are nothing more than consumers of public services. On a more practical level, I think that following the money would likely result in increased transparency for a narrow range of public services and that many public functions would still remain left out under this formula.

Last month I blogged on the debate over whether universities should be subject to the FOI Act. The University of London’s Chris Cobb argued that in light of the reduced public funding universities now receive, we need to reconsider whether universities should be covered under FOI. He argued that since universities that receive less than 50 percent of income from public sources have already have discretion on whether to follow European procurement rules, the same should apply with regards to FOI responsibilities. This argument demonstrates that focusing too narrowly on how services are funded, rather than the nature of the function they serve, is perhaps not the best strategy when considering whether and how to extend FOI.

Today Scottish Information Commissioner Rosemary Agnew issued a special report that outlined how Section 5 could be better used to extend FOI responsibilities to the wide variety of organisations now responsible for public service delivery. Research commissioned by the SIC’s Office did find that the vast majority of the public do think it is important to be able to hold publicly-funded organisations to account, but that ‘the public interest in who should be covered by the FOI Act goes beyond considerations about the public purse.’ (para 40)

Instead, the report suggested that a rights-based approach, in which rights follow functions, would allow for greater protection of rights over time (paras 66-69). Likewise, a functional approach that focused on the nature of the function performed, as opposed to the institution providing the service, could also be used to preserve information access. Of course, determining what constitutes a ‘function of a public nature’ is not entirely straightforward, but Ministers would be able to exercise their judgment in doing so. The report also suggested a factor based approach (similar to the ‘totality of factors’ approach already in place in several US states) that would take into consideration a number of factors that could help to determine whether a function was public in nature. These include whether the functions are derived from or underpinned by statue, or whether the organisation is taking the place of a public authority by carrying out the function. The emphasis is on the function or the service, rather than the organisation performing it.

Whilst I agree with those who urge FOI responsibilities to follow the ‘public pound,’ I argue that the debate over whether and how to extend FOI needs to go far beyond this financial justification. The debate also needs to take into consideration the nature of the services and the role they play in society.

The Marketplace of Ideas: How does the Commodification of Higher Education affect Freedom of Information?

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Liberalisation. Neoliberalism. Privatisation. Managerialism.

Whichever terms one uses to describe recent phenomena in education, it is clear that the landscape is changing. In the United States, the student loans crisis and the rapid growth of the for-profit education sector have garnered widespread media and political attention. Here in the UK, the introduction of student fees south of the border has been highly controversial, as has the increasing reliance on external partnerships to generate research funding. I can’t address all of these issues at length within this post, but instead want to focus on the recent debate over whether universities should be subject to freedom of information (FOI) legislation. That this debate is even taking place demonstrates the shift towards marketisation and the increasing importance of commercial activity within the modern university.

In the Times Higher Education article, Chris Cobb argued that FOI undermines competitive practices. He reasoned that if universities were included in Schedule 1 of the Act due to the high level of public funding received, then this arrangement needs to be re-examined now that public funding has been reduced and the private sector plays a larger role. Moreover, private companies can make information requests to gather intelligence about university operations or to create mailing lists to be sold for profit. Although the s.43 exemption allows for withholding information if it is likely to prejudice the commercial interests of any party, Cobb argued that savvy requesters are still able to eke out information that harms the university’s competitive standing. His argument is based on the assertion that universities are not public authorities and should not be treated as such under FOI if they are to remain competitive in an international market.

Campaign for Freedom of Information director Maurice Frankel countered this argument, noting that most people appear to be in favour of FOI until if affects them. He listed a number of cases in which FOI legislation has helped to shed light on dubious practices in universities, including boosting marks to increase pass rates and the use of zero-hours contracts for university staff. The latter seems particularly relevant in light of recent stories about the conditions endured by FE lecturers on precarious contracts. Frankel concluded that FOI is important in ensuring accountability and maintaining public trust.

Alice Bell wrote a response in which she detailed her own experiences of trying to obtain information under the FOIA. She wanted to know more about Cambridge University’s collaborative research with Shell, but was refused access to the information she requested as disclosure would have put the University in a “commercially disadvantageous” position. The University went on to explain that due to the reduction in public funding, it needed to diversify its funding sources and therefore must maintain commercial confidentiality to remain competitive.

In order to understand this debate, we need to consider some fundamental questions regarding the nature and value of higher education. Cobb’s argument appears to be based on an understanding of higher education as a private or individual good. In this view, students are consumers in an educational marketplace who must choose which institution is the best investment for their own futures. This way of thinking helps to contribute to the reduction in public expenditure on education, meaning that universities must continue to compete with one another for an ever-shrinking pool of funding. External partnerships can help to bring in more funding, but it means that universities (and departments within universities) become more commercially driven and compelled to operate more like businesses.

The debate over whether or not universities should be subject to FOI is really about the role that universities play in society. In recent decades, we have been encouraged to think of education as an individual good, but should we accept this? Is education not a social good, meant to enhance not just the career prospects of individuals, but also society as a whole through research and teaching? I argue that universities need to subject to FOI, not only to follow the ‘public pound’ or to ensure that workers are treated fairly, but because of the implications of accepting that universities are now businesses. To say that universities should no longer be covered by FOI legislation so that they can remain commercially competitive is to accept the commodification of higher education, but these neoliberal developments can and should be challenged.