Freedom Of Information Act Requests – The Research Exemption

Under Section 1(1) of the Freedom of Information Act 2000 (FOIA), individuals can request information held by public authorities. Individuals are entitled to confirmation of whether the information requested is held, and if so, to be provided with copies of this information.

Part II of the FOIA sets out what information public authorities do not need to provide following receipt of a FOIA request. The exemption relevant to this case is set out within Section 22A of the FOIA. This relates to information held by a public authority that has been obtained in the course of or derived from a programme of research. A public authority is not required to provide this information if:

The exemption under Section 22A of the FOIA is a qualified exemption meaning, a public authority can only withhold the information if the public interest in maintaining the exemption outweighs the public interest in disclosing it.

Stead v Information Commissioner [2024] UKFTT 1167 (GRC)

Background

The Appellant requested information from the University of York regarding a report titled “Safe to Speak Up?” by Dr Anna Bull. This request was made in accordance with Section 1(1) of the FOIA.

The University replied to this request and confirmed that it held the information within the scope of the Appellant’s request but considered it exempt from disclosure in accordance with Section 22A of the FOIA. They argued that as the information was part of an ongoing research programme, its premature disclosure would likely prejudice the University’s interests. They also conducted a public interest test and determined that there was a greater public interest in withholding the information than disclosing it.

Unhappy with this response, the Appellant filed a complaint with the Information Commissioner’s Office (ICO). On 5 March 2024, the ICO issued a decision notice in relation to the complaint and agreed with the University’s decision. The Appellant appealed the decision notice to the First-Tier Tribunal.

The Appellant submitted that he had requested the information to understand the underlying design of the report and the programme. He felt that as the report had already been published and was already subject to scrutiny, to disclose the information surrounding this report would not prejudice any further research or findings. One of the key points raised by the Appellant in his appeal was that he felt that it was in the public interest for the information to be released as he believed that there was a huge gender imbalance in the report’s sample that needed to be justified by the researcher.

The Appellant argued that for Section 22A of the FOIA to be engaged, the public authority needs to give specific examples of the adverse effect on the research if the disclosure were to take place.

The Tribunal’s decision

The Tribunal disagreed with the Appellant’s argument and made it clear that for Section 22A of the FOIA exemption to be engaged, the public authority must identify who or what would likely be prejudiced and why. The Tribunal was satisfied that the University had done this by identifying that their own interests would be potentially damaged.

The Tribunal agreed with the University’s analysis and determined that the University’s interests would likely be prejudiced if they were to disclose the information. The Tribunal therefore upheld the ICO’s decision notice and the appeal was dismissed.

In reaching this decision, the Tribunal gave careful consideration to the fact that the programme of research would soon be coming to an end and the University had stated its intention to publish other academic outputs by the end of 2024 in any event.

Comment

A request under the FOIA can be a useful tool to obtain information from public authorities if done correctly. It is however important to keep in mind that it does not give an automatic right to any and all information. There are exemptions that can apply. This case is a useful summary of the exemption under Section 22A of the FOIA and how it can be applied by a public authority.