University fund raising ruled NOT a “commercial activity”

Would you let this man give you £2.5m?

Although my instincts as a journalist mean I am reluctant to side with public authorities when they refuse information requests, a recent decision in relation to Oxford University has made me look at things from the other side of the fence.

The Information Commissioner’s decision notice makes what I consider an incredible assault upon the protection of S.43 (Commercial Interests).

The case relates to a £2.5million donation given to Oxford University by Hong Kong entrepreneur Dr Stanley Ho to set up a new University Lecturership in Chinese History.

A request was made for information from the University’s Donations Acceptance Review Committee (DARC) held on the suitability of the donation from a man otherwise known as “The King of Gambling” and who according to Wikipedia is Bruce Lee’s cousin. [link]

At first the University just gave the applicant standard material on how it considers donations and did not release the specific minutes of the meetings it had when it was considering Dr Ho’s proposed gift.

Eventually the University said the information in question – its internal discussions about the suitability of Dr Ho as a benefactor – were exempt from disclosure as they were subject to S.43 and S.40 (Personal Information).

In relation to S.43 the University claimed to release information would be a deterrent to other potential donors and so had the likelihood of prejudicing its commercial interests.

But, and some might think this surprising, the Information Commissioner said the S.43 exemption was not even relevant to the issue. The decision notice stated that fund raising for the University was NOT a commercial activity and therefore the information could not be protected by the exemption.

Josie Ho, the benefactor's actress daughter

The Commissioner said: “In the Commissioner’s view a commercial interest relates to a person’s ability to participate competitively in a commercial activity, i.e. the purchase and sale of goods and services. The University is, broadly speaking, not a profit making organisation, the provision of higher education as a public service (albeit for a fee) is its underlying motive. Moreover, the services are paid for out of the public purse and supplemented by private donors. In providing higher education, the University’s survival is not dependant on its ability to generate its own funding and therefore the need to be commercially competitive is not a paramount consideration in the sense one would expect of a privately funded organisation.

“The release of the information in this case may or may not affect the University’s ability to raise future funds, but this is not a commercial activity albeit that it may be a financial interest. In view of this the Commissioner does not consider the applicable interests to fall within section 43 and therefore he has concluded that the exemption was incorrectly relied upon by the University to refuse access to the information requested. In light of this conclusion it is not necessary to further consider the nature of the prejudice in this case or the likelihood of it occurring.”

Bruce Lee. Stanley Ho's cousin?

The S.40 arguments were also turned down by the Commissioner. He stated that much of the information was already in the public domain [link] and that Dr Ho could not have had an expectation of privacy when the academic post funded by his donation was to be named after him.

Just like the recent case I blogged about in relation to Dumfries and Galloway Police [What became of the drink-drive policemen...] the Commissioner had to rule if the disclosure of the information was for a “legitimate interest”, was it “necessary” and would it not cause “prejudice” to the rights of the data subject.

Like the policemen case the Information Commissioner ruled that S.40 did not provide protection. Some of the key factors were the panel were assessing Dr Ho mainly on the basis on material in front of it that was already in the public domain.

In summary the Commissioner said: “The Commissioner recognises that the withheld information itself is not in the public domain and that disclosure would reveal exactly what the University considered when vetting the donation. In the Commissioner’s view revealing which aspects of publicly available material the University opted to use would not result in unwarranted prejudice to the donor’s rights and freedoms. Nor does he think that revealing the material that was internally generated by the University rather than obtained from public sources would have this effect. In particular he does not consider such information to be particularly free and frank or to reveal anything that would be detrimental to the donor.”

You can see the full decision notice here [link] and I have also asked for the material the University has been asked to disclose on WhatDoTheyKnow . However, I wouldn’t hold your breath as I imagine there are sure to be a few people prepared to challenge the Commissioner’s somewhat strict interpretation of what is commercial activity.

UPDATE: 16.9.09. Not unexpectedly the University refuse to release the information and state they are lodging an appeal at the Tribunal.