Uni database to be opened to public scrutiny

The student accommodation didn't quite look like the brochure pictures

A database which holds details on the state of repair of every university building and the cost of upgrading them will be opened up to public inspection following a decision by the Information Commissioner.

The Higher Education Funding Council for England (HEFCE) has failed in a bid to keep the database secret on the basis it was exempt from disclosure under S.41 (breach of confidence) of the Freedom of Information Act.

Following an appeal to the Information Commissioner’s Office (ICO) a decision notice (link) has been issued stating release of the information would not be an actionable breach of confidence.

The appeal was linked to a complex request for information about statistics held on a database by the HEFCE that were provided to it by all Higher Education Institutions in England.

In the database property such as halls of residences, lecture theatres and libraries have been categorised on a sliding scale from Condition A to Condition D. These results are then fed from the institutions to the HEFCE which maintains the database.

The HEFCE said that it could not give the information to the applicant as to do so would be a breach of confidence.

Following a protracted exchange between the ICO and HEFCE the Information Commissioner decided the data had the quality and obligation of confidence but refused to accept that release would result in a detriment to the bodies that supply the statistics.

The HEFCE successfully argued there was an obligation of confidence as its documents sent out to universities and colleges stated: “The Funding Council treat all information they receive from individual institutions as confidential unless it is collected specifically for publication.”

But the HEFCE’s arguments on detriment met with less favour. It claimed release of the data would:

• Undermine its own database as institutions would no longer submit statistics - The ICO said this argument was “tenuous” and he “was not convinced”.
• Individual institutions might find it harder to recruit staff and students if their reputation was damaged by the publication of the data  - The ICO said the information was “high level statistical data” which in his opinion was too high for an inference to be drawn which would impact on a university’s ability to recruit staff and students.
• Institutions could end up besieged by approaches from suppliers offering their services to upgrade and repair their buildings - the ICO refused to accept this argument and even noted that the HEFCE agreed some universities might even benefit from this process.

In conclusion the Information Commissioner said: “Therefore after considering the arguments and evidence presented by the HEFCE the Commissioner does not believe that the disclosure of the information requested in this case would have a detrimental impact on the interests of the confiders. As such he is not persuaded that the disclosure of this information would result in an actionable breach of confidence. For that reason he does not believe that section 41 is engaged.”

Editor’s Note: This decision notice brings up some interesting points, particularly when viewed alongside the other recent S.41 exemption ruling in the case of the Department of Business, Enterprise and Regulatory Reform (BERR). See my post on the subject ‘The answer to the question…’ In this case the Commissioner accepts that an obligation of confidence is created by the wording associated with the documentation that is part of the disclosure process. However, he sees above this and rules that there is no real detriment to the institutions so no actionable breach of confidence exists. This is important because it means any organisation that holds third party data cannot rely on S.41 any more without looking into the specifics of what the data is. My own experience of this is that organisations often employ S.41 on the basis they know the third party would rather they didn’t reveal the information but without examining if a genuine detriment would occur and then failing to establish if there was a public interest, under breach of confidence, for that bond to be broken.