Maurice Frankel: If data cannot safely be made public, FOI shouldn't apply
The researchers argue that funders would be reluctant to back them
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Your support makes all the difference.Are tobacco companies abusing freedom-of-information laws by asking for the raw data obtained by academics studying teenage smoking? Research funded by a cancer charity trying to reduce smoking is being sought by a giant tobacco company keen to recruit users to its lethal products. Not surprisingly, the requests are highly contentious. But is the threat as severe as it seems?
A problem for Stirling University's Centre for Tobacco Control Studies is that our FOI laws are designed to be "applicant blind". Decisions depend on whether information can safely be made public – not whether it should be released to the specific requester, however much it may be abhorred.
That principle is important. It means that an authority cannot refuse a request because the applicant is opposing its policies, criticising its competence, challenging its decisions in court or, in the case of an opposing political party, trying to replace it in government. It cannot withhold complex data because it claims the requester lacks the ability to understand it – or withhold from a campaigning journalist what it hands over to a pliant hack.
It also means that it cannot refuse the request because it is made by a tobacco firm. But the university is entitled to take into account that making the information public would also make it available to such firms.
The researchers have argued that if they are forced to hand over the information (presumably even in anonymised form from which subjects could not be identified), funders will be reluctant to back them, other academics will not share data with them and teenagers will refuse to be interviewed in future.
If this is true, then a specific exemption in the Scottish FOI Act may apply. This allows information collected during a continuing programme of research to be withheld if future reports are planned and disclosure would substantially prejudice them. The exemption is subject to a public-interest test. Other exemptions, such as breach of confidence, may also apply. This means the "catastrophe" the researchers warn about may not be imminent at all.
Maurice Frankel is director of the UK Campaign for Freedom of Information
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