Feature
Don't believe everything you read on the Internet. Fortunately, when I write a story, I'm a bit anal about going to read the source materials. So when I came across a Slashdot post by Sara Chan claiming that "scientists at universities, which are all public in the UK, can now not claim data from publicly-funded research as their private property," I hunted down the ruling in question and gave it a read.
The Issue
Since 2007, mathematician Douglas J. Keenan has been trying to get access to tree ring data compiled by Queen's University Belfast. After repeated attempts to get a response, he was finally told that they didn't have to send him the information because by the rules of the Freedom of Information Act, it was too expensive to process his request. (I'm going to ignore the issue of why he wants the data here. Why is not the point.)
After much back and forth, which you can read in full for yourself here, the Information Commissioner agreed to review whether the request had been wrongly denied. During the review, the Commissioner was told first that the request was too expensive to process. Finding no problem with the refusal, the Commissioner upheld the university's decision.
Where it Gets Interesting
After some additional discussions, the Commissioner agreed to look again. Since tree ring data is environmental information (due to the fact that you can learn about the state of the environment where the tree grew by studying its rings), Keenan's request should actually be considered under Environmental Information Regulations 2004, not Freedom of Information.
The university agreed to review the request again under the EIR and yet again declined. This time the reasons given were that they should be able to withhold the information under the following exceptions:
- Regulation 12(4)(d) – "Information that is unfinished or in the course of completion"
- Regulation 12(5)(c) – "Intellectual property rights"
- Regulation 12(5)(e) – "Commercially confidential information"
They also claimed that "there was 'negligible' public interest in disclosing the requested information given that it did not relate to issues of national/regional debate, public safety or decisions taken by QUB that directly affected the public. However the risk of harm to QUB through disclosure of the information was of greater significance."
After a change in staff, the Information Commissioner's office agreed to review the case again. The Commissioner was particularly interested in "why, having initially refused the request on the grounds of cost under section 12 of the Act, there was no mention of costs or time considerations when the request had been considered under the EIR."
In response, the university said that it thought it should be exempt "on the grounds that the request was manifestly unreasonable." They claimed that the data would be "meaningless to the complaintant" due to how it was stored and organized. In addition to 11,000 individual tree samples and physical files, there were also 50 to 500 measurements for individual growth rings for each sample kept on floppy disks.
Shady Dealings
Originally the university claimed that it would take a full year for a full-time employee to copy all of the data. Keenan had already stated that he would be satisfied with just a copy of the electronic data. Instead of the 150 disks that the university claimed they had, there were only 67, containing 150 folders of data. The Commissioner determined that it would take about 12.5 hours to make a complete copy. This action was not deemed a significant burden.There is also nothing in the regulations that say that someone has to say how they'll use the data, so the university couldn't say that it was useless. (From here I'm going to hit the high points, if you want every detail, have some caffeine to stay awake while you read the report yourself.)
The Commissioner then looked at the fact that the university claimed that the data would be published "within the next 12 months" so they shouldn't have to release it immediately since it was still being used for studies. However, the regulation they were referring to applies to incomplete data. The 40 years of tree ring data was finished being collected, so wasn't incomplete at all.
Next was the objection regarding intellectual property rights. However, the Commissioner felt that "this exception is intended to protect the interests of the holder of an intellectual property right and is not intended to protect intellectual property rights in principle." There were other subtleties here, but ultimately the Commissioner noted that this excuse wasn't given until March of 2009. Surely if it was a core part of their argument it would have been shared sooner.
Then finally the real reasoning became clear. The university stated to the Commissioner that they'd put a lot of work into gathering the data, it was used to teach students and it included "very significant know-how and confidential information." They also claimed that the school relied on the information to protect its academic research, standing, gaining publication and to attract external funding.
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The Decision
Ultimately the Commissioner ruled that the university doesn't hold intellectual property rights according to the World Intellectual Property Convention 1967(19), which defines Intellectual Property as "... the rights relating to – literary, artistic and scientific works ... protection against unfair competition and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields." While the data might attract work that can result in IP, the data itself didn't.
Another claim was that the data was commercially confidential. While the Commissioner found that "the raw data could be viewed as confidential" since the university could use it to make money, that didn't mean that a person's confidence would be breached by the data's release. After all, in their letter to Keenan they had stated that the information came directly from research by their Department of Archaeology and Palaeoecology.
The Result
Ultimately the Commissioner determined that none of the arguments had merit, and found that the university wrongly withheld the information. Regulation 5 of the EIR states that "a public authority that holds environmental information shall make it available on request." (There's also the little issue that regulations state how long you're allowed to take in responding to requests, and the university violated those as well.)
Here is where the post I originally read over-reached. In the UK, public institutions like universities were just given the message that if they have data relating TO THE ENVIRONMENT, they must divulge it upon request. On March 29, 2010, Queen's University Belfast was advised that it has 28 calendar days to appeal, and if not, 35 calendar days from the notice date to comply.
The issues raised here are important ones. It's hard to imagine how anyone could sincerely argue that issues revolving around the environment are not in the public interest, no matter what your personal beliefs regarding the environment are. Sharing data is good for the public and good for the advancement of science. If the data can help us better understand the world around us and our effects on it, all the better.
In the US, a judge invalidated patents on human genomes that were blocking other researchers from studying issues around breast and ovarian cancer. Here the data was publicly available but no company could use it without breaching the patent. I personally just lost a friend to breast cancer, she was only 55 and I have rather unkind words for people who think they have the right to patent a gene that already existed in the body and they merely discovered, preventing research that could save lives.
I read the Commissioner's document before reading Keenan's own posting on the subject. The QUB was advised to look over their policies for handling information requests, given the unacceptable time lags. Perhaps they also need to reconsider the desire to hoard information that really isn't theirs to hoard, along with doing so by repeatedly misleading the powers that be. There is value in being known as an institution that provides incredibly useful data and in becoming the very best at interpreting it even though the data's out there. That's how to gain the additional funding they require.
And maybe folks should read more carefully, too, before proclaiming the end of private data in public universities.
