Government officials are considering a tightening of the Freedom of Information regime in a move that could significantly narrow access to the internal records needed to hold universities to account.
According to a report in the Financial Times, the proposal is to reduce the statutory cost ceiling for processing a request – in effect, lowering the point at which a public authority can refuse to comply on the grounds that the request would take too much time and resource to answer.
Under section 1 of the Freedom of Information Act 2000, any person making a request to a public authority is entitled to be informed whether the authority holds the information and, if so, to have that information communicated to them. That general right is subject to a number of exceptions, including section 12, under which a public authority is not required to comply with a request if the cost of doing so exceeds the “appropriate limit” set by regulations.
For universities and other public bodies, that limit is currently £450, with staff time calculated at a flat rate of £25 an hour. That means an authority can refuse a request estimated to take more than 18 hours to determine, locate, retrieve and extract the relevant information. And here, “refuse” does not mean a discretionary decision – once the estimated cost exceeds the prescribed limit, the statutory duty to comply falls away.
Nor is the position necessarily confined to a single request. Under section 12(4), the Act permits regulations providing that, where two or more requests are made either by one person or by different persons who appear to the authority to be acting in concert or in pursuance of a campaign, the cost of complying with any one of those requests may be treated as the total cost of complying with all of them.
Although the FT report is focused mainly on government, any reduction in the section 12 cost ceiling would have effects across the wider public sector. Lowering the ceiling may reduce the overall number of requests, but it would also make it harder to pursue the kinds of investigations most likely to shed light on how important decisions were actually made. In practice, the effect would be to filter out the more complex requests: those requiring broader searches, longer email chains, multiple custodians, or retrieval across different parts of an institution.
Where disputes arise, applicants may complain to the Information Commissioner and ultimately appeal to the First-tier Tribunal (Information Rights), but what these retrospective, case-specific remedies cannot alter is the practical reality that, if the section 12 threshold is lowered, the scope for complex, document-heavy investigations will be narrowed at the outset.
The issue is particularly acute in universities, where senior administrators will often either treat contentious decisions as effectively closed processes, or present them externally in abstract, procedural legal language. In the absence of disclosure in legal proceedings – which is case-specific and no substitute for general public access to documents – FOI is one of the few ways to track how universities operationalise policies on matters such as equality, diversity and inclusion (EDI) and de facto speech codes that may be restricting lawful speech. By enabling access to the underlying record, it makes it possible to examine internal emails, meeting notes, guidance to staff, and correspondence with third-party organisations such as Stonewall.
CAF, for instance, currently has two FOI investigations underway. One concerns the use of trigger warnings, and whether universities hold any evidence as to their effectiveness in enabling students to access course material. The other examines how universities are preparing to implement the Higher Education (Freedom of Speech) Act 2023, including what resources, staffing and governance structures are being put in place, particularly within Russell Group institutions. Both have already had to be carefully scoped and refined in order to remain within the existing section 12 limits. A further reduction in the cost ceiling would place this kind of work in serious jeopardy.
The fact that such information must be obtained through FOI, rather than being published proactively, is itself telling. Under the Act, public authorities are required to maintain publication schemes specifying what information they make available proactively, reflecting a statutory expectation that at least some material should not need to be requested at all. In practice, however, universities – like other public authorities – tend to highlight what serves their public-facing identity, while the internal processes by which decisions are made, including how statutory free speech duties are interpreted, balanced against competing considerations such as perceived harm, or effectively deprioritised, remain largely out of view. FOI plays a critical role in bridging that gap.
Any move to reduce the section 12 cost ceiling should therefore be assessed not only in terms of administrative efficiency, but also in terms of its downstream effect on accountability across the wider public sector – particularly within universities, where access to the underlying record is often essential to understanding how decisions affecting lawful speech, which lies at the heart of the university’s mission, are reached.
CAF will be monitoring developments closely and, if proposals of this kind are taken forward, will engage with the Public Administration and Constitutional Affairs Committee and the Justice Committee to outline our concerns.
This article forms part of the Committee for Academic Freedom’s monitoring of developments in UK higher education. To receive monthly updates and analysis on cases affecting academic freedom, click the link and subscribe to our newsletter.