On 05/04/12, the requestor asked to be provided with copies of minutes from all meetings of the PACE Trial Steering Committee, Trial Management Group, Data Monitoring and Ethics committee pursuant to the UK FOIA 2000. This initial request was denied pursuant to the opinion of the relevant qualified person that exemption under section 36(2) of the Act applied due to the likely prejudice to the effective conduct of public affairs. The requestor has now requested a further internal review. As under section 36(2), only the qualified person can render a reasonable opinion, the qualified person has here taken the opportunity to re‐examine that decision in light of the comments of the requestor and the analysis of qualified staff who have further examined the minutes in question and other documents and issues in light of the request for this internal review. The following comprises the opinion on internal review of the qualified person.
Faculty members including scientific researchers often share their thoughts and views with one another. This is especially true where the scientific examination of an issue is a collaboration among scientific researchers such as with the examination of treatment outcomes in the PACE clinical trials. It is further true that in the instant case the requested minutes reflect the opinions/exchanges of the principal investigators and other members of the research team on a range of issues regarding the structure, proper conduct and ongoing evaluation of the trials. The confidentiality of such discussion and debate can be vital to the development of scholarship, knowledge, and scientific truth which is the public mission of this College. Faculty members and other researchers and individuals with whom they collaborate in these endeavours must be afforded privacy in their exchanges in order to pursue knowledge and develop lines of argument and scientific findings without fear of reprisal for findings or ideas that are controversial and without the premature disclosure of those ideas.
There is limited case law and decisions to guide an opinion in this context. However, that academic freedom and the need for the space to develop ideas and pursue knowledge protected from reprisal is a recognised and important public interest is reflected in a variety of important sources. For example, although not controlling here since this is a matter of purely UK law, it must be noted that academic freedom is a public interest and important democratic European Union value reflected equally (Article 13) with access to information (Article 11) in the EU Charter of Rights and Fundamental Freedoms. It is as well an important public interest embedded in UK law. The UK has distinctly indicated that academics’ freedom to develop ideas and knowledge free from jeopardy of reprisal is to be legally protected in the UK Education Reform Act 1988 (Section 43). While there appears to be limited decision as to the exact scope and nature of the academic freedom and scholarship protected pursuant to it, not to mention the balance of this public interest with others, a notable work is that of Eric Berendt, Academic Freedom and the Law (Hart Publishing 2010). Professor Berendt suggests that courts and others bodies should consider the Act’s protections, where relevant, in their decision making. The Information Commissioner appears to have independently reached a similar conclusion in the context of the UK FOIA 2000. He has as well note, in his recent guidance to Universities and Colleges, that academic freedom and the space to develop scholarship and ideas can be an appropriate public interest worthy of protection. Thus, in reviewing our original decision, it is necessary that we balance the respective public interests here of protecting academic freedom and the space to research and develop knowledge and ideas without fear of public reprisal and as part of the College’s effective conduct of its public affairs as a public institution of higher learning and research with the public interest in disclosing the requested documents.
On review, the qualified person continues to consider that prejudice to the conduct of public affairs as consequence for making public the minutes sought here would occur. This prejudice will be the loss of the most talented and experienced researchers to areas of study that are, as here, any way controversial or to institutions around the world that can guarantee them the privacy and confidentiality that is necessary in academia. This risk is real and in no way speculative in the instant case. Various independent sources, including a recent article in the British Medical Journal, reveal that the particular animus that surrounds the debate regarding the causes and treatment of ME/Chronic Fatigue Syndrome has created difficulty in obtaining scholars to present scientific papers on the subject at conferences and has caused experienced medical researchers who have been victims of the animus to leave the field to pursue other research areas. The further deterrent effect on scholarship is further noted in the BMJ article. If expert senior researchers have left the area of study and expressed concerns for their safety, reputations and future careers arising from the mere publication of research findings and papers, it is not remote or unreasonable to conclude that junior researchers working under them (and whose work and identities are also reflected in the minutes) would similarly be deterred from pursuing scientific research in this controversial field where continued study is important.
It is also reasonable to conclude that disclosure here would inhibit the quality and freedom of future exchanges among academic researchers who do continue in the field and to recruit important participants outside academe to get involved in the studies. A review of the minutes in question reveals sensitivity among the researchers in light of the highly politicised and polemic nature of elements of the public debate noted above. While the noted instances concerned decisions like ensuring that treatment protocol manuals were of equal quality and comprehensiveness for all treatments methods under study and not to utilise access to a particular service network which could add resources to the study in light of the possible perception by patient representatives that this would indicate a mental health bias, it is indicia of a high degree of self‐editing in light of the highly politicised environment. This self‐editing and refusal to use professional resources that might otherwise enhance the patient experience occurred in an environment where researchers fully expected the meetings to be closed to the public and the minutes to be confidential, evidence. These responses express strong views as to the negative impact on future exchanges and the willingness of some important participants to be involved, for example, patient representatives whose role is to help ensure a public oversight and balance of views and who would not participate if their identities or view/statements as reflected in the minutes were disclosed to the public.
As there are other studies planned and beginning, disclosure now of the identity/opinions of the participants in the completed study could likely impact participation and exchange of views and analysis in other studies. Since ME/CFS is an area where there is a significant need for ongoing research, the public interest in continuing to perform such studies in an atmosphere conducive to academic freedom is great with the potential prejudice to its quality and successful completion real and significant.
Turning, on balance, to the public interest in disclosure of the series of minutes of the two groups requested here. It is recognised there is a public interest in the disclosure of research that is publicly funded as here, to permit, among other things, the public to monitor the expenditure of public funds. It is also recognised that in the conduct of public affairs the public interest in providing a space to think or engage in debate freely to reach a decision that affects the public usually lessens when the decision has been made or the policy reached. There is an important public interest in the transparency/accountability of public authorities and the ability of the public to monitor activities of public bodies and understand how decisions were taken that affect them.
Here, however, the research and its findings have been fully and timely published in a respected peer‐reviewed journal, The Lancet, with access to the findings fully available to the public. Moreover, these findings have been subject to extraordinary public scrutiny. The Lancet, in response to extensive public commentary, in an unusual procedure, subjected the study to a further peer review process. While the requestor here suggests that the minutes would be helpful to provide the public information as to the findings in light of investigators’ conflict of interests, these interests were disclosed with the published study. It is not viewed that the minutes in question would provide further the public interest by providing more information in this regard to the public.
Also in the instant case, however, there is an ongoing scientific process, both with new studies, one of which is advised as to be just underway and another planned longitudinal evaluation of data from the study in question. There is, therefore, here a continuing need to protect the free and frank exchange of views in such ongoing studies and to promote the public interest in protecting academic freedom and the College’s future effective conduct of its public affairs mission to engage the effective conduct and evaluation of scientific knowledge here without fear of public reprisal.
For these reasons, in a further internal review, the qualified person concludes that his original opinion was reasonable and continues to be of the opinion that that in light of this the balance the public interest in not disclosing the minutes embodying the communications among principal investigators, other researchers and study participants outweighs the public interests favoring disclosure of these minutes. As it is reasonable to conclude here that the disclosure of the minutes sought would or would be likely to inhibit the free and frank exchange of views for deliberation as well as prejudice the effective conduct of public affairs, the qualified exemptions of Section 36(b) and (c) of the UK FOIA 2000 applies. The qualified person continues to be of the opinion that the request should be denied.
