The following examples from overseas FOI laws illustrate how FOI may affect universities. 7   They come mainly from the state and provincial laws in Canada and Australia:

• Griffith University in Australia was required to disclose large parts of an unpublished PhD thesis, which had studied the way in which an unidentified higher education institution had managed change over a period of years. The researcher had promised anonymity to the staff members interviewed, and the university had agreed to prevent public access to the thesis for a period of 5 years. The FOI request was made by one of the interviewed staff members. The Information Commissioner found that although the thesis would normally be held to be exempt from access on the grounds of an obligation of confidentiality, there was an overriding public interest in disclosure: "...unlike probably the vast majority of post-graduate theses submitted to Australian universities...the subject matter of...[the] thesis is such that its disclosure would have the effect of enhancing public knowledge and understanding of aspects of the operation of a publicly-funded tertiary institution. Its disclosure would serve key objects recognised in the FOI Act...". However, he noted that following the university's initial refusal it had agreed to release all but "a few highly sensitive passages". He accepted that this limited degree of confidentiality was justified, adding that if the university had continued to withhold the whole document he would probably have required much of it to be disclosed on public interest grounds. 8
• Confidential admissions guidelines demonstrating positive racial discrimination by the University of Michigan in the USA were disclosed under the American FOI Act. The guidelines "show a series of grids in which grades and standardized test scores are applied differently to whites and nonwhites. For example, a white student with a grade-point average of 3.8 out of a possible 4.0 and combined Scholastic Assessment Test scores of 1,000 out of a possible 1,600...would be rejected, under the guidelines, whereas a black or Hispanic applicant with those same results would be admitted" according to a press report. 9   The disclosure, to a member of the university's staff, has led to a law suit by unsuccessful white university applicants claiming they have been discriminated against.
• A confidential report into allegations of scientific fraud by a research scientist at the Queensland Institute of Medical Research was disclosed to a journalist despite efforts by the scientist to block disclosure. A former colleague had alleged that the scientist had knowingly published invalid research data in an international cancer journal. An independent investigation by the director of a university research unit cleared the scientist of fraud, but questioned certain aspects of his judgement. The scientist objected to the report's disclosure, arguing that it would involve an invasion of his privacy and damage his professional reputation. The Information Commissioner rejected these claims and held that even if they had been justified there would have been an overriding public interest in disclosure: "I am dealing with a report into allegations of improper conduct...made by an independent investigator who has allowed the subject of the allegations a reasonable opportunity to answer adverse material...there is a clear public interest in ensuring that allegations of improper conduct against government agencies and government employees, which appear to have some reasonable basis, are properly investigated, and that appropriate corrective action is taken where individuals, systems or organisations are found to be at fault, and that there is proper accountability to the public, in respect of both process and outcomes, in this regard." 10
• The larger part of an unpublished committee of inquiry report, held by Simon Fraser University in British Columbia were obtained by a journalist under the FOI Act. The inquiry followed a dispute over payment for services between a university professor and a consultant/research assistant which led to angry exchanges including the allegation by a third party that one of the participants constituted a "potential threat" to the university community. The results of an initial inquiry were then leaked. The Commissioner reported that he found it "quite extraordinary" that the university should subsequently claim that the second inquiry report was confidential, given that no promise of confidentiality had been made to witnesses. He added: "The four parties (three of them professors) who were the principals in the investigation are now asking me to protect their privacy by not ordering any more information to be disclosed. I had some initial difficulties in being very sympathetic to their situation, since the expenditure of public funds...was at issue in the initial problem. Public money also paid for the Committee of Inquiry... As the applicant argues, the public has a right to know not only how its money is being spent but also how employees of a public body, like SFU, are conducting themselves". The Commissioner ordered that most of the report be disclosed, although with some omissions to minimise the risk of identification to individuals involved. 11
• A member of the faculty at the University of Queensland asked for a number of referee reports relating to his unsuccessful applications for promotion. The Commissioner held that references from ordinary members of the faculty were exempt as they were not obliged to supply them, and disclosure could expose them to some detriment, such as embarrassment. However, heads of department were obliged to supply such reports - and their references could not be withheld under the exemption for confidential information.

     The university also argued that revealing such reports would lead to less honest references, thus undermining its recruitment practices. The Commissioner treated this argument with some scepticism, commenting that if it was right "that senior academics are prepared to be less than fully honest in writing a referee report on a colleague who might see the report, in the interests of preserving harmonious working relationships or friendships, it logically seems to be no less likely that senior academics may be inclined to promote the claims for promotion of a friend, protege or supporter over better qualified candidates for promotion." He added that the university had recently introduced regular performance appraisal of academic staff, which involved openly discussing an individual's strengths and weaknesses with the person concerned, and that the skill required to operate this system would enable them to cope with open references from departmental heads. He added: "Were it not for the evidence filed on behalf of the University, I should have thought that, as a class, the community's leading academics would be likely to have the skills and the intellectual integrity to make such a system work effectively. The University's evidence, however, paints a somewhat unflattering picture of (at least a segment) of its academic staff: of persons liable to respond to adverse comment on their performance by disrupting a Department's teaching, administrative and research activities or making retaliatory personal attacks." He commented that the requirements to operate proper staff appraisal should help to overcome obstacles of this kind and ordered the relevant materials to be disclosed. 12

On the other hand, not all complaints are successful:

• A student newspaper applied for records about an exclusive sponsorship agreement between the Coca-Cola company and the University of British Columbia, the income from which was used to improve campus facilities for the disabled. The Commissioner agreed that the documents should not be disclosed, finding that to do so would prejudice the university's financial relationship with Coca-Cola and other potential sponsors and give the company's rivals "a valuable document about how to structure a sophisticated sponsorship transaction". 13
• A student who claimed he was unjustly forced to withdraw from a Master's degree program applied for access to all records referring to him held by the University of British Columbia. The university disclosed some 130 pages of records, but withheld parts of 13 pages. It argued that the applicant "has a history of intimidating behaviour towards Faculty members, students and staff" and believed that disclosure of the records would be likely to endanger the safety of individuals and invade the privacy of third parties. The Commissioner accepted both these arguments and did not uphold the complaint. 14

A separate important piece of legislation is the Public Interest Disclosure Bill, introduced as a private members' bill by Richard Shepherd MP which has nearly completed its Parliamentary passage. The bill will protect whistleblowers who raise concerns about malpractice within their institution or with prescribed regulatory bodies or, in certain circumstances, with external bodies including the press. Disclosures may be protected where the individual has a reasonable belief that:

• an offence has been committed
• a legal obligation has been breached
• a miscarriage of justice has occurred
• health and safety or the environment is at risk, or
• any of the above matters is being covered-up.

There is no specific reference to academic standards, but it is worth reflecting on the wide scope of the provision referring to a breach of a legal obligation. It would include a breach of a contract term, or of any common law requirement including the failure to take proper care, or of administrative law - which would cover unreasonableness or procedural irregularity in the taking of a decision. To take one example: a civil servant who believes that he or she was being asked to act in a politically biased manner, would be protected for raising this matter - because compliance with the Civil Service Code is required under civil servants' contracts of employment. If academics' contracts contain reference to professional academic standards, disclosure of information relating to potential breaches would be protected under the Bill. It would be surprising if a university which was deliberately cutting standards in order to attract more students or improve its apparent success rate was not also failing to meet some legal obligation - for example, towards its students or its funders.

So important changes are coming on two fronts: in establishing a new right to information, and in protecting those who disclose information about malpractice. Many organisations are already preparing for these changes, and voluntarily adopting policies that anticipate them. There may be real benefits to academic institutions in following suit.