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Expert backs 'greater certainty' for businesses in preventing disclosure of pre-published research under FOI

New rules that would stop universities from disclosing pre-published research would be welcomed by businesses that often partner with the institutions to fund research programmes, an expert has said.

Intellectual property law and life sciences expert Seona Burnett of Pinsent Masons, the law firm behind Out-Law.com, commented on plans contained in the Intellectual Property Bill to create a new specific exemption from the general obligation public bodies have to disclose information they hold under freedom of information (FOI) rules.

The new exemption, if introduced, would mean public bodies, such as universities, could refuse requests to disclose information that is "obtained in the course of, or derived from, a programme of research" in certain circumstances.

Universities and other public bodies could rely on the exemption if the research is continuing and a report of that research is to be published in future and disclosure of the information prior to then would, or would be likely to, "prejudice the [research] programme, the interests of any individual participating in the programme, the interests of the authority which holds the information, or the interests of [another public authority involved in the research programme but which does not itself hold the information sought]".

FOI laws in Scotland already contain a similar exemption and, during a debate in the House of Commons earlier this week, Universities and Science Minister David Willetts said that there was a need to create new rules that mirror "the Scottish exemption" within FOI laws that apply in England, Wales and Northern Ireland.

Willetts said that the lack of guarantees that unfinished university research would not be subject to disclosure under FOI had "increasingly led businesses to demand contractual guarantees that their data will be secure". He said that this was "not only costly in time and resource" but that it had also "inhibited research collaboration between universities and businesses".

"The introduction of a specific exemption for research will therefore provide clarity both to higher education institutions and non-public sector research partners – our excellent research community – and enhance the UK’s leading position in international research," Willetts said.

Willetts had been asked by Liberal Democrat MP Julian Huppert whether he was prepared to amend the current proposals to add new wording, suggested by the Wellcome Trust, which Huppert said could clarify "when protection starts in relation to people preparing a piece of research". The Minister said the issue would be considered when the IP Bill is scrutinised at committee but that he was not currently persuaded of the need to update the proposals.

"Commercial partners that fund research projects are often keen to control how that information is published," Burnett said. "This is because they want to protect commercially sensitive know-how generated in projects in which that they have invested time and money, and often their pre-existing know-how too, and because there is also a significant risk that the early disclosure of information from research can preclude the ability to obtain a patent for a later discovered invention uncovered through that research."

"A right for academic partners in research projects to publish is often stipulated in the contracts with commercial research sponsors to deal with these issues. The agreements will agree a process for the academic partners to publish findings from research projects which balances the need to publish against the commercial value in the findings. Whilst universities seek timely disclosure of the results of their studies, commercial partners like time to review the information to make sure commercially sensitive data is not disclosed and make a decision on whether they can apply for patent protection on any inventions discovered during the project," she said.

There are existing exemptions under the FOI Act which allow public bodies to refuse to disclose commercially sensitive information or information intended for future publication. However, the proposed new exemption should help resolve some of the issues and doubts that may currently deter commercial partners from entering into collaborative research projects with universities, Burnett added.

"Having a dedicated exemption against the disclosure of pre-published research will provide greater certainty to both businesses and universities and allow for greater control over the early release of valuable information," Burnett said. "In turn this should assist universities attract funding for new research projects."

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