Scottish
Disability
Team
NB This is the fourth page of the online version of the SDT Guidance Note Freedom of Information and Disability: Briefing Notes, published in February 2005.
Universities and colleges have duties to disabled students and prospective students under the DDA not to treat them less favourably for a reason relating to their disability and to make reasonable adjustments where students or prospective students are placed at a substantial disadvantage as a result of their disability. Claims under the DDA that students have been discriminated against by universities and colleges are increasing. It is therefore possible that disabled students and prospective students could use the new rights under the FoI to assist them in establishing that discrimination has taken place. This section highlights some of the ways in which disabled students may be able to utilise the FoI in this way and the potential liability issues for universities and colleges to consider.
Example: Miriam is an applicant for a specialist course in nuclear power technology. Her application is rejected, without interview, on the grounds that the course is fully subscribed. Miriam's school grades are good. Miriam has schizophrenia which she has disclosed on her application form. She believes that her application has been rejected because of her impairment and she is considering making a claim of discrimination under the DDA. What rights will Miriam have to obtain information about her application?
Under the DPA, Miriam could request to see copies of any information held about herself by the university. In addition, under the FoI Miriam could request to see information (a) about the department policy on interviews for applicants; (b) about the number of applicants with mental health issues who have applied for the course; (c) the number of these who were offered places; and (d) why unsuccessful applicants have been rejected.
Miriam may be able to use such information to demonstrate that there is a pattern of rejection for disabled applicants which may assist any claim which she has under the DDA, as would any staff comments indicating a discriminatory attitude.
Example: Joe has just finished a literature course at university. His degree classification disappoints him. He suspects that his severe dyslexia has prevented him from obtaining better grades. He has previously advised the university of his dyslexia and the university agreed that as part of its duty to make reasonable adjustments under the DDA it would allow Joe extra time in exams and not make any deduction of marks for spelling errors. What information could Joe request access to in order to determine whether these adjustments have been correctly applied?
Under the DPA, Joe has a right to a transcript of the examiners' comments (though not to the script itself). Under the FoI, Joe may be entitled to see marking schemes applied by the university to the exam scripts of students who have dyslexia. He may also be entitled to see copies of any minutes of the committee which decided the final grades.
Example: Ruth is a final-year accountancy student diagnosed with narcolepsy. Ruth has concerns about the possible impact of her condition on her final grades. Ruth believes that Randolph, the recently appointed head of the accountancy department, has a negative attitude towards disabled students in general, and she has experienced hostility from him in connection with her illness. She also believes that the accountancy department has under Randolph's leadership become less helpful in making the reasonable adjustments she requires.
In order to elicit the accountancy department's and the university's views on disability, Ruth makes a request under the FoI to the university's finance and accounting department to see all items of internal correspondence dating since the appointment of the current head of department which relate to students' illnesses, absences and requests for consideration on grounds of illness. Ruth specifies that this is a FoI request and she asks that all identifying references to students be taken out to eliminate any data protection issues.
There are a number of exemptions under the FoI which may apply to the type of information requested by Ruth which may mean that the university does not require to supply the information requested to her. If this is the case, the fact that the information is exempt requires to be communicated to Ruth in accordance with the timescales specified in the FoI.
If however such information does not fall within any of the exemptions in the FoI and it does require to be made available, any evidence that senior officers of the university have adopted a hostile or disparaging tone towards disabled students may assist Ruth in any claim she may have against the university under the DDA.
Example: Farah, a student on an environmental health course, has a visual impairment. She complains that she has suffered discrimination because the staff teaching physics and measurement techniques have failed to provide her with necessary additional instruction in the use of measuring equipment. As a result she believes she has had to repeat a year of the course and incur substantial extra cost.
Farah requests to see a copy of a schedule of the number of department staff who have had staff training on disability discrimination issues. The department advises that no information on the matter is available and refers Farah to other departments in the university that have a role in assisting disabled students. However, none of these departments have this information either.
The Disability Rights Commission Code of Practice (relating to Part IV of the DDA) makes it clear that staff training is an integral part of DDA compliance and can in certain circumstances be a defence to claim for discrimination. If Farah was to raise a court action, the failure to produce information on staff training might be detrimental to the university's defence of any claim of discrimination.
Example: Mark is a linguistics student who is dyslexic. He is apprehensive about a series of lectures by Magda which involve unfamiliar terminology which, he fears, will take him a long time to master. He would like advance sight of lecture materials but previous requests for this have been refused. He is unwilling to pursue any complaint because he is afraid that this would strain his relationships with staff.
Mark's mother, Delilah, is indignant about this situation and makes an FoI request for access to Magda's notes upon which the lectures are based. She specifies that she would like these notes to be on disk.
The university may argue that this information is exempt from the FoI as the lectures are going to be made available following the actual lectures. The university may however run into problems with this argument since Delilah can reasonably say that the lectures will not be available to her as she is not a student. Therefore, in this example, Mark's mother may be entitled to request the lecture notes in advance of the lecture under the FoI but Mark will not (as the lecture notes are going to be made available to Mark anyway and would therefore be exempt from an FoI request made by Mark). Failure to make the notes available to Mark in advance of the lecture may, however, be a failure to made reasonable adjustments under the DDA.
Universities and colleges may feel uneasy at the prospect of having to make course materials available to any member of the public submitting a request under the FoI. The Scottish Information Commissioner's current guidance in relation to course materials is that course materials should be made available on request unless the university or college can rely on one of the exemptions contained within the FoI e.g. that such disclosure may be prejudicial to commercial interests. It should be noted that the successful use of exemptions under the FoI shall depend on the facts and circumstances of each situation and the Scottish Information Commissioner has yet to issue any definitive guidelines on the use of exemptions.
Next page - 5: Recommendations for universities and Colleges.