Lecturer's private research not 'held' by university for purposes of FOI disclosure, rules Tribunal

Out-Law News | 21 Dec 2012 | 4:54 pm | 3 min. read

A university in Liverpool did not have to disclose emails sent from a lecturer's university email account concerning the lecturer's work at a climate change policy think tank because the information could not be said to be 'held' by the institution, an Information Rights Tribunal has ruled.

The Tribunal said that because the emails sought were private and concerned the lecturer's work as a director of the Global Warming Policy Foundation (GWPF), it could not be said to be 'held' by Liverpool John Moores University for the purposes of disclosure under UK freedom of information (FOI) laws.

Under the Freedom of Information Act (FOIA), anyone of any nationality living anywhere in the world can make a written request for information to designated public bodies and expect a response within 20 working days. The public authority is obliged to meet that request unless exemptions apply or unless meeting it is too costly or difficult. Generally, though, the public bodies are only required to disclose "the information in question held at the time when the request is received".

Under the Act information is said to be "held by a public authority if it is held by the authority, otherwise than on behalf of another person, or it is held by another person on behalf of the authority."

Brendan Montague, who requested that Liverpool John Moores University disclose the lecturer's email correspondence, had questioned whether the lecturer's university work and GWPF role overlapped, according to the ruling. (12-page / 52KB PDF)

Montague was of the view that the University had "gained significant media coverage" on the back of climate change papers the lecturer had published as a result of the "exceptional role" the lecturer performed at GWPF. He claimed the University was wrong to try to try to distinguish between the two roles the lecturer performed when it benefited from the 'blurring' of the line between his personal and academic work "in reality". Montague was of the view that the GWPF promotes "scepticism about climate change science" and seeks to influence government environmental policy, the ruling said.

However, Liverpool John Moores University said that it did not 'hold' the information concerned. It said the lecturer did not represent it when he articulated his views on climate change and said that "any information produced by the lecturer in his personal capacity, or as director of the GWPF, was not held" by it.  The Information Commissioner, on appeal, had also come to the conclusion that the information sought was not held by the University.

The Tribunal said that it had considered guidance the Information Commissioner had issued last year, when he confirmed that "information held in private email accounts can be subject to Freedom of Information law if it relates to official business". The Tribunal also said that it had followed guidance set out in a previous case.

That guidance had set out that merely having "physical possession" of information was not sufficient to establish that it is 'held' for the purposes of FOI. It had also said that the Tribunal should not form "an unduly legalistic approach" when determining the issue, and instead should assess all the particular facts on a case-by-case basis in order to determine "whether, as a matter of common sense, the information in question was sufficiently meaningfully connected to the public authority, such that it could be taken to ‘hold’ that information".

In its findings the Tribunal rejected the view that there had been strong links between the lecturer's university work and his private research. It said that the University had neither funded nor endorsed the lecturer's private research and had "no interest" in nor had sought to benefit from it.

The Tribunal also found that the lecturer had promoted his own "private interests in climate change and global warming" without the University's involvement, and that similarly his media appearances had also not been "authorised" by the University. The lecturer's involvement with the GWPF was a "wholly private endeavour", the Tribunal also said.

Because of its findings, the Tribunal ruled that the information requested by Montague, although held on university systems, was not 'held' for the purposes of disclosure under FOI laws.

"Having considered the emails in question the Tribunal is satisfied that these were completely private and that there was no 'crossover' between the lecturer’s contracted University work and the private work he was dealing with in terms of global warming and climate change," the Tribunal said.

"In short, the Tribunal is satisfied that the emails in question were private emails sent by the lecturer in a purely private and personal capacity. The information they contained did not relate to or remain to University business. They were not emails falling within the scope of the EIR (Environmental Information Regulations) and the University did not ‘hold’ the emails for EIR purposes in the context of the original enquiry by [Montague]," it said.