The Information Review Tribunal of the United Kingdom has been asked to resolve two conflicting and contradictory statements by the London School of Economics and Political Science about the 1983 PhD thesis of Republic of China in-exile President Tsai Ing-wen. The LSE, in response to a May 2021 Freedom of Information request, conducted an Internal Review and declared it lacked records that identified the PhD thesis examiners. Six months earlier Kevin Haynes, the LSE Head of Legal Team, provided the initials of one purported examiner and the name of a second to the ROC Ministry of Justice in a criminal investigation and even cited page numbers that allegedly contained the information.
Although Haynes is the Head of Legal Team at LSE he is not an attorney. Consequently Haynes is not subject to regulatory discipline if he gave false information in the ROC prosecution of Taiwanese news commentator Dennis Peng. President Tsai kicked off a controversy about her thesis when she filed what appears to be a draft copy with the LSE Library in June 2019, thirty-five years after it was due. Peng has accused President Tsai of academic fraud and she in turn made a criminal defamation complaint against Peng.
In response to questions from the public about who approved the thesis, the LSE has denied having records that name the thesis examiners. The LSE lacked an ability to award PhD degrees in the 1980s therefore the University of London issued diplomas to students on the pass list. President Tsai’s unwillingness to release the viva examination report naming the examiners has kept the controversy alive for two years while both schools, LSE and UL, have denied FOI requests for the information citing the Data Protection Act.
A request for the examiner names to UL is pending before the Second-Tier Tribunal. Now the First-Tier Tribunal will be considering the same request made to LSE with one big difference, UL said it held the thesis viva report while LSE claims it doesn’t even know the names of the examiners. If the LSE Internal Review could be taken at face value there would be no reason to involve the Tribunal, the school cannot provide what it does not have. However, the contrary action of Kevin Haynes, the Head of Legal Team, providing a name and the initials of another person as purported examiners to ROC prosecutors, puts Haynes in direct contradiction with Louise Nadal, the Secretary of the LSE Board and author of the Internal Review. It is the old he-said, she-said game with the truth in the balance.
The Information Commissioner’s Office was first asked to resolve the contradiction and determine whether or not the LSE did possess records containing the thesis examiner identities. However, the ICO dropped the ball and instead of probing the Haynes-Nadal divide, a probability analysis was used to determine LSE did not hold the examiner names.
“For clarity, the Commissioner is not expected to prove categorically whether the information is held, she is only required to make a judgement on whether the information is held on the civil standard of the balance of probabilities.”
“On the balance of probabilities, the Commissioner is satisfied that the LSE does not hold the requested information.”
“The LSE has searched its records and has been unable to locate the information in question. In the Commissioner’s view, the most likely explanation is that the LSE has never held this information. She is satisfied that none of the LSE’s statements, to which her attention have been drawn, conflict with a denial that this particular information is held.”
The Commissioner’s attention was drawn to the submission by the Head of Legal Team to ROC prosecutors, contradicting the Internal Review claim. As the ICO accepted Nadal’s assertion of no record, by implication the ICO has rejected Haynes’ representation to the ROC prosecutors on the strength of a probability analysis.
The LSE did inform the ICO about one questionable document which the Commissioner factored into her probability anaysis.
“The student record had been examined and no definitive record of the examiners had been found. Whilst one document indicated that a particular individual might have been an examiner, the LSE had no way of cross-checking whether that individual had in fact performed that role – and the LSE considered it unlikely that they would have done so.”
The ICO determination that the LSE lacked the thesis viva examination record, or even the names of the examiners, raises the question of how was the LSE able to verify that President Tsai passed her viva examination as the school did in a 2019 public announcement?
Louise Nadal had an anwer: “I note that in your request for an internal review, you have questioned whether the School’s public statement on Dr Tsai’s PhD can be accurate on the basis that, in your opinion, it could not be compiled without the information you have requested. As you are aware, the School has made a copy of Ing-Wen Tsai’s thesis available online and has confidence in the accuracy of its public statement.”
The new lawsuit seeks to unravel the mystery of the examiners and calls for an order to remit the matter to the ICO with “direction to conduct a more thorough review of the conflicting statements of the Internal Review and the Head of Legal Team.”
Further, it seeks an order directing the Commissioner, if she finds the Internal Review to be incorrect, to issue Good Practice recommendations to LSE to avoid future FOIA violations by the school.