In a stunning reversal, Information Review Tribunal Judge Alison McKenna overturned the Information Commissioner and found that the London School of Economics violated the Freedom of Information Act. Judge McKenna found the Information Commissioner ignored a submission from Taiwanese newsman Dennis Peng and issued an erroneous decision in the case involving Republic of China in-exile President Tsai Ing-wen.
President Tsai has been embroiled in an academic fraud controversy over her 1984 PhD degree issued by the University of London on behalf of the London School of Economics. Tsai triggered an academic firestorm in June 2019, when she submitted her 1983 thesis entitled Unfair Trade Practices and Safeguard Actions to the LSE Library, thirty-five years late. The tardy thesis, in draft format, contained pagination problems, footnote issues, and handwritten notations, including a question mark.
President Tsai has refused to release the viva report of her oral examination, while both the LSE and the UL refuse to even name Tsai’s thesis examiners. At one point, the UL tried to blame librarians at the Senate House Library for losing the UL’s copy of the thesis during restructuring, but backed away after a Tribunal judge found there was no record of the thesis submission.
In a Freedom of Information request, the LSE was asked for the names of President Tsai’s examiners, however, the school claimed that it lacked the identities of the thesis examiners. At the same time, Kevin Haynes, the “Head of Legal Team” at LSE, volunteered to the ROC Ministry of Justice the names of purported examiners. The Ministry was investigating a charge of criminal defamation that Tsai lodged against newsman Dennis Peng for his coverage of the controversy. Peng has a daily YouTube broadcast entitled “True Voice of Taiwan” that has riled Tsai. Haynes’ subordinate, Rachael Maguire, has since suggested that Haynes gave incorrect information to Tsai’s prosecutors because of a “hurried view” of Tsai’s student record.
While the LSE was busy denying information requests about President Tsai, the ROC prosecutors obtained an arrest warrant for Peng, who is presently in the United States. Because Tsai’s exiled Chinese government has no extradition treaty with the United States, Peng is able to avoid imprisonment and continues to hammer away at the PhD thesis controversy.
Judge McKenna tells the rest of the story in her decision, after finding the LSE did not pass the “gateway” of compliance with the law.
“LSE declined to be joined as a party to this appeal but made submissions and provided evidence. Its submission to the Tribunal dated 14 March 2022 it stated that “…the information we hold on file is only there accidentally…we cannot be certain that this information is accurate”.
“LSE confirmed to the Tribunal that it holds President Tsai’s student file, comprising 278 pages. It stated that there is a letter on this file in which a person appears to self-identify as one of the Viva examiners, but that it has no official notification from University of London whether this information was correct, and it holds no information on the identity of the co-examiner.”
“The 16 December 2020 email [Kevin Haynes to ROC] was provided by the Appellant to the Information Commissioner’s Office during its investigation, but it did not ask LSE about it, apparently being uncertain of its provenance. The Appellant provided the Tribunal with a further copy of the email, exhibited to an affidavit dated 24 January 2022 signed by journalist Dennis Peng, who states he obtained it via disclosure during defamation proceedings brought against him by President Tsai and that the addressee of the email is “the inquiry of the Taiwanese Judiciary Institution” which is investigating President Tsai’s PhD.”
“The Appellant produced an email dated 14 June 2019 from a member of staff at LSE to President Tsai’s office in which there is a reference to “fending off” enquiries about President Tsai’s PhD. The Appellant relies on this as evidence that LSE is reluctant to comply with its duties under FOIA.”
“The Tribunal considered the following evidence, provided by LSE with its submissions of 14 March 2022: An internal email dated 31 March 2021, addressed to the member of staff who sent the 16 December 2020 email, as follows: Looking at it again, I was wondering where in the student file you got the information that she had two internal examiners – [XX] and [YY] – and one external examiner – [ZZ]. As far as I can see the only examiners referred to in the file are: -[ZZ], named as external examiner in a letter from Pres Tsai to …Sec of Graduate School at LSE, 5 December 1983 -[XX], who refers to ‘my co-examiner and myself’ in a memo …dated 16/1/1983. This also suggests there were only two examiners, [XX] and one other. I see [YY] is mentioned in the file but couldn’t find him specifically named as an examiner.”
“We conclude on the basis of all the evidence before us and on the balance of probabilities that information within the scope of the request is held by LSE in President Tsai’s student file. That information has been referred to in email correspondence between LSE and others (including apparently being supplied to a judicial inquiry) and is also referred to in its submission to the Tribunal. We understand that LSE doubts the accuracy of this information, but we conclude that this is not a basis for stating that information is not held under FOIA.”
“It may be that exemptions will be claimed, but we conclude that LSE must now issue a fresh response in which that issue is addressed. As we have concluded that information is held, the correct course is for LSE to issue a fresh response on the basis that information within the scope of the request is held, and at that stage either disclose the requested information (with contextual commentary, if necessary) or claim any exemptions to disclosure that it considers apply.”
“We allow this appeal on the basis of the Appellant’s first ground of appeal, that the Decision Notice was erroneous in its conclusion that information was not held.”
Judge McKeena ordered the London School of Economics to respond within 28 days.