University of London thesis controversy before Upper Tribunal pits the Data Protection Act against Freedom of Information Act

(credits: Information Commission Office/National Archives)

While few were paying attention, a 1983 PhD thesis controversy in Taiwan has grown into a full legal battle in the United Kingdom where Upper Tribunal Judge Mark West next week will consider arguments pitting the Data Protection Act against the Freedom of Information Act.

The dispute involving the University of London has all the elements of a text-book case. The issue first arose in June 2019 when Republic of China in-exile President Tsai Ing-wen filed her PhD thesis entitled Unfair Trade Practices and Safeguard Actions with the London School of Economics Library, thirty-five years late. Embers of the academic firestorm that ensued continue to glow red hot three years later as President Tsai stubbornly refuses to release the oral examination viva report upon which the UL awarded a degree to the former LSE student.

With President Tsai stonewalling, and the two schools claiming Data Protection Act secrecy, the public is left to wonder about the identity and qualifications of the thesis examiners. Three lawsuits have been filed, two at the Upper Tribunal and one at the Information Review Tribunal, concerning Tsai’s thesis examination. Further, there are at least three complaints against the schools pending before the Information Commissioner’s Office.

In Taiwan, President Tsai put a sharp edge to the matter by asking ROC prosecutors to imprison three critics for criminal defamation. Taipei District prosecutors dropped charges against two but decided to prosecute the most vocal, Dennis Peng, news anchor of the popular True Voice of Taiwan show. Peng is presently in self-exile in California to avoid imprisonment and continues to report regularly on the growing controversy. Tsai’s exiled Chinese government lacks an extradition treaty so she is unable to see Peng behind bars. Peng recently received a monetary human rights award in Canada, the Justice Star Award, for his defense of freedom of speech.

The legal battle between the DPA and the FOI laws arises over personal data. The DPA protection of personal data has been considered by the UL and the ICO as an absolute exclusion from the transparency mandate of the FOI. Over the course of litigation different rationales have been made. First, the information about President Tsai’s thesis examiners was her own personal information. Then the reason for secrecy shifted, the identity of the examiners was the personal information of the examiners. Next, the rationale shifted again with the LSE most recently arguing that secrecy is needed to prevent pressure on the examiners to change the marks. The public has been told President Tsai might have “distress” if the examiners’ identity was revealed. More recently, the public has been told the examiners could face “immense pressure” if their names were to be made public.

The DPA provides that “the Commissioner must have regard to the importance of securing an appropriate level of protection for personal data, taking account of the interests of data subjects, controllers and others and matters of general public interest.” Thus far the Information Commissioner has sided with the UL against the general public interest.

The UL approach to examiner identities, adopted by the ICO, is not universal in the United Kingdom academic world. The University of Edinburgh Handbook for External Examining of Research Degrees takes a different approach to examiners. Regulation 16.5 provides: “External Examiner reports and any correspondence engaged in by the External Examiner in connection with their External Examiner duties are disclosable in line with the University’s freedom of information obligations.”

Kevin Haynes, the LSE “Head of Legal Team” disagrees with the UL about examiner identity disclosure arguing that they are like other university employees carrying out a public duty. To make good on his view, Haynes gave two names of purported examiners to the ROC prosecutors in Dennis Peng’s case. One slight problem however, Haynes was “likely inaccurate” because of a “hurried view” according to his subordinate, LSE Information Manager Rachael Maguire.

The legal question of FOI exclusions for the examiners is one of first impression, meaning that Judge West will have little precedent to guide him in sorting out which law overrides the other. The facts of President Tsai’s case, with its tardy thesis, may well be distinguishing enough for a narrow court ruling that only covers Tsai’s case. However, if the Upper Tribunal finds that the larger matter of the necessity of verification of qualification is at issue, Tsai’s thesis case could have a widespread effect on the examination process for advanced degrees in all of the United Kingdom.