Upper Tribunal Judge Edward Jacobs rules Tsai Ing-wen thesis controversy ‘cannot be resolved’ by Freedom of Information law

United Kingdom Upper Tribunal Judge Edward Jacobs and the 1983 PhD thesis of Republic of China in-exile President Tsai Ing-wen. Judge Jacobs refused a Freedom of Information appeal request about the thesis oral examination. (credits: Judiciary.UK/Hwan Lin)

Upper Tribunal Judge Edward Jacobs of the United Kingdom gave Republic of China in-exile President Tsai Ing-wen a pass and refused a Freedom of Information Act appeal request seeking information on the validity of her University of London PhD award. Tsai refuses to release the results of an October 16, 1983 viva examination of her thesis entitled Unfair Trade Practices and Safeguard Actions. The thesis has been at the center of a controversy since June 2019 when Tsai submitted the thesis to the London School of Economics Library, thirty-five years late. To complicate matters, the LSE now says it does not know who the examiners were that purportedly approved the thesis in 1983.

Judge Jacobs boiled it down in a non-appealable ruling stating the FOIA was inadequate to resolve questions around the validity of President Tsai’s degree. Jacobs concluded “concerns and worries about the proper form of the President’s degree cannot be resolved within the FOIA scheme.”

Judge Jacobs laid down the law in his decision. “The first issue was whether [Appellant] was pursuing a legitimate interest in seeking the information requested. It decided that he was. It [Information Review Tribunal] took account of a number of factors relating to President Tsai’s status as a public figure, comments she had made, the absence of a copy of the thesis, and the prosecution of Dr Peng for libel after questioning the award of the degree.”

“The second issue was whether processing was necessary for the purposes of [Appellant’s] interests. Disclosing the information would amount to processing. The tribunal decided that it was not necessary to disclose more than was already known. President Tsai’s name is on the contemporaneous pass list for in 1984 and the title of her thesis was published in 1985. The University had confirmed that there was an oral examination and that it holds records of that examination. The tribunal decided that this was sufficient to satisfy the legitimate interests of [Appellant].”

“The request was for information. The important word there is ‘information’. However a request may be framed, it relates to the information rather than to the document or file or other format in which it is held. Take the simplest example of a request for a copy of a letter. In law, that is a request for the information in the letter. There is a question of the format in which the information should be conveyed to the requester, but that is a separate matter.”

“The request was made to the University of London. The important word there is ‘University’. The request was not made to any of the constituent colleges of the University and did not relate to information held by any of the colleges. In particular, the duty did not apply to the London School of Economics and Political Science (LSE), which was the relevant college.”

“The University’s duty, subject to any exemptions, was to provide the information it held. The important word there is ‘held’. The duty applied to information held. The University could not disclose what it did not hold. An appeal is not an opportunity to explore why some information is not held or to try to find other ways to obtain the information. The tribunal had to decide what information the University held. That is a question of fact and, provided the tribunal made its finding rationally, it is difficult to identify an error of law in a matter of fact.”

“[Appellant] has doubts and concerns about what degree President Tsai was awarded. He has explained the reasons for his doubts by reference to publicly available information from, among others, the President herself and other FOIA requests, referring to the standard procedures that should have accompanied the degree she says she holds. He asked the University for information about her degree.”

“The issues for the tribunal were: what information did the University hold and how much should be disclosed?”

“The first issue – what information the University held – was a matter of fact. The tribunal made its finding. That was all it had to decide. There might be concerns about the accuracy of the information, but FOIA does not provide a way to decide whether it was accuracy. All that mattered was what information was held. Conflicting information might cause the tribunal to check that the University held the information it claimed to have, but that is a different matter. The tribunal made its finding and I can see no error of law in the way it made that finding or in its conclusion.”

“The second issue – how much of the information should be disclosed – involved judgments in applying the exception in section 40(2) FOIA. Those judgments were made with the help of the specialist members. The Upper Tribunal must take account of that assistance when deciding whether the tribunal made an error of law in exercising the judgment.”

“This is a matter of pure judgment. The tribunal made its judgment and explained why it decided that sufficient information was available without further disclosure.”

“FOIA takes account of the possibility that information may be withheld by the various exemptions to the duty to disclose. FOIA contains a balance between disclosure and non-disclosure. It allows for the possibility that there may be a middle position in which some information can be disclosed without the details. This is what happens when the criteria for disclosure of personal data is being considered, as it was in this case.”

“FOIA provides that data should be made available to the requester in the form requested. But this is qualified by the words ‘as far as reasonably practicable’ and it is subject to the exemptions. It may be right, as a general proposition, that there can be no substitute for original data, but within FOIA there may have to be a substitute.”

“FOIA is limited to disclosing information held. It may contradict other data, but FOIA does not provide a way to decide which is correct. [Appellant] argues that the existence of the contradictions make it more necessary to see the original data. Again that may be correct as a general proposition, but disclosure and non-disclosure have to be decided within the context of FOIA and, where they overlap and interlock, the data protection regime.”

“What matters is what information is held by the public authority. The Information Commissioner and the First-tier Tribunal have no authority to deal with a challenge to the accuracy of the record.”

“The tribunal said that the evidence merely showed that the thesis was not filed correctly in the libraries in 1984. [Appellant] disagrees with that finding. Assuming that there is merit in what he says, it does not relate to what information the University holds. It is relevant, if at all, to the accuracy of those records. But that is not an issue that can be raised under FOIA. FOIA provides a means to obtain information, not a process to resolve issues of accuracy or completeness.”

“The tribunal found that, although the theses may not have been provided to the libraries rather than lost or misfiled, that did not undermine the accuracy of the information about the degree awarded. That was a matter of judgment. I can see no error of law in the conclusion or in the way it was made. It is rational, even if another panel might have come to a different conclusion, and the tribunal took account of the relevant factors. This is really a challenge to the decision on the significance to be attached to particular points. That is properly a matter within the province of the First-tier Tribunal.”

“[Appellant’s] concerns and worries about the proper form of the President’s degree cannot be resolved within the FOIA scheme. The tribunal confined itself, properly, within its jurisdiction. In doing so, it was entitled to make its findings of fact and to exercise its judgement as it did.”