Upper Tribunal Judge Edward Jacobs has issued a significant decision in a long-running legal controversy over the 1984 PhD award by the University of London to Republic of China in-exile President Tsai Ing-wen for a missing thesis. The phantom thesis finally surfaced in June 2019 when Tsai submitted it to the library at the London School of Economics and Political Science, thirty-five years late.
This is not Judge Jacobs first encounter with President Tsai’s thesis. Judge Jacobs ruled on October 18, 2022, “[REDACTED]’s concerns and worries about the proper form of the President’s degree cannot be resolved within the FOIA scheme.” Jacobs had decided that personal data exclusions prevented the University of London from revealing whether Tsai’s viva exam was about her thesis or merely a transfer viva from the Masters to PhD program.
President Tsai has battled allegations of academic fraud for four years because of the tardy thesis and her refusal to disclose her oral examination viva report on the thesis. Strong public interest flooded both the UL and the LSE with Freedom of Information requests. Both schools have issued public statements defending President Tsai’s PhD award and fended off the FOI requests, claiming personal data exemptions in the law prevented disclosure of Tsai’s student records.
In the face of stonewalling by President Tsai and the two London schools, members of the public shifted their FOI requests to topics not protected by personal data restrictions. The next barrier thrown up against researchers was allegations of vexatiousness. FOI requests were routinely refused as vexatious under blanket policies. Then the Information Commissioner, John Edwards, joined the game and protected the two schools by his refusal to consider complaints deemed vexatious. Edwards went a step further and even refused to issue decision notices thus depriving FOI requesters the right to use the Information Review Tribunal to hear their complaints. Litigation has followed the thesis controversy and kept both schools busy dealing with the matter. Now the British Library will be getting a taste of the legal action.
Professor Hwan Lin was the first to realize the role of the British Library in the Tsai thesis controversy. Lin noted the British Library had a catalog entry for the thesis in its online theses collection called EThOS but no copy of the thesis. The library brushed off Lin but eventually other researchers realized there were problems with the British Library version of events.
A TIME magazine cover story on Tsai Ing-wen’s candidacy for ROC president, published in June 2015, triggered a flurry of activity in the United Kingdom. International media attention on Tsai’s PhD award prompted an internal investigation on the whereabouts of Tsai’s thesis entitled Unfair Trade Practices and Safeguard Actions.
On the same day of the LSE internal investigation, June 24, 2015, the UL made a search for the missing thesis. When Senate House librarians at the UL could not find Tsai’s thesis they made a trip to the storage room and examined the old card catalog where they found a notation that the thesis was never received.
The same day, June 24, 2015, that both schools came up empty-handed, the British Library entered Tsai’s thesis into its online data base, despite lacking a copy of the thesis. Curiously, the catalog entry was in violation of the EThOS protocol against academic fraud that required the British Library to limit its data harvest only from official library channels. On June 24, 2015, neither the LSE nor the UL libraries had anything to harvest, no thesis and no metadata to share with the British Library.
A member of the public requested information from the British Library on April 4, 2022, about how the British Library was able to catalog a thesis in 2015 when no library had a copy. The library, following the LSE, the UL, and the ICO strategy turned down the FOI request as vexatious. An Internal Review was requested. British Library CEO Roly Keating conducted the review and upheld the finding of vexatiousness. Keating explained the LSE published the thesis in 2015 and that the British Library had a copy from then. Both of Keating’s claims were false.
When I learned of Keating’s falsehoods, I pressed the British Library for proof of Keating’s claims. Instead, I got an explanation that Keating made a mistake. I offered my letter of explanation for submission to the Information Review Tribunal. However, Judge Stephen Cragg ignored the false internal review claims and branded the FOI requester as vexatious and intransigent. Outraged at Keating’s falsehoods ignored by Cragg and the insults about the requester, I volunteered my services for an Upper Tribunal hearing.
Judge Jacobs sets out the British Library story in his decision starting with the FOI request: “It concerned its records relating to the PhD degree of the then President of Taiwan, Dr Tsai. The Library refused the request on the ground that it was vexatious under section 14(1) of the Freedom of Information Act 2000. It maintained this position on internal review. [REDACTED] complained to the Information Commissioner under section 50 of the Act, but the Commissioner decided that the Library had been correct to rely on section 14(1).”
“[REDACTED]” appealed against the Commissioner’s decision to the First-tier Tribunal. The Commissioner applied for the appeal to be struck out, but the tribunal refused and proceeded to hear the case. After considering the papers, the tribunal dismissed the appeal.”
“[REDACTED] applied for permission to appeal to the Upper Tribunal. I directed a hearing, which took place by CVP on 20 March 2024. [REDACTED] attended, as did his representative Mr. Richardson, who is acting pro bono. I am grateful to him for his arguments. The Information Commissioner was not required to attend and did not do so.”
“An appeal Iies to the Upper Tribunal on ‘any point of law arising from a decision’ (section 11(1) of the Tribunals, Courts and Enforcement Act 2007). The test is whether there is a realistic prospect of an appeal succeeding (Lord Woolf MR in Smith v Cosworth Casting Processes Ltd [1997] 1 WLR 1538). I consider that the test is satisfied.”
“Mr Richardson’s first ground referred to exhibits AA and BB. They are attached. Unless I have misunderstood them, they are from the British Library to Mr Richardson and admit that the records were inaccurate. They referred to actions relating to a copy of the thesis in 2015, when it was not available physically until 2019. As Mr Richardson pointed out, the request related to the records in 2015. These emails appear to be a belated admission that those records were incorrect. I give permission on this ground.”
“Mr Richardson’s second ground was that the tribunal had not relied on the burden on the Library without quantifying it. He noted that the Library had not relied on the section 12 exemption. I give permission on this ground, although it is possible that the tribunal was referring to the burden in the general sense of having to undertake a search for which there was no good purpose.”
“Mr Richardson’s third ground was that the purpose of the request related to the Library’s records, not to the thesis itself. The subsequent discovery of the error in the records tends to show that there was some purpose in the request. I give permission on this ground also. The tribunal found (paragraph 28 of its written reasons) that [REDACTED]’s purpose was to show that the thesis did not exist. It identified the submission on which it relied in paragraph 7 of the refusal of permission to appeal. The meaning of that submission takes on a different meaning once it is understood that the documentation could not be correct if there was no physical copy of the thesis available in 2015.”
“Mr Richardson’s fourth ground was that the tribunal had shown bias. He did not allege the classic grounds for bias – race, class, religion or gender. Rather, he used this as a convenient heading to include: (a) assuming that [REDACTED] knew what had been in other requests relating to the thesis; (b) misconstruing the request, which was not about whether the PhD had been properly awarded – a matter for the University of London, not the Library; and (c) finding persistence and intransigence without evidence. If this were an allegation of bias in its traditional sense, I would refuse permission on this ground. I prefer to read it as a label to bring together the individual points made that I have itemised above. On that basis, I give permission on this ground.”
Judge Jacobs ordered the Information Commissioner to respond within one month. If Jacobs is not satisfied with the ICO response he signaled his intention to either return the case to the Information Review Tribunal for a new hearing or conduct a second hearing himself. Judge Jacobs did not order the removal Judge Cragg, so if the case gets returned for a new hearing Cragg will have to be mindful that Jacobs earmarked the criticisms of misconstruing the FOI request and making assumptions about the requester without evidence and take care to not repeat his mistakes.
This article has been edited for clarity.
Richardson Reports 
Fascinating. Keep pushing her to tell the truth.
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