Cheng-Liang Yang v The Information Commissioner & Anor

Evidence and matters considered

Background

"Unfortunately her thesis has gone missing (we believe this occurred during a transfer of these from Senate House Library to the IALS) and the original deposit is no longer available."

"Dr Tsai Ing-wen, who is now the President of Taiwan, was awarded a PhD in March 1984 following the submission and examination of her thesis by two examiners. While it remains unclear whether copies were deposited with the University's library, that has no bearing on Dr Tsai's PhD, which was correctly awarded.

The University categorically denies any allegation of wrongdoing or falsehood made against any members of staff in relation to the search for copies of this thesis. All University of London staff who have handled enquires related to this thesis have done so with the utmost integrity.

LSE has an electronic copy of the thesis available to access via their online thesis system [hyperlink provided].

Role of the Tribunal

If on an appeal under section 57 the Tribunal considers—

that the notice against which the appeal is brought is not in accordance with the law, or

to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently, the Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner; and in any other case the Tribunal shall dismiss the appeal.

On such an appeal, the Tribunal may review any finding of fact on which the notice in question was based.

Peter Wilson -v- The Information Commissioner [2022] UKFTT 0149 in which the FtT said:-

30...the Tribunal’s statutory role is to consider whether there is an error of law or inappropriate exercise of discretion in the Decision Notice. The Tribunal may not allow an appeal simply because it disagrees with the Information Commissioner’s Decision. It is also not the Tribunal’s role to conduct a procedural review of the Information Commissioner’s decision making process or to correct the drafting of the Decision Notice.”

Forstater v Information Commissioner and others [2023] UKUT 303 (AAC) where the UT at para 40 said:-

the FTT is required under section 58 of FOIA to decide independently whether the Information Commissioner’s decision was in accordance with the law. In doing so the FTT “must apply the law afresh to the request taking account of the issues presented at the hearing or identified by the First-tier Tribunal.”: ICO v Home Office [2011] UKUT 17 (AAC) at paragraphs [55]-[60];

the “ordinary presumption” is that it is for an appellant to prove their case. The burden will rest with the appellant except where statute expressly or impliedly provides otherwise:..Neither FOIA nor the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2008 contain any express provision about the burden of proof and neither by implication remove the ‘ordinary presumption’ either; and

however, the concept of the burden of proof is of secondary importance in tribunal proceedings which involve a full merits review, since to apply strict burdens of proof may prevent the tribunal from properly discharging its responsibility to decide the facts for itself and/or exercise any discretion afresh:..."

Request to appeal (summary)

In general what is the reason [UoL] must receive a physical copy of the thesis from the examiners before the thesis can be published?"

FOIA

"...the UT was right not to attempt to provide any comprehensive or exhaustive definition. It would be better to allow the meaning of the phrase to be winnowed out in cases that arise.... I consider that the emphasis should be on an objective standard and that the starting point is that vexatiousness primarily involves making a request which has no reasonable foundation, that is, no reasonable foundation for thinking that the information sought would be of value to the requester, or to the public or any section of the public. Parliament has chosen a strong word which therefore means that the hurdle of satisfying it is a high one, and that is consistent with the constitutional nature of the right. The decision maker should consider all the relevant circumstances in order toreach a balanced conclusion as to whether a request is vexatious. If it happens that a relevant motive can be discerned with a sufficient degree of assurance, it may be evidence from which vexatiousness can be inferred. If a requester pursues his rights against an authority out of vengeance for some other decision of its, it may be said that his actions were improperly motivated but it may also be that his request was without any reasonable foundation. But this could not be said, however vengeful the requester, if the request was aimed at the disclosure of important information which ought to be made publicly available..."

"You must differentiate between cases where the requesters are abusing their information rights to engage in a campaign of disruption, and those where the requesters are using FOIA as a channel to obtain information that will assist their campaign...If the requests are motivated by a genuine desire to gather information about an underlying issue, section 14(1) may still apply. This is if the aggregated burden of dealing with all the requests has become disproportionate to their value...However, it is important to recognise that campaigns are not in themselves vexatious. The existence of a campaign may be the result of a legitimate public concern about an issue and so reflect a weighty public interest in the disclosure of the information."

The position of the parties (in summary)

the subject matter may be of public interest.

when a request seeks transparency and accountability it will have value or serious purpose.

UoL considered that the motive was to cause undue disruption as part of a wider campaign surrounding the Thesis.

UoL's view was that responding to the Request "could lead to high numbers of follow on questions from the complainant and other requesters..."

the IC had reviewed the other requests regarding the Thesis and "noted the similar theme of the questions in the complainant’s request... and references a response from another requester" which "supports the argument that the request is in fact part of a wider campaign"

"34. Having balanced the purpose and value of the request against the detrimental effect on the University, the Commissioner is satisfied that the request was not an appropriate use of FOIA procedure"

in the initial reply (102) said:-

"..the University considers that your request has the potential to cause a disproportionate or unjustified level of disruption, irritation or distress"

"Your request has met one or more of the following criteria of a vexatious request being a burden on the authority; using abusive of aggressive language; bearing a personal grudge; being of unreasonable persistence, giving unfounded accusations or a deliberate attempt to cause annoyance".

in the review (108) referred the Appellant to their official statement and added:-

"However, in your request for Internal Review, you mentioned that you were not concerned with President Tsai Ing-Wen, and wished to compare the ‘USA and UK education systems’ therefore please see a link to current PhD regulations at the University of London..."

This is my first time making the request. How could UoL judge this request as being of unreasonable persistence?

The questions of my request are simple and straightforward. How do these questions consume UoL’s resources and cause additional burden?

The words and tone expressing in the correspondence with UoL are polite, thankful, and appreciated. Why does UoL consider that my request is using abusive or aggressive language, bearing a personal grudge, or giving unfounded accusations?

My request is for a better understanding on why UoL made this regulation for publishing theses, and for clarifying the ambiguous term ‘physical copy of the candidate’s thesis’ clearer. Obviously, the information sought would be of value to the public. Why does UoL consider my request as a deliberate attempt to cause annoyance?

"1 hope UoL just misunderstood my request rather than attempting to hide something from the public. As mentioned above, to promote a culture of openness and accountability across the public sector is the purpose of the FOIA. Openness is fundamental to the political health of a modern state. Unnecessary secrecy in governments lead to arrogance in governance and defective decision-making.Moreover, I consider myself to be a high-level intellectual and a person respected by society. UoL’s reason for refusal has insulted my character and damaged my reputation. Therefore, I profoundly and seriously request UoL to fully respond to my FOIA request in compliance with the FOIA’s openness and transparency policy. If so, it may reduce the damages UoL has already done to me; otherwise, I will take further steps to file for libel damages in court"

they said they considered that the Request was part of "...a concerted campaign of similarly themed requests submitted over 2 years to both the University of London and LSE, designed to further certain theories about the academic record of President Tsai Ing-Wen"

they referred to two public statements which "...sets out all information and understanding available in relation to the matter of Tsai Ing-Wen’s PhD award."

they referred to 4 previous decision notices issued by the IC "on this matter" where in one the IC had said:-

.“the intent of these requests is clearly to try to add weight to theories around the falsification of President Tsai’s PHD, which have already been considered at length by the Commissioner and the Tribunal and found to be entirely lacking substance…”

they referred to the Appellant's stated motive for the Request but say that they have had many requests from:-

"... people who state that their interest is not related to the Tsai Ing-Wen campaign, but who subsequently continue to ask specific questions relating to the issue of Tsai Ing-Wen"

and they say on this that:-

"...as this response from the requester caused uncertainty over whether or not it forms part of part of the campaign around Tsai Ing-Wen, we responded to them with the information we hold in relation to the request. This information was a link to the Regulations for the Degrees of MPHIL and PHD"

they explained that the initial use of section 14 was due to

"the similarities between this request and others which have formed part of the campaign relating to the thesis of Tsai Ing-Wen. Many of these requests focus on the format of a thesis, as the only copy of Tsai Ing-Wen’s thesis available is currently electronic"

that UoL had just 2 members of staff dealing with all FOIA and other information rights matters.

an explanation as to why UoL considered that there is (or was) a campaign of making requests relating to Dr Ing-Wen's thesis including that that UoL had received 159 requests relating to Dr Ing-Wen's PhD starting in 2021, the pattern of these requests were at times high over a short period (eg 130 in January /February 2022) and in many cases used the same terminology and cross referred to other requests.

evidence of the personal nature of criticisms against UoL staff in emails and the "aggressive and inappropriate tone" in emails connected to the Dr Wen thesis issue

"The request relevant to this complaint does have a value and serious purpose – that being to identify whether the PhD certificates made public in relation to Tsai Ing-Wen are genuine, and therefore whether the President of Taiwan’s stated academic history is genuine."

"The University of London had reason to identify this request as relating to the campaign around Tsai Ing-Wen’s thesis and so applied the exemption at S14(1). Our reasons for doing so are stated above and we believe the exemption applies if the requester is asking for information in relation to this campaign.

The requester’s statement at the Internal Review stage caused doubt as to whether or not the request did form part of the campaign. As we couldn’t state for certain whether or not the request formed part of the campaign, we then provided information relating to the current regulations for submitting PhDs which includes all the information we hold about current requirements around the format of a thesis"

The motives of the requester are: (1) to understand the rigorous level of a PhD degree awarded by the University of London (UoL), (2) to clarify the ambiguous term “physical copy of the thesis” for better understanding the UoL’s procedure ofawarding a PhDdegree, (3) to encourage what UoL had done well and to improve what UoL had not yet done as well. The questions raised here are neutral and has no intention to target the thesis of President Ing-Wen Tsai. It has been well known that either in US or UK, a typical university’s requirement for the award of a PhD degree is that successful candidates must submit the final revised version of their theses to their schools and place it in the library for public reference (see appendix 2). For example, in University of Oxford, a candidate must submit “a finalized electronic copy of the thesis” to the Oxford Research Archive; in the University of Edinburgh, the student is required to submit “the final version of the thesis” to the College Postgraduate Office; in the University of Chicago, there is a term “final revised version of the dissertation (thesis)”, and even in UoL, there is the term “copies of the successful thesis”. Yet, the term “physical copy of the thesis” mentioned in UoL’s response relates critically to whether a student can be awarded a PhD degree, and therefore it needs to be clarified. Moreover, in UoL’s response, it is the examiners rather than the student who should submit “physical copy of the thesis” to the university. Its reason could be interesting and worthy of reference. The Commissioner had acknowledged that my request may be of public interest and accepted that the request would have value or serious purpose (see Appendix 1 paragraph 25, 26).

"...it is not in my case. I am a scholar and I appreciate the value of academic integrity and educational ethics. This value could be achieved by seeking transparency and accountability, which formed part of my request and was accepted by the commissioner (see Appendix 1 paragraph 26). I sincerely hope that the commissioner can notice that connecting me with a baseless vexatious group has damaged my reputation greatly."

"39...there is every possibility that the Appellant’s request may have been set up in the same manner as the previous 11 requests relating to the UoL’s PhD regulations and requirements

The Commissioner in no way seeks to suggest this was the work of the Appellant, but simply wishes to provide a picture of how the UoL’s FOI team was being affected by issues relating to ‘the PhD’ on the day the Appellant made their request"

"50...the Commissioner submits that the fact that the Appellant made their request with reference to a previous request relating to ‘the PhD’, while asking questions about PhDs, at a period of time when the UoL was being inundated with requests about ‘the PhD’, strongly suggests that the Appellant’s request was made in concert with others and was part of the wider campaign of requests relating to ‘the PhD".

refuted the suggestion he was part of a concerted effort or a wider campaign of requests and said that it was his first request to UoL, his questions were straightforward and he had no intention to target any individual

said his motives were (66):-

"32...to conduct a comparative study of the education systems in the UK and the USA..."

"to understand the rigorous level of a PhD degree awarded by [UoL]"

"to clarify the ambiguous term “physical copy of the thesis” for better understanding the UoL’s procedure of awarding a PhD degree

"to encourage what UoL had done well and to improve what UoL had not"

set out his submissions on the value and serious purpose (66) for the Request and referred to transparency and accountability and holding public authorities to account and Justice.

Our review

Was the Request part of a concerted campaign?

"This request forms part of a campaign of requests related to the thesis of President Tsai Ing-Wen. This request relates to the stated desire of those taking part in this campaign to demonstrate that published pictures of President Tsai Ing-Wen’s PhD certificate are not genuine"

The Commissioner submits that the request was worded inconspicuously, in an attempt that the UoL would view it as a request that was separate from ‘the PhD’ requests.

However, the manner in which the request was made and the timing of the request, strongly suggests that the Appellant’s request was made in concert with others and was part of the wider campaign of requests relating to ‘the PhD’"

while the suspicions of and assumptions made by UoL are understandable we have not been shown evidence that clearly demonstrates that the Request was a concerted part of a campaign of the type discussed in Duke and the Guidance.

UoL also said (149) that it "initially considered" the IC's previous decision that “the intent of these requests is clearly to try to add weight to theories around the falsification of President Tsai’s PHD, which...have already been found to be entirely lacking substance…” applied to the Request but thatthey had some doubt as to whether or not the Request did form part of a campaign.

while UoL say that they had requests which started off saying they are not part of a campaign about the Thesis and Dr Wen but then morph into those topics they did not demonstrate that this was the situation for the Request.

the Appellant has throughout maintained the position that he is not part of a concerted wider campaign and in the Grounds of Appeal (18) expressed concern about being connected to a "baseless vexatious Group".

the IC, when setting out activity about the Thesis on or about the same day as the Request, said (54) " The Commissioner in no way seeks to suggest this was the work of the Appellant"

the Appellant said that there was (107) "...no interest in who was awarded a PhD nor the name "Tsai Ing-Wen".

Harassment

The University added that, although not applicable to the complainant's correspondence it has received a number of aggressive and accusatory emails from requesters on this subject as well as staff names and photos appearing on a blog. This has caused distress to University staff as well as the increased volume of requests."

Burden

Motive

"The motives of the requester are: (1) to understand the rigorous level of a PhD degree awarded by the University of London (UoL), (2) to clarify the ambiguous term “physical copy of the thesis” for better understanding the UoL’s procedure of awarding a PhD degree, (3) to encourage what UoL had done well and to improve what UoL had not yet done as well"(17)..."In conclusion, being a UK trained scholar, I sincerely believe that through my request UoL could be even more reputable." (18)

the Request (99) derived from a previous question about the Thesis which the Appellant must have seen.

the original Request refers to the title of the Thesis.

the original Request (99) question 1 said "What is the reason [UoL] must receive a physical copy of the thesis mentioned above from the examiners before the thesis can be published" and where "the thesis mentioned above" is expressly, the Thesis.

the Appellant was aware that original question 1 might cause "irritation" and changed it (107) to remove reference to the Thesis.

the Grounds of Appeal in analysing the Regulations appear to have as a focus the same issues as those involving the Thesis (16) even though Dr Ing-Wen's PhD was awarded in 1984 and the Regulations are as from 2019.

the Appellant referred somewhat obliquely to the Thesis when saying during the proceedings (68) "...If UoL‘s procedure or requirements of awarding a PhD degree has flaws, unqualified students might get the degree, which violates justice."

the Appellant chose to make the Request to UoL as opposed (as far as we are aware) to any other Higher Education Institutions with questions that indicate a connection to the issue of the Thesis which may have been more than a simple coincidence.

value/serious purpose

"The request relevant to this complaint does have a value and serious purpose – that being to identify whether the PhD certificates made public in relation to Tsai Ing-Wen are genuine, and therefore whether the President of Taiwan’s stated academic history is genuine."

UoL’s major performance is to create and maintain its high level of academic standard. The Appellant’s questions about the procedure of submitting a PhD thesis to the University and the requirements of the PhD degree to be awarded are one of the approaches to achieve this performance. Through the Appellant’s questions, if there is a fact of being responsible for what the University has done badly, it could be revealed. The demand for UoL accountability then could be realised"

The Appellant raised a question asking why UoL must receive a physical copy of the thesis from the examiners before the thesis can be published. This question makes the public understand the reason of its decision. Meanwhile, from the UoL’s response to the question, the public could judge whether the UoL’s decision is reasonable.

Ambiguous PhD regulations could lead to inconsistent practices for UoL to grant a PhD degree, because these regulations give a manipulated room to the University. Different staff could have different explanations. Transparency, i.e. to make these regulations clear, is the way to uncover the UoL’s black curtain if it has. In the Appellant’s request, the term “physical copy of the thesis” is vague and therefore, it is necessary to be clarified.

Justice is fairness in the way people are dealt with. Ambiguous research regulations as shown in the Appellant’s request could result in different students are treated differently on the same things. If UoL‘s procedure or requirements of awarding a PhD degree has flaws, unqualified students might get the degree, which violates justice. At this circumstance, the UoL’s academic credibility and reputation could be damaged. Furthermore, the academic reputation of the whole British higher education system might also be suffered from this situation."

the issue of the ("missing") Thesis and Dr Ing-Wen and LSE/UoL has been the subject of previous requests.

UoL and LSE have previously given public statements about this issue.

the Request (as re stated) would not in any event assist to any material extent in adding more information that would objectively assist the public interest.

it appears that Dr Ing-Wen was at LSE in the early 1980's and awarded a PhD in 1984 when she was in her 20s and well before she became a public figure.

the topics are highly specific and focused only on the need for and use of physical copies of a thesis.

these questions might be of interest to those who undertake the process of awarding degrees or organising the publication of theses or are responsible for updating the Regulations but not otherwise.

Overview

the Request has not been shown on the balance of probabilities to be a concerted part of a wider campaign and the issue of harassment was not said by UoL to be present as regards the Appellant.

the Request was not burdensome in itself and in any event when amended was in our view effectively answered by the provision of the Regulations (which itself was somewhat undermining of UoL's section 14 position).

we can see that dealing with so many requests broadly about the same topic from other requesters had become burdensome but we did not conclude (on the evidence) that the Appellant was part of a concerted effort or that he had made any relevant previous requests.

the Appellant's stated motives were to seek information to compare education systems but additionally we concluded he had an interest in the Thesis and UoL's handling of it.

there is in our view no material objective value in the answers to the questions asked even after revision. However we accept that the UT in Dransfield held that:-

".. a lack of apparent objective value cannot alone provide a basis for refusal under section 14, unless there are other factors present which raise the question of vexatiousness."

Decision