Daniel Lu v The Information Commissioner & Anor

On 15 June 2024 the University of Warwick Conservative Association held a dinner. On 17 June 2024, the University received a report that a Nazi marching song (‘Erika’) had been played at the dinner which was held off campus. On 30 June, following widespread coverage of the story and the dissemination of video images of the event and perhaps concerned that this puerile conduct apparently celebrating Nazism (possibly intended to Épater la bourgeoisie) might damage the reputation of the University, the University announced that it was conducting an investigation into student misconduct under regulation 23 of the University regulations which provides at 1.1 a definition of such misconduct:

“improper interference in the broadest sense with the proper functioning or activities of the institution, or with those who work or study in the institution, or action which otherwise damages the institution whether on University premises or elsewhere”

The scope of the investigation was to determine whether any students of the University could be identified as committing misconduct as defined by Regulation 23. In doing so, the investigation considered (a) the playing of the song; (b) the role of the University of Warwick Conservative Association President; and (c) the circulation of the video. Upon investigation of those three issues, it was established that three students could potentially have breached Regulation 23. The University concluded its investigation in September 2024.

The Appellant wrote to the University on 6 July 2024 with a detailed request for information concerning the University response to this event:

The University provided a response on 20 August providing some information and refusing much of the request on the grounds of cost. Following an internal review a further response on 24 September confirming it had provided information relating to parts 1, 4, 5, 6, 7, 8 and 9 of the request. It confirmed that with respect to parts 2 and 3 it withheld information relying on sections 36(2)(b)(ii) and 40 of FOIA. The Appellant complained to the IC on 26 September. A further response was made by the University during the Information Commissioner’s investigation, in response to which the Appellant on 28 January clarified the remaining issue as “Require the university to provide a full disclosure of all internal communications concerning the justification for treating the video’s publication as a disciplinary issue.”

The IC published his decision notice IC-334417-K7N6 on 5 March 2025. This found that some material falling within part 2 of the request was held, however the University was entitled to withhold it relying on s42 of FOIA, legal professional privilege.

In his grounds of appeal the Appellant argued that the purpose of the request was to understand why the decision was made which in his view undermined freedom of expression. “My request, were it properly considered at the time, does not pertain to a live issue but rather an issue that has already transpired,…The request is narrowly tailored to uncover why the decision was made, as well as the rationale behind that decision. “ He cast doubt o the University’s claim to rely on s42 and asserted “The university forfeits the right to confidentiality once it acts upon information in a way that endangers the rights of others”.

In his submissions of June 2025 the Appellant criticised the University’s choice of the individual who conducted the investigation, asserted that such a choice was in breach of its duty of care, made submissions with respect to Article 10 ECHR, suggesting that the disciplinary sanction was disproportionate and in breach of Article 10, arguing that any legal privilege was lost “where the communication furthers crime, fraud, or conduct equivalent in seriousness.” He argued that the misconduct charge lacked legal certainty, there was no real and pressing necessity for interfering with the Article 10 right, and the interference was not necessary. He asserted that the withheld material would disclose recognition that the University was possibly in breach of Article 10. He further argued that there was foreseeable psychiatric harm in breach of the duty of care and that this combination of Article 10 and duty of care arguments meant that the material should be disclosed.

In resisting the appeal the IC emphasised the weight to be attached to legal privilege, relying on Bellamy and O’Brien:

“.. the in-built public interest in non-disclosure itself carries significant weight which will always have to be considered in the balancing exercise once it is established that legal professional privilege attaches to the document in question(§ 41)….The in-built public interest in withholding information to which legal professional privilege applies is acknowledged to command significant weight”

He further argued (relying on Balabel) that legal advice privilege extended to “all the material forming part of the continuum of lawyer /client communications even if each communication does not expressly seek or convey legal advice:”.

In resisting the appeal the University confirmed that the request was made while the investigation was live, the material attracted legal privilege and that:

Rachel Gower provided a witness statement in her role as Director of Legal and Compliance Services for the University. She explained the disciplinary process, that the information request was made during the course of the investigation, that the withheld material was material passing between the university and its legal department in connection with legal advice or internal discussions of that advice in the legal department. Accordingly the material attracted privilege, furthermore:

“having reviewed the Information again for the purposes of this witness statement, I am strongly of the view that there is nothing within the Information or the circumstances of this case which outweighs the important principle that privileged communications between a client and their legal adviser should remain confidential. Moreover, given the timing of the Request and the University’s response, I believe it would have been particularly prejudicial to the University for its legal advice to have been disclosed to the world at large in the context of live disciplinary proceedings”

The information request was made on 6 July, three weeks after the incident; the University concluded its investigation in September 2024. At the time of the refusal (20 August) the investigation was live and the withheld material, which attracted privilege, related to that investigation. The tribunal, having inspected the material, accepts the evidence of Ms Gower. Significant prejudice would follow if the material were to be disclosed, the claims and assertions of the Appellant are speculative, without foundation. The tribunal is satisfied that the IC’s decision is correct and accepts the evidence of the University.

This appeal is without merit and is dismissed.