Case Reference: EA/2023/0152
Information Rights
Decided without a hearing
Before
JUDGE SOPHIE BUCKLEY
MEMBER MARION SAUNDERS
MEMBER SUSAN WOLF
Between
HOWARD LIU
Appellant
and
INFORMATION COMMISSIONER
Respondent
Decision: The appeal is allowed.
Substituted Decision Notice:
Organisation: British Library
Complainant: Howard Liu
The Substitute Decision – IC-187776-R4L2
1. For the reasons set out below the public authority is not entitled to rely on section 14 of the Freedom of Information Act 2000 (FOIA) and is obliged to comply with section 1(1) FOIA.
2. The public authority is required to comply with section 1(1) FOIA and must respond to the request for information within 35 days of the promulgation of this decision stating whether it holds the requested information and must either supply the information sought or serve a notice under section 17 FOIA including the grounds it relies on other than section 14(1).
REASONS
Introduction
This is an appeal by Howard Liu against the decision notice of the Information Commissioner (the Commissioner) with reference IC-187776-R4L2 and dated 15 February 2023, which held that the British Library was entitled to rely on section 14(1) FOIA (vexatious requests) to refuse Mr Liu’s request for information.
This appeal has been remitted from the Upper Tribunal, who overturned the previous First-tier Tribunal decision in a decision reported at [2024] UKUT 422 (AAC).
Factual background
The appeal relates to Tsai Ing-wen, former President of Taiwan. There has been public speculation about whether Tsai Ing-Wen was correctly awarded a PhD in Law in 1984 The appeal does not relate to the award of the PhD in 1984. The University of London has publicly confirmed that Tsai Ing-Wen was awarded a PhD in 1984. The University of London has also confirmed that its records state that the examiners reviewed the thesis and examined the candidate orally on the thesis. That is recorded in the decision of the First-tier Tribunal in EA/2020/0286.
The appeal has a different focus. The focus of this appeal is on the cataloguing of the thesis by the British Library on EThOS.
The tribunal has been provided with copies of email correspondence in 2015 and in 2019 between the LSE, the British Library and the University of London. It appears from that correspondence that in 2015 no physical copies of Tsai Ing-Wen’s thesis were held by any of those institutions or by IALS library. A physical copy was provided by Tsai Ing-Wen in 2019.
The British Library stated in an email in November 2019 as follows:
When a record of a UK Doctoral thesis is loaded on EThOS we allocate a running number to each thesis. The thesis records you have listed, were all loaded on EthOS on 24/06/2015.
In its response dated 12 July 2022 to the internal review relating to the request in issue in this appeal, the British Library stated:
…LSE published the thesis in question in 2015, and copy was ingested into Ethos.
In an email dated 1 September 2023 the British Library stated:
After investigation I can confirm that we made an error in asserting that the thesis in question was uploaded to our Ethos system in 2015. A metadata record for the thesis was created in the Ethos system in 2015, but a copy of the thesis itself was not uploaded and attached to that record until 2019.
The request and response
Mr Liu requested the following information on 4 April 2022:
“Please send me copies of ALL internal and external communications, correspondences, meeting minutes, emails, notes, recordings of telephone conversations, and all other records regarding cataloguing the referenced Ph.D. thesis in 2015, including but not limited to internal communications, correspondences, meeting minutes, emails, notes, recordings of telephone conversations, and all other records within the British Library and external communications, correspondences, meeting minutes, emails, notes, recordings of telephone conversations, and all other records between the British Library and the London School of Economics and Political Science (LSE) and/or the University of London and/or any other third parties in 2015.
Please send me copies of all requests made in relation to the referenced Ph.D. thesis in 2015.”
On 26 April 2022 the British Library refused the request in reliance on section 14(1) (vexatious requests) and upheld its position on internal review.
Decision notice
In a decision notice dated 15 February 2023 the Commissioner upheld the Department’s reliance on section 14.
The Commissioner accepted that there have been a large number of requests made to various institutions about the former president’s PhD award, and thesis, over a protracted period of time. The Commissioner agreed that there was evidence that individuals have acted together as part of a campaign and that where information has been disclosed, or explanations have been provided, it has resulted in the submission of further queries and requests for information about the matter.
The Commissioner was not persuaded that Mr Liu could be directly linked to any larger ‘concerted campaign’ as claimed by the British Library but he was satisfied that there was sufficient evidence to indicate that the motivation behind Mr Liu’s request was the same as that of individuals who were part of a concerted campaign; that is, they were all asking for information primarily for the purpose of calling into question the validity of Dr Tsai’s PhD thesis, and qualifications.
The Commissioner took the view that, if the complainant’s request were to be considered in isolation, it could be seen to have some value and serious purpose because it related to the academic record of an individual who became the President of Taiwan. He gave some weight to the argument for transparency particularly given that it has been the subject of some controversy.
The Commissioner took into account the information which is already in the public domain when determining the value of the complainant’s request. The Commissioner noted that the LSE, the University of London, and the British Library have all released information in response to requests that relate to the PhD award and thesis. In addition, he noted that the LSE and the University of London have made a number of public statements about the matter.
The Commissioner also considered comments made by the Information Rights Tribunal in the case of Dr Yungtai Hsu V Information Commissioner, EA/2020/0286 (2 December 2021).
It was the Commissioner’s view that the information that has been released, and statements and explanations that have been published, has allowed the public to have a full understanding about the records held relating to the relevant thesis and the award of a PhD to the former president. Given the information in the public domain about the issues to which the request relates, the Commissioner had difficulty ascertaining what value would be attained from the disclosure of the information that has been requested in this particular case, and how this would be in the public interest.
The Commissioner’s decision was that there is insufficient value and serious purpose behind the request to justify the impact and burden which would be caused to the Library if it dealt with that request.
Grounds of appeal
The grounds of appeal are, in essence, that the Commissioner erred finding that the request was vexatious.
The Commissioner’s response
In his response the Commissioner, in summary, stood by his decision notice. He also applied to strike out the appeal, which was refused.
Reply and additional submissions
We have read and taken account of the reply and additional submissions from the appellant.
Legal framework
Section 14(1) Vexatious requests
Guidance on applying section 14 is given in the decisions of the Upper Tribunal and the Court of Appeal in Dransfield ([2012] UKUT 440 (AAC) and [2015] EWCA Civ 454). The tribunal has adapted the following summary of the principles in Dransfield from the judgment of the Upper Tribunal in CP v Information Commissioner [2016] UKUT 427 (AAC).
The Upper Tribunal held that the purpose of section 14 must be to protect the resources of the public authority from being squandered on disproportionate use of FOIA. That formulation was approved by the Court of Appeal subject to the qualification that this was an aim which could only be realised if ‘the high standard set by vexatiousness is satisfied’ (para 72 of the CA judgment).
The test under section 14 is whether the request is vexatious not whether the requester is vexatious. The term ‘vexatious’ in section 14 should carry its ordinary, natural meaning within the particular statutory context of FOIA (para 24). As a starting point, a request which is annoying or irritating to the recipient may be vexatious but that is not a rule.
Annoying or irritating requests are not necessarily vexatious given that one of the main purposes of FOIA is to provide citizens with a qualified right of access to official documentation and thereby a means of holding public authorities to account. The Commissioner’s guidance that the key question is whether the request is likely to cause distress, disruption, or irritation without any proper or justified cause was a useful starting point as long as the emphasis was on the issue of justification (or not). An important part of the balancing exercise may involve consideration of whether or not there is an adequate or proper justification for the request.
Four broad issues or themes were identified by the Upper Tribunal as of relevance when deciding whether a request is vexatious. These were: (a) the burden (on the public authority and its staff); (b) the motive (of the requester); (c) the value or serious purpose (of the request); and (d) any harassment or distress (of and to staff). These considerations are not exhaustive and are not intended to create a formulaic checklist.
Guidance about the motive of the requester, the value or purpose of the request and harassment of or distress to staff is set out in paragraphs 34-39 of the Upper Tribunal’s decision.
As to burden, the context and history of the particular request, in terms of the previous course of dealings between the individual requester and the public authority in question, must be considered in assessing whether the request is properly to be described as vexatious. In particular, the number, breadth, pattern, and duration of previous requests may be a telling factor. Thus, the greater the number of previous FOIA requests that the individual has made to the public authority concerned, the more likely it may be that a further request may properly be found to be vexatious. A requester who consistently submits multiple FOIA requests or associated correspondence within days of each other or who relentlessly bombards the public authority with email traffic is more likely to be found to have made a vexatious request.
Ultimately the question was whether a request was a manifestly unjustified, inappropriate, or improper use of FOIA. Answering that question required a broad, holistic approach which emphasised the attributes of manifest unreasonableness, irresponsibility and, especially where there was a previous course of dealings, the lack of proportionality that typically characterises vexatious requests.
In the Court of Appeal in Dransfield Arden LJ gave some additional guidance in paragraph 68:
“In my judgment the Upper Tribunal 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. However, for my own part, in the context of FOIA, 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 to reach 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...”
Nothing in the above paragraph is inconsistent with the Upper Tribunal’s decision which similarly emphasised (a) the need to ensure a holistic approach was taken and (b) that the value of the request was an important but not the only factor.
The lack of a reasonable foundation to a request was only the starting point to an analysis which must consider all the relevant circumstances. Public interest cannot act as a ‘trump card’. Rather, the public interest in the subject matter of a request is a consideration that itself needs to be balanced against the resource implications of the request, and any other relevant factors, in a holistic determination of whether a request is vexatious (see Cabinet Office v Information Commissioner and Ashton [2018] UKUT 208).
The role of the tribunal
The tribunal’s remit is governed by section 58 FOIA. This requires the tribunal to consider whether the decision made by the Commissioner is in accordance with the law or, where the Commissioner’s decision involved exercising discretion, whether he should have exercised it differently. The tribunal may receive evidence that was not before the Commissioner and may make different findings of fact from the Commissioner.
Evidence
We read an open bundle and the bundle before the Upper Tribunal.
Discussion and conclusions
In Kennedy v Charity Commission [2014] 2 WLT 808, Lord Sumption, with whom Lord Neuberger and Lord Clarke agreed, said as follows, at para 153:
The Freedom of Information Act 2000 … introduced a new regime governing the disclosure of information held by public authorities. It created a prima facie right to the disclosure of all such information, save in so far as that right was qualified by the terms of the Act or the information in question was exempt. The qualifications and exemptions embody a careful balance between the public interest considerations militating for and against disclosure. The Act contains an administrative framework for striking that balance in cases where it is not determined by the Act itself. The whole scheme operates under judicial supervision, through a system of statutory appeals.
It is important to remind ourselves of those observations. FOIA creates a prima facie right to disclosure of information held by public authorities, save in so far as that right is qualified by the terms of FOIA or the information in question is exempt. Further, we remind ourselves that the qualifications and exemptions embody a careful balance between the public interest considerations militating for and against disclosure.
The purpose of section 14 is “to protect the resources (in the broadest sense of that word) of the authority from being squandered on disproportionate use of FOIA.” (Upper Tribunal, Dransfield,para 10). This formulation was approved by the Court of Appeal subject to the qualification that that Parliament had chosen to use a strong word to achieve this purpose and therefore the hurdle of satisfying it is high (see paragraph 72 of Dransfieldin the Court of Appeal and paragraph 22 of Cabinet Office v Information Commissioner and Ashton [2018] UKUT 208 (AAC).
Section 14 may be invoked on the ground of resources alone and a substantial public interest underlying the request does not necessarily trump a resources argument. The public interest in the subject matter is a consideration that needs to be balanced against the resource implications of the request, and any other relevant factors, in a holistic determination of whether a request is vexatious (paragraph 27 of Ashton).
Factors not present
There is no evidence of any harassment or distress.
Motive
There is no evidence before us that would enable us to conclude that there is any improper motive behind the request. There is nothing that would enable us to link this appellant to any wider campaign relating to Tsai-Ing Wen.
Purpose/value/public interest
Whatever the location of physical copies of the thesis in 1983/1984, the correspondence in the bundle shows by 2015 none of the relevant libraries held a physical copy of the thesis in 2015. A copy was provided to the LSE in 2019 by Tsai Ing-wen.
The correspondence also shows that:
On 24 June 2015 the LSE Theses online manager confirmed that ‘We unfortunately do not have a record of this thesis in the library’
On 24 June 2015 the Senate House Library of the University of London stated in an email that:
I have done a bit of research for you and can confirm that we have no record of the thesis in our on-line catalogue. However, we do have an old card catalogue covering theses from the 1980s and there is a card for this one which indicates we were to receive the thesis, but it never arrived. The thesis does not appear to be on the British Library Ethos service either.
In an email dated 10 August 2015 the IALS library stated that ‘the thesis isn’t on the IALS Library Catalogue’.
The EThoS memorandum of understanding between the LSE and the British Library says the following about the responsibilities of the institutions in relation to thesis records:
HEI | BL | |
5.1 Thesis records | Maintain thesis metadata in the repository and make it available for sharing via the data transfer OAI-PMH standard. | Harvest metadata from the institutional repository and make visible to researchers. Include a link to direct users to the thesis held in the institutional repository. |
Make information about theses not held in the repository available to EThOS by making catalogue records available or by supplying e- or paper title pages for cataloguing. | Create EThOS records from the information supplied. Seek to acquire missing data from institutions to maintain a full record of UK theses. |
Taken together, that evidence creates at least a question about the basis on which the British Library created an EThoS record in 2015, which might be answered by disclosure of the requested information. There is a public interest in understanding the processes by which an EThoS record is created, and in transparency in relation to whether the applicable processes are applied correctly.
The British Library has, after the event, clarified that the EthOS record created in 2015 was a ‘metadata record’, but this information was not available at the relevant time and it does not, in any event, answer the question about the basis on which the record in 2015 was created.
This is not in or view 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.
Burden
This is a very broadly framed request, but there is no evidence or estimate from the British Library as to how difficult it would be or how long it would take to search for the requested information. Without this information it is difficult to say how burdensome the request is likely to be. There is no evidence before us of any other previous requests made to the British Library with the same focus and therefore of the burden in a wider sense.
Like the Commissioner we do not find that this appellant is part of any wider concerted campaign, and therefore in our view it is not appropriate to take account of the burden on the British Library or other institutions arising out of the requests made relating to the validity of Tsai-Ing Wen’s thesis. We have not, in any event, been provided with sufficient information on the burden on the British Library arising out of this wider campaign, other than that there have been ‘many requests’ and that there has been ‘a steady flow of requests’ on this subject.
Given the lack of evidence on burden, we are not persuaded on the information before us that there would be an excessive or disproportionate burden in complying with this request.
Conclusions
One of the main purposes of FOIA is to provide citizens with a qualified right of access to official documentation and thereby a means of holding public authorities to account. It is important for that qualified right of access that vexatiousness is a high hurdle. Further, whilst we have structured our discussion around a number of convenient headings, we must take a holistic approach to our assessment and we bear in mind that the fundamental question is whether or not the request was vexatious in the sense of being a manifestly unjustified, inappropriate or improper use of FOIA.
In looking at the matter holistically we take account of the limited evidence in relation to burden, the absence of any harassment and distress caused by the request, our finding that there is no improper motive and that this was not a request where there was no reasonable foundation for concluding that the information sought would be of value to the requester or to the public or any section of the public. Overall, we are not persuaded that this request is vexatious in the sense of being a manifestly unjustified, inappropriate or improper use of FOIA.
Next steps
An appeal in which the public authority has relied on section 14 is sometimes referred to as a ‘gateway’ appeal because the public authority has not yet given a substantive response to the request. The British Library has not yet passed through the “gateway” of compliance with ss. 1, 2 and 17 of FOIA which, following the Upper Tribunal’s Decision in Malnick v IC and ACOBA [2018] UKUT 72 (AAC), the University would have to do before being entitled to raise a late exemption before the tribunal.
The correct course of action is for the British Library to issue a fresh response. In doing so the British Library should comply with its duties to provide advice and assistance, to confirm whether it holds the relevant information and to disclose the information or claim any exemptions as appropriate.
Signed Date:
Sophie Buckley 21 July 2025