The First-Tier Tribunal’s decision of 13 December 2012 in Montague v (1) Information Commissioner (2) Liverpool John Moores University EA/2012/0109 will be of interest to academic institutions, and any other public bodies whose employees have research interests not necessarily connected with their job. Anya Proops of 11KBW appeared for the University.

The Appellant Mr Montague asked Liverpool John Moores University for copies of emails sent by a senior lecturer at the University from his University email account, linked to his work with the Global Warming Policy Foundation (“GWPF”). The lecturer in question had worked at the University from November 1993 to July 2010 as a social anthropologist. In November 2009, he had become Director of the GWPF. The GWPF is a controversial organisation founded under the aegis of Lord Lawson, which promotes scepticism about man-made climate change.

The question at issue was whether the University “held” the information for the purposes of the Freedom of Information Act 2000 (“FOIA”), even if it was in fact contained in a university email account to which it had access.

Information is “held” by an authority for the purposes of FOIA if it is held by the authority “otherwise than on behalf of another person”, or is held by another person “on behalf of the authority”: see s.3(2) FOIA. That means mere physical possession of information is not enough to establish that information is “held”; it must also, to a sufficient extent, be meaningfully connected to the authority: see for example University of Newcastle v IC and BUAV [2011] UKUT 185 (AAC).

Both the University and the ICO considered that the University did not “hold” the information in this case, and the Tribunal agreed. The crucial point was that there was no connection between the lecturer’s private research for the GWPF, and the work he did within the University. The lecturer pursued the subject of global warming in his own free time, and exclusively in his own private interest. It had no bearing on his role as an academic employed in the University’s School of Sport and Exercise Science. The research was not funded by the University, and the University neither had any interest in the research nor sought to benefit from it. Since the emails were sent in a purely private and personal capacity, the University did not “hold” them.

This outcome is plainly in accordance with FOIA, and was perhaps inevitable on the facts. It should be of comfort to academic institutions whose lecturers pursue private interests. Of course, the situation would have been very different if the research had been connected in any way with the lecturer’s post. The decision can usefully be compared and contrasted with the ICO’s recent decision concerning emails sent by the Secretary of State for Education (Michael Gove) from his private email account. There, the information was in fact “held” by the Department for Education for the purposes of FOIA, even though the Department was not in physical possession of the information, because the ICO considered it concerned the business of the Department, rather than purely party political matters. The thread running through the two contrasting decisions is the same: what matters is not whether the authority actually has possession of the information, but whether the information has a substantial connection to its business.

Julian Milford