Hold Me Close, I’m an Academic

If I am an extremely well-regarded academic at Cambridge (don’t snigger at the back, I could be) and due to my eminence I do some unpaid voluntary work for a major international group (here, the Inter-Governmental Panel on Climate Change), the work in relation to which I do over my university email account, are those emails held by the University under the Environmental Information Regulations 2004 (“EIR”)?

Well, according to the Upper Tribunal in Holland v Information Commissioner & University of Cambridge [2016] UKUT 260 (AAC), the answer is no, they are not held. Regulation 3(2)(a) EIR provides that information is so held if it is “in the authority’s possession and has been produced or received by the authority“. The latter aspect, held Judge Markus QC, must have been intended to add something to mere possession (which the deliberate addition shown in the traveaux for the Directive also suggested). An analysis that meant it was met where it was received simply by way of an email onto the system would make those words superfluous. Judge Markus also held that “by” evidenced that the authority itself must be the recipient or producer of the information. The regulation does not simply mean, ‘came into the possession of’. If the academic orders a cat toy for his pet off Amazon and has it delivered to work, is that something received by the University? No, thought Judge Markus, it is received by the academic in his personal capacity. Any other conclusion would risk eliding the definition of a public authority under the EIR.

The question, she held at [48], is whether the information was produced or received by means which were unconnected with the authority. The connection must be such as to say that the production or receipt is attributable to the authority itself.

On the facts, the FTT had held that the academic in question had not performed his IPCC function in some capacity as officer or employee of the University.

Those holding this sort of issue close to our hearts will recognise that much the same approach is taken under s3 of FOIA: see Department of Health v ICO & Lewis [2015] UKUT 159 (AAC) and University of Newcastle upon Tyne v ICO & BUAV [2011] UKUT 185 (AAC). Nothing in Holland requires any Dutch courage to accept it.

On an entirely non-academic note, the Upper Tribunal has also now handed down judgment in Brown v Information Commissioner & Ministry of Justice [2016] UKUT 255 (AAC), which is authority for the proposition that a FOIA request for statistical information which can only be obtained from court records (i.e. by looking through court records and totting up figures) is absolutely exempt by virtue of section 32(1)(c).

Tom Cross appeared for the University of Cambridge in Holland (although in London and not Holland); Peter Lockley appeared for the ICO and I appeared for the MoJ in Brown.

Christopher Knight