Dr Yeong-Ah Soh GIA 116 2014

JurisdictionUK Non-devolved
JudgeJudge O Stockman
Judgment Date10 March 2016
Neutral Citation2016 UKUT 249 AAC
Subject MatterInformation rights
RespondentThe Information Commissioner and Imperial College London
CourtUpper Tribunal (Administrative Appeals Chamber)
Docket NumberGIA 116 2014
AppellantDr Yeong-Ah Soh
Dr Yeoung-Ah Soh v Information Commissioner and Imperial College London [2016] UKUT (AAC)

IN THE UPPER TRIBUNAL Case No. GIA/116/2014

ADMINISTRATIVE APPEALS CHAMBER

Decision

This is an appeal by the information requester, brought with my permission, against the decision of the First-tier Tribunal (“the FTT”) made on 10 October 2013. The question which I have to decide is whether the decision of the FTT involved the making of an error on a point of law.

For the reasons I give below, I decide that the decision of the FTT has involved the making of an error of law. I set aside the decision of the FTT under section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007 and remit the case to the FTT with directions for its reconsideration.

Reasons

Background

1. Dr S (“the appellant”) was employed by Imperial College London (“the second respondent”) as a lecturer on a probationary basis. A senior colleague acted as her academic adviser until August 2010. From then, a second colleague, Dr M, took responsibility for acting as the appellant’s academic adviser. In February 2011 and May 2011 respectively, the appellant brought grievance proceedings against each of the academic advisers. As part of the grievance the appellant complained that students were being “spoon-fed” and alleged that Dr M gave students some of the examination questions before the exams. The appellant repeated the allegations at her final Probation Review in May 2011. An investigation into the allegations, led by the Head of a different Department, was conducted by the second respondent. The claims were assessed as being without foundation in November 2011.

2. Arising from the making of allegations of professional misconduct against Dr M and from her alleged conduct in the course of the investigation, the appellant was subjected to disciplinary proceedings by the second respondent in December 2011. She was dismissed on 11 January 2012. She initiated an internal appeal process. Against this background, on 23 January 2012 the appellant wrote to the second respondent and requested information under the Freedom of Information Act 2000 (“the FOIA”) in the following terms:

“I would like a copy of all the 1st year Progress Tests, and exams and materials for [specified] courses offered at [a specified] Department, during the period 2002-2012, with the individual instructors responsible for the different parts of exams and tutorials mentioned on the documents”.

3. She wrote again on 31 January 2012 to make further requests in the following terms:

“I would like in addition the lecture notes and revision lectures by [Dr M] for [specified] courses offered during the period 2009-2012”.

and

“In addition, I would like a table of the SOLE [student online evaluation] scores of all the instructors at the [specified] Department from 2002-2012. If the identity of the individuals needs to be protected, then you can refer to a particular individual with a symbol, but keep the same symbol for the same individual for the SOLE score information over all the years requested”.

4. On 20 February 2012, the second respondent provided some of the information requested on 23 January 2012 but refused disclosure of the remainder, claiming that the material was exempt from disclosure under section 43(2) of the FOIA. On 21 February 2012 the appellant requested an internal review of the refusal.

5. On 28 February 2012, the second respondent refused to comply with the requests of 31 January 2012, claiming exemption to the first part under section 43 of the FOIA and exemption for the second part on the basis that the SOLE scores were personal data under section 40(2). On 28 February 2012 the appellant extended her request for review to include the further refusal. On 14 March 2012 the second respondent upheld its decision to refuse to provide the information, relying on exemptions under sections 43(2) and 40(2) of the FOIA.

6. On 10 April 2012 the appellant commenced proceedings against the second respondent in the Employment Tribunal (“the ET”), claiming unfair dismissal, race/sex discrimination, and detriment for public interest disclosure.

7. The appellant complained to the Information Commissioner (“the first respondent”) about the refusal of the second respondent to provide the requested information. She indicated that the third element could be dropped from the complaint (the SOLE scores). She further narrowed the scope of the information she was seeking to:

“Copies of all first year progress tests during the period 2002-2012, with the individual instructors responsible for the different parts of the progress tests mentioned on the documents”.

and

“Copies of the tutorials (rather than all material) for the [specified] courses offered by Dr M (not all instructors), during the period 2009-2012 (not 2002-2012)”.

8. By this, she had excluded from the request copies of all exams and materials from 2002-2012, restricted the request to tutorial material prepared by Dr M, and omitted from the request all tutorial material prior to 2009.

9. Subsequently, the second respondent agreed to disclosure of all first year progress tests during the period 2009-2012, indicating that progress tests were only introduced in 2009. The second respondent further maintained that it did not record the names of the individual instructors responsible for the different parts of the progress tests. The appellant indicated that she did not require the first respondent to form a view on that issue.

10. The requested information at issue in the complaint to the first respondent therefore had narrowed to:

“Copies of the lecture notes and revision lectures by Dr M for the [specified] courses offered during the period 2009-2012”.

and

“Copies of the tutorials for the [specified] courses offered by Dr M during the period 2009-2012”.

11. In the meantime, in July 2012, the appellant’s dismissal was confirmed by the second respondent after the completion of a formal internal appeal process.

12. In relation to the appellant’s complaint to the first respondent, the second respondent continued to rely on section 43 of the FOIA. However, on 2 August 2012 the second respondent submitted to the first respondent that the appellant’s requests were vexatious, relying on section 14 of the FOIA for the first time. On 17 August 2012 the second respondent directly raised the issue of section 14(1) in correspondence with the appellant.

13. On 14 September 2012 the second respondent set out in tabular form a list of dates, type of request and nature of request made by the appellant to the second respondent between 20 January 2012 and 31 July 2012 in support of this submission. This showed some 44 contacts in addition to the FOIA requests which were the subject of the complaint. Of these, three were data subject access requests under the Data Protection Act 1998 (“the DPA”), one was a supplementary subject access request, five were further FOIA requests, four were supplementary FOIA requests, three were FOIA review requests, one was a supplementary review request, 26 were e-mails variously concerning the DPA requests and the FOIA requests and one a telephone call.

14. The second respondent further provided the first respondent with a copy of a statement made by Dr M in the course of the appellant’s disciplinary proceedings, indicating the impact of the appellant’s allegations on his health, his family life and his work.

15. The first respondent determined the appellant’s complaint on 26 February 2013 (decision notice FS50449944). In making the decision on the issue of whether the first respondent’s requests were vexatious, the first respondent considered the nature of the communications from the appellant to the second respondent at the dates on which the requests referred to above were refused – namely 20 and 28 February 2012. This period involved some 14 contacts between the appellant and the second respondent in addition to the two FOIA requests.

16. The first respondent found that the appellant’s requests, when considered in the context of the various requests made in January and February 2012, were likely to impose a significant...

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