Possession is 9/10s of the law - or is it? Lecturers’ private research not accessible under Freedom of Information Act

We have previously reported that institution-related business which is conducted via private email accounts is deemed to be “held” by the institution for the purposes of the FOIA and is hence accessible, subject to any relevant exemptions.

The First-Tier Tribunal issued a decision on 13 December 2012 which examined the obverse case i.e. whether the emails and other information relating to a senior lecturer’s personal interest in climate change and stored on a university’s IT system were held by the University for the purposes of gaining access under the FOIA (Montague v (1) Information Commissioner (2) Liverpool John Moores University EA/2012/0109). 

The lecturer in question was a social anthropologist in Liverpool John Moores University’s (LJMU) School of Sport and Exercise Science.  He was a well known commentator for LJMU on football hooliganism, human behaviour and sports science.  He was also a director of the Global Warming Policy Foundation (GWPF), described by its website as “an all-party and non-party think tank and a registered educational charity which, while open-minded on the contested science of global warming, is deeply concerned about the costs and other implications of many of the policies currently being advocated.”

The applicant, Mr Montague, sought access to information on climate change in the lecturer’s emails and on his personal web page, a facility provided by LJMU. 

Mr Montague argued that the lecturer had actively participated in the climate-change debate while employed by LJMU, including writing papers, giving regular media commentary and submitting a memo to the Parliamentary Science and Technology Committee, with a LJMU affiliation.  In the circumstances, he believed that there was a strong connection between the lecturer’s private research on climate change and the work he did for LMJU. The information relating to the GWPF and climate change on LJMU’s email system and personal web page hosted by it was held by LJMU and should be disclosed.

The First-Tier Tribunal disagreed. It concluded that the lecturer was pursuing the subject of global warming on his own free time and exclusively in his private interest.  His climate-change research had no bearing on his role as an academic employed in the School of Sport and Exercise Science.  The pursuit was not funded by LJMU, who had no interest in it nor did it seek to benefit from it. Research papers which were co-authored by the lecturer in the School of Sport and Exercise Science were not concerned with climate change and were the only papers produced by him in his capacity as an academic at LMJU. Further, LMJU had no input into the information placed on the personal web page, which was determined solely by the lecturer. Finally, there was no evidence that LMJU had authorised the lecturer’s media appearances in respect of climate change. It was a wholly private endeavour, unrelated to LMJU’s business.

The lesson from his case is that the possession does not determine whether an institution holds information for the purposes of the FOIA.  Emails stored in Michael Gove’s personal email account were deemed to be held in the legal sense by the Department for Education, whereas emails stored on LJMU’s system were not.  What matters is whether there is a close connection between the information and the institution’s business, irrespective of who holds it.

Have a great Christmas and we will see you in 2013.

Geraldine Swanton
Senior Associate Solicitor
Education Team
For and on behalf of SGH Martineau LLP
DD: 0800 763 1455
F: 0800 763 1001
International DD: +44 870 763 1385
E: geraldine.swanton@sghmartineau.com
W: www.sghmartineau.com



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