“Immediately release the Environmental Investigation report.” • part two: “Details of all other independent interviews UCL conducted based on the names I provided to UCL.”
“…reports of this nature are an internal management tool for UCL. As a general rule, such reports should not play out in the public domain because, amongst other things, if they were routinely made public, this might have a significant impact on the willingness to commission such investigations and the accuracy and effectiveness of other such reports in the future. This would be detrimental to UCL, its staff and its students.”
“… should person A in an interview session name Person B, we will be maintaining confidentiality in that respect and person B will not be informed about person A’s disclosure.”
“As the Tribunal will notice from inspecting the withheld information, the Environmental Investigation report sought in part two of the Appellant’s request has a number of appendices including interviews conducted as part of the Environmental Investigation. The Commissioner’s position is that the entire Report including the appendices (sought in part one of the request) is exempt from disclosure under sections 36(2)(b)(ii) and 36(2)(c) FOIA (DN §2). Further, to the extent that theentire Report including its appendices contains details of the interviews sought in part two of the request, it is also exempt from disclosure under section 40(2) FOIA per the DN §3. The Commissioner submits that the Tribunal is tasked with determining whether the Commissioner’s decision that University College London (“UCL”) were entitled to withhold the Report from disclosure under FOIA sections 36(2)(b)(ii), 36(2)(c) and 40(2) in response to the Appellant’s FOIA request contained an error of law or that any discretion exercised by the Commissioner ought to have been exercised differently. Further, the Tribunal is to consider the application of the exemptions and the public interest test where relevant, in the circumstances as they existed at the time of that UCL’s response was required by law (2 July 2022 per §43 of the Commissioner’s Response). Ultimately, the Tribunal is concerned with the potential disclosure of the entire Report to the world under FOIA in circumstances where UCL considered that the full report is not suitable for publication.”
“This appeal challenges the decision of the Information Commissioner’s Office (ICO) to uphold University College London’s (UCL) refusal to disclose the Environmental Investigation (EI) report under Sections 36 and 40 of the Freedom of Information Act (FOIA). I contend that this decision was erroneous and failed to appropriately weigh the public interest in disclosure against the cited exemptions. The EI report addresses systemic misconduct at a publicly funded institution, including allegations of bullying, discrimination, and managerial failures. These failings have caused significant harm to staff well-being and morale and undermine UCL’s obligations as a public institution. Transparency is essential to ensure accountability and rebuild trust. Contrary to UCL’s claims, the public interest in exposing this systemic failure far outweighs speculative concerns about inhibiting future deliberations. Key Legal Arguments Public Interest in Addressing Wrongdoing: UCL admits (Skeleton Argument, §33) that there were significant problems with SSEES’s working culture, which necessitated the commissioning of the EI report. Allegations of systemic bullying and discrimination are of pressing public interest, particularly at a publicly funded university.UCL cites differences between this case and the Imperial College report institutional failure, and the public interest in understanding how UCL addressed such issues remains equally compelling. ICO’s Failure to Appropriately Exercise Discretion: The ICO accepted UCL’s speculative claim of a "chilling effect" without adequately considering whether such an effect is realistic or outweighed by the substantial public interest in disclosure. Department of Health v Information Commissioner (2017) and Davies v IC (2020) caution against over-reliance on "chilling effect" arguments, noting that public authorities are generally aware that sensitive information may be disclosed. UCL failed to provide evidence that disclosure would inhibit future investigations (Skeleton Argument, §62) Reasonableness of the Qualified Person’s (QP) Opinion:Section 36 requires the QP’s opinion to be substantively reasonable. While UCL argues that disclosure would undermine deliberative processes (§54-58),this reasoning assumes that public scrutiny inherently impedes effective management. The opposite is true—transparency fosters better practices by holding institutions accountable for addressing systemic issues. Weakness of Section 40 Arguments on Personal Data: UCL asserts that redactions would not sufficiently anonymize individuals. However, this argument overstates the risk of identification and underestimates the feasibility of effective redactions.The Upper Tribunal in NHS Business Services Authority v Spivack (2021) clarified that identifiability requires a "degree of certainty," notspeculative associations.”
“The FTT is not conducting an inquiry into the culture of UCL overall; it is determining whether the Commissioner erred in the DN and whether a specific report relating to SSEES should be disclosed. All the material necessary to determine the issues beforethe FTT is contained in the Open and Closed Bundles.” “First, that is the natural meaning of Part 1 of the Request as the Appellant phrased it: ‘the Environmental Investigation report’ most naturally means the 16-page report that was drafted by the investigator. That document is signed and dated by the investigator on its final page [CB/34], after which follow the words ‘the report should be submitted to the Commissioning Manager (cc’ HR support) for consideration’. In other words, it is the 16-page Report that comprises the outcome of the investigator’s work, and which the Commissioning Manager will review. This is consistent with the terms in which the Vice-Provost announced the investigation to staff, when he characterised=the ‘report for my review’ as one which ‘will summarise the investigation undertaken, the findings and themes identified, and recommendations and observations on what the department should consider moving forward’[OB/A224];” “Second, Part 2 of the Request is for the Interviews, which themselves comprise a significant part of the Report’s appendices. Although the Appellant may not have been aware of the structure of Report and its appendices, when construed objectively, Part 1 of the Request must be limited to the 16-page Report, since if it included the Report’s appendices, Part 2 would add nothingto it.” “As to which appendices are Interviews: Part 2 of the Request was for ‘Details of all other independent interviews UCL conducted based on the names I provided to UCL’ [OB/C473]. UCL adopts a broad approach both to what constitutes an ‘interview’ (so that it includes, for example, e-mail statements of witnesses, and follow up e-mails by interviewees) and to whether any interview was ‘based on’ names provided by the Appellant to UCL. Since the Appellant’s complaint triggered the environmental investigation as being ‘based on’ names he provided, and so being within the scope ofPart 2. On this basis, all of the documents within appendices A1 [CB/C35-129], A2 [CB/C130-139], B1-B3 [CB/C144-150] and J [CB/C484-495] are within the scope of Part UCL also considers appendix A3 [[CB/140-143]], which simply tabulates information gathered from the interviews, to fall within the scope of Part 2 of the Request. The other appendices which do not fall within Part 2 of the Request are therefore outside of the scope of the Request.”
“(Response para.43 [OB/A275]) that the relevant date at which the balance of the public interest falls to be judged is 2July 2022, applying the decision of the UT in Montague v Information Commissioner & DIT [2023] 1 W.L.R. 1565 at ¶86-87 [AB/15/516] (unaffected on this point by the decision of the Court of Appeal: [2024] 1 W.L.R. 2185). The Commissioner was correct to find that UCL was entitled to rely on s.40(2) FOIA in relation to the Interviews, and to the Report insofar as it reflects the content of the Interviews. However, in relation to one interview given by the Appellant himself, and in relation to short passages in a number of interviews by third parties which refer to the Appellant, UCL seeks the FTT’s permission to rely in addition on s.40(1) FOIA: this information is the Appellant’s own personal data, and as such is absolutely exempt from disclosure by s.2(3)(f) FOIA. Further or in the alternative, both the Interviews and the Report engage s.41 FOIA – an absolute exemption by s.2(3)(g) FOIA. The Interviews were conducted with express, repeated assurances of confidentiality tointerviewees, and the Report is derived from that confidential information and would reveal it if disclosed. There would be no valid public interest defence to an action for breach of confidence and accordingly the withheld information isabsolutely exempt from disclosure.”
“The QP reviewed the Report and concluded that disclosure would be likely to prejudice the free and frank exchange of views for the purposes of deliberation (s.36(2)(b)(ii) FOIA) and would otherwise prejudice the conduct of public affairs (s.36(2)(c) FOIA) [OB/E623-625]. This was on the basis that if it had been thought that the Report would be disclosed, the investigatory manager was likely to have been more circumspect, and to have failed to inform decision-makers about the full circumstances, to the detriment88637751.2 of their deliberations. It follows that disclosure of the Report under FOIA cold lead to similar inhibition in a comparable future case – the so-called ‘chilling effect’. The QP also considered that disclosure would impinge on UCL’s safe space ‘to properly engage on these sensitive issues’ and ‘to effectively mitigate and manage the process of eradicating inappropriate behaviour’ [OB/E624]. The Commissioner accepted that this was a reasonable opinion (DN ¶15-20, OB/A3-4). It is not clear whether the Appellant challenges this conclusion in relation to both limbs, or only limb (c) ‘otherwise prejudice’, or whether his challenge relates only to the balance of public interest. In any event, the FTT is respectfully invited to uphold the Commissioner’s finding that the exemption was engaged on both limbs. Applying the low threshold for a reasonable QP’s opinion: it was clearly not irrational or absurd to hold that there was a significant risk that this investigator (who was an employee of UCL) would have been inhibited in dealing with sensitive matters, had he thought the report might be put in the public domain – and by implication, that future investigators would also feel inhibited. That satisfied limb (b)(ii) – the risk was that investigators would be less free and frank in giving their views to commissioning managers for the purposes of management deliberation of sensitive issues. As to limb (c) – the QP plainly identified a distinct prejudice to the conduct of public affairs; namely, impingement on the safe space needed to take decisions arising from the Report, and thus an adverse effect on how managers implemented the Report’s recommendations. That is a completely different type of prejudice to that under limb (b)(ii), because it relates to implementation by managers, not the views of investigators. The QP’s view that this prejudice would be likely to arise can hardly be called irrational, even in July 2022, when the very fact of the Request, and especially the highly adversarial e-mail containing the Request, demonstrated that the issues raised in the Report were still controversial – certainly in the view of the Appellant. Weight of prejudice and public interest in maintaining the exemption. This is a case in which the FTT should give significant weight to the QP’s opinion about the likely prejudice when carrying out its own assessment of the public interest balance, since the Provost was a senior individual who was well placed to assess the likely effect of publication. In any case, the FTT can satisfy itself“The DN is in accordance with the law and the Commissioner correctly exercised any relevant discretion. As to the applicable exemptions: The Commissioner was correct to find that both s.36(2)(b)(ii) and s.36(2)(c) FOIA were engaged in relation to the Report, and that the balance of the public interest favoured maintaining these exemptions. UCL agrees with the Commissioner from perusing the Report that it contains sensitive material, of a kind that a future investigator might choose to omit from a similar report if they considered it might be published, resulting in a less effective report. Thus, there are numerous instances where the investigator expresses himself in vivid and direct language, for example at [CB/C19]. The use of blander language, with an eye to publication, would not convey the situation at SSEES so effectively to those reading such reports, and so would reduce the imperative to act to improve matters. Further, the Report is candid in reporting negative feedback about senior individuals: Section A(iv) [CB/C24] summarises what the investigator was told about CH and DK in a frank and unguarded way. These comments are critical in conveying to the reader an accurate picture of the perceptions of junior staff about senior management at SSEES – a central theme the investigator was tasked with exploring. Again, if this Report were disclosed, a future investigator would be wary about recording similar comments in a report that was not intended for publication, given the precedent set by such disclosure. The line of authority discussed by the UT in Davies is of limited application to the present facts, given the very different context. A civil servant carrying out their regular, constitutional role of advising a Minister on issues of public policy may well be expected to advise candidly, setting aside any concern about public pressure. However, that is a very different situation to that of an individual at an academic institution, tasked (outside of their ordinary role) with investigating the conduct of (potentially senior) colleagues. Such a person may understandably be rather more prone to be swayed by concerns about the effects of disclosure. A further distinct aspect of the prejudice is likely inhibition of future interviewees. All interviewees were given explicit assurances of confidentiality, and some only felt able88637751.2 to come forward on the basis of these assurances. The Report quotes or paraphrases extensively from these interviewees, and given the small size of SSEES, and the specific nature of some of the comments made, their identities would be apparent in many cases to those familiar with the workings of SSEES. If the interviewees felt that the assurances they were given turned out to be hollow, because the Report was later disclosed to the world at large, then interviewees in any future investigation would be much more circumspect when providing input on sensitive matters – or would not come forward at all. Accordingly, the Tribunal is invited to find that disclosure would give rise to a real chance of a substantial chilling effect on future environmental investigations that were not intended for publication: they would become blander in their language and safer in their exploration of sensitive areas, and would be likely to have a much reduced pool of information on which to draw, because interviewees would be reluctant to come forward. The public interest in avoiding such an outcome is clear: it would be harder for senior management to obtain a frank and detailed view of difficult workplace situations, and it would therefore be harder for management to address them. Ultimately, that would have a detrimental effect on the quality of research and teaching at SSEES. That would be strongly contrary to the public interest, for a publicly- funded institution with a reputation for excellence in its field that enhances the UK’s standing in the academic world.” “The Provost was also well-placed to assess UCL’s need for a safe space to implement the Report’s recommendations. The FTT should give significant weight to his view that disclosure would impede the process of improving working relationships within SSEES. It can in any case be seen from the documentary evidence that disclosure to the world on2 July 2022 would have had a detrimental effect on the ability of UCL and SSEES to improve the working culture within SSEES. This is, quite simply, because it would have led to the Appellant (whose intentions are clear from the wider e-mail containing the Request), and potentially others, raking over perceived historical wrongs, dating back to the period 2017-2020. That would have been overwhelmingly negative for relationships within SSEES, at a time when (i) SSEES had taken significant steps to address the Report’s recommendations by means of open discussion and staff training; (ii) CH (on whom the Appellant’s grievances focus) had left some time before; and (iii) SSEES had separately investigated and dealt with the Appellant’s complaints, as they related specifically to him, through appropriate HR procedures. There comes a time when any institution is entitled to draw a line under past controversies and focus on improving relationships and behaviours going forwards. For SSEES, that time had plainly come by2 July 2022 . In this sense, disclosure would have impinged on the ‘safe space’ required by SSEES to implement the recommendations and focus on improving the working culture. That would have been detrimental to the public interest, because a healthy working culture is strongly in the public interest.”
“UCL recognises that there is a public interest in transparency in relation to both the working culture at a publicly funded institution such as SSEES, and in how UCL and SSEES address concerns that are raised about that culture. However, the extent to which those public interests would be served by disclosure of the Report in July 2022 is overstated by the Appellant. The Appellant focusses on a comparison with (i) the Bartlett and Slade reports, which UCL voluntarily published; and (ii) a report into bullying at Imperial College which the Commissioner ordered to be disclosed in Decision Notice IC-96056-F5J7. The differences in circumstances from the Bartlett and Slade reports are addressed at 16 of UCL’s previous written submissions [OB/A255]. In summary, those reports concerned allegations by students of inappropriate behaviour, including discrimination or harassment on the basis of sex and race. There was therefore an especially strong public interest in their publication, both because of overt allegations of discrimination had been made, and because they concerned UCL’s public-facing role in teaching students. It was obvious that a public response was required to such allegations, and accordingly the relevant reports were prepared from the outset with the intention of publication. By contrast, the Report concerned internal working culture of a department, and while themes of race and sex discrimination arose in interviews, they were not its focus. There is a far lower public interest in scrutiny of internal working practices, even if they happen to arise at a public institution, than there is in addressing allegations of discrimination in how an institution delivers a public service. The significant differences in circumstances from the Imperial report are tabulated at para 17 of UCL’s previous written submissions [OB/A255-256]. In short, the Imperial report concerned allegations against staff who were extremely senior within the university overall (the President and CFO), generating such significant public interest that questions had been asked in Parliament [OB/A12 ¶5]. Crucially, the Imperial report had made findings of fact against these individuals, and the university had subsequently given them its strong backing, after publishing only parts of the investigation report. There was therefore an exceptionally strong public interest in publication of the full report, to understand the extent of the findings against these individuals. By contrast, the Report was not intended to, and does not, make findings of fact about individuals [CB/C21]. While it reports allegations against individuals, it states expressly that these allegations have not been tested [CB/C24]. A further important difference (albeit relevant to the public interest in maintaining the exemption), is that the identities of Imperial witnesses could effectively be protected, as they were drawn from a pool of 20,000 employees; whereas the much smaller size of SSEES meant that interviewees could still realistically be identified even if their names were redacted. The FTT, of course, must focus primarily on the inherent public interest in disclosing the information before it, rather than on comparisons with disclosure in other circumstances. When the question is properly framed in that way, it is submitted that the public interest in disclosure of the Report is relatively modest. It concerns the internal working culture of a small department of a university; it does not make findings of fact about individuals, and although it reports allegations against senior staff of SSEES, the primary focus of those allegations (CH) had left before the Report was even completed. There can be no credible allegation that the Report, or SSEES, ducked the question of how to address CH’s behaviour – it was simply that he left before appropriate action could be taken. Moreover, SSEES had addressed the broader themes of the report through open discussion and staff training, and in addition by sharing the full Athena Swann report – which touches on a number of the same themes – in advance of the same Town Hall meeting at which the recommendations of the Report were debated amongst staff members. The narrowness of the Appellant’s interest can be seen from his reply to the submissions of UCL and the Commissioner [OB/A283-302], with which he enclosed various documents dealing largely8 with his grievances about his own historical treatment [OB/A407-460]. The Appellant has sought to make much of the Director’s e-mail of15 May 2020 , in which she expressed support for CH (and other members of staff). Whatever the FTT’s view of the wisdom of the Director’s comments, it is unclear how this e-mail enhances the public interest in disclosure of the Report. The Appellant views it as an attempt to deter participants from speaking to the investigator. If that is correct (which is not accepted), then it would be further evidence of the need to respect confidentiality; in any case, many interviewees did come forward, and so the point is moot. Moreover, the e-mail of15 May 2020 was raised during the course of the investigation, and the FTT can satisfy itself that it was dealt with appropriately in the Report [CB/C27-28]. At the relevant date, therefore, the public interest in disclosure of the Report was bothrelatively narrow, and historical in nature.”
“a)The Interview material within Part 2 of the Request is obtained from another person for the purposes of s.41(1)(a) FOIA, because employees were stepping outside of their usual course of employment in order to give personal reflections on the behaviour of colleagues and the culture of SSEES. The context of the Interviews carried out for the purpose of an environmental investigation is similar to the example given in the Commissioner’s guidance, of an employee giving evidence to a disciplinary hearing. While the wider background in both cases is, of course, the employment setting, the employee is not imparting information that is germane to their ordinary employment; rather they are giving personal reflections about matters that have gone wrong and are therefore by definition outside the ordinary course of employment. Contrary to the Appellant’s submission, giving evidence to the Investigation was not “part of an employee’s professional responsibility”, as is clear from the fact that participation was entirely voluntary – had it been part of employees’ duties to participate, that would not have been the case; b) As for the Report within Part 1 of the Request – the investigator is not ‘another person’ for the purposes of s.41(1)(a) FOIA. But this has never been UCL’s case; rather, it relies on the extent to which the Report reflects the underlying confidential subject matter of the Interviews. Here, the Tribunal in Johnstonapplied too narrow an approach, seemingly restricting the application of s.41 FOIA only to passages in the report that were direct quotations from interviews. That UCL submit is wrong: the subsequent appellate authority of Evans, binding on this Tribunal, holds that s.41 can extend to “both the general subject-matter of a communication and the fact that the communication took place.”
‘academic setting’ is defined by NIHR to mean ‘faculty’ or ‘medical school’ [OB/335] – and so it was sufficient for applicant departments to hold accreditation. There is no suggestion that SMT was deliberately misled, and the result was an additional exercise in equality and diversity that might not have been agreed (due to its cost) had this mistake not occurred. Given the Appellant’s strong focus on promoting equality and diversity, it is hard to see why he complains about this mistake. b). The second and only other instance in which the COIR report refers to ‘misleading’ information concerns a somewhat arcane point about the scope of powers delegated to UCL’s Academic Committee (“AC”) by its Academic Board (“AB”). It is set out below so that the Tribunal can satisfy itself that (1) there is no suggestion of deliberate misleading and (2) the issue is one of no conceivable relevance to the present Appeal. The COIR report author records (at [OB/371] that he was told the following by a member of the Provost’s office: “The ToRs are misleading in one respect: by saying Council charges AC to advise using powers delegated from AB, it makes it seem as though itis Council’s decision that the delegation should be in place. This confuses two matters: i) what Council can charge a body (given the powers it already has delegated to it) and ii) who decides that those powers are delegated in the first place. The latter is purely in the discretion of the Academic Board – no Charter or Statute provision allows for the intervention in the powers/rights of AB by another body and indeed Charter Article 7 explicitly makes clear that the powers of Council are ‘subject to the powers of the Academic Board’