Documents Pertaining to a Protest within the University

Roedd y cais yn rhannol lwyddiannus.

Dear University of Cambridge,

On 04/04/2012 - in response to my previous request FOI-2012-64 ['22 November 2011: Willetts Protest] - the University supplied me with a list of items held by various University officers and offices. These items pertained to the protest against David Willetts on 22 November 2011 and/or issues arising from this protest.

Under the Freedom of Information Act 2000, I am requesting that you supply me with copies of the following items held by the University officers specified in that list (I have retained the University’s descriptions exactly, and therefore assume that the University will be able to identify the documents from those descriptions):

1) Senior Proctor

a) Handwritten notes from the day of the protest and subsequent days.
b) Emails to other Proctors informing them about the protest and the occupation of Lady Mitchell Hall.
c) Email correspondence with various individuals (not Officers of the University) about actions that the Proctors planned to take following the protest.
d) Letter to the Vice-Chancellor arising from the receipt of a copy of a letter dated 21 February 2012 from numerous signatories.
e) Email correspondence with the Assistant Clerk to the Court of Discipline about video evidence to be presented to the Court.

2) University Advocate

a) Witness statement from the Director of CRASSH concerning the protest.

3) Registrary

a) Email correspondence with the Vice-Chancellor’s Office and the Office of External Affairs and Communications about the timing of a call to issue an apology to Mr Willets from the Vice-Chancellor.
b) Email from the Office of External Affairs and Communications about a BBC news story about the protest.
c) Email correspondence with the Vice-Chancellor’s Office, the Office of External Affairs and Communications and members of the Council about the issue of a statement by the Council about freedom of speech (initially proposed by a member of the Council).
d) Email correspondence with the Office of External Affairs and Communications, the Registrary’s Office and CRASSH about an essay prize concerning the protest.
e) Email correspondence with the Administrative Secretary about a UCU motion concerning the protest.
f) Email correspondence with a member of the Council about Mr Willets and the THE Awards.

4) Director of CRASSH

a) Email correspondence with the University Advocate about the provision of a witness statement concerning the protest.
b) Witness statement concerning the protest.

Although (according to the University's own annotations) none of these items name individual protesters, I would like to make explicit that I am not seeking any personal data which the University would not be allowed to disclose under the Act. For example, in 1c, given that some of the correspondents are apparently not University officers, but the substance of the correspondence is relevant to the University, I would expect that even if the names of the correspondents could not be disclosed, the text of their correspondence would still be supplied.

I understand that under section 14 of the Freedom of Information Act 2000 the University is not obliged to comply with 'a subsequent identical or substantially similar request from [the same] person unless a reasonable interval has elapsed between compliance with the previous request and the making of the current request'. I make
this new request on the understanding that it differs substantially from the request I made in March, insofar as it requests information of an entirely different kind. That is, the two requests are arguably related, but not 'substantially similar'.

Please supply the copies of the requested documents as digital files. Please address all correspondence to this email address.

Yours faithfully,
Dr [Name Removed]

FOI, University of Cambridge

Dear Dr Oppitz-Trotman,

This is to acknowledge receipt of your request for information. Your reference number is FOI-2012-92. We will respond on or before 8 May 2012.

Regards,
FOI Team

Freedom of Information Office
University of Cambridge
Registrary's Office, The Old Schools
Trinity Lane, Cambridge, CB2 1TN
T: (01223 7)64142
F: (01223 3)32332
E: [University of Cambridge request email]

dangos adrannau a ddyfynnir

FOI, University of Cambridge

1 Atodiad

Dear Dr Oppitz-Trotman,

Further to your request for information, please find attached the University’s response.

Regards,
FOI Team

Freedom of Information Office
University of Cambridge
Registrary's Office, The Old Schools
Trinity Lane, Cambridge, CB2 1TN
T: (01223 7)64142
F: (01223 3)32332
E: [University of Cambridge request email]

dangos adrannau a ddyfynnir

Dear University of Cambridge,

RE: FOI-2012-92

I have read your reply in detail. Thank you for supplying 1a, 1b, 1c, 1d, 3a, 3b and 3d promptly and efficiently.

It is certainly not my intention to insist on internal reviews without reason. Indeed, I resisted applying for internal review in relation to some of my past requests, when on balance I felt that the potential value of requesting review was outweighed by the expense I knew would be incurred by it. However, in this instance I am requesting an internal review, on the basis that the University's arguments against disclosure of some of the documents I requested do not seem to me satisfactory, for the reasons I give below. I would ask that each of my arguments be evaluated on its own merits, and that they be applied separately to each separate item found subject to them, even though I have in the main followed the University's grouping of the items for your convenience.

---- 1e, 2a, 4a, 4b ----

I dispute both considerations that have been described as material to the Vice-Chancellor's decision, on several grounds; that is, I dispute that the decision by the 'qualified person' is sound.

The first of the Vice-Chancellor's considerations is invalid, because at the time 2a, 4a and 4b were created, and possibly when 1e was created, the individuals sending and receiving them can have had no reasonable expectation that their correspondence would not be disclosed (indeed, they actually had statutory grounds to suppose it would be, as I will suggest).

The preliminary hearing with the Chairman of the Court of Discipline, where it was decided that the court's proceedings were to be held /in camera/, had not yet taken place when these documents were created and distributed in the first instance. According to the University's own 'Statutes and Ordinances', the Court of Discipline does not /necessarily/ convene /in camera/. I refer you to Chapter II, section 20 of the Ordinances, where the rules of procedure for the Court of Discipline are described:

'The Court may sit either in public or /in camera/ at the discretion of the Chairman except that, when the defendant requests that it shall sit /in camera/, the Chairman shall normally so decide'

Assuming the integrity of the disciplinary process, the Chairman's decision on this issue cannot have been made by the time 2a, 4a and 4b, and possibly 1e, came into existence. Consequently it is unreasonable to oppose disclosure now on the grounds that the effective conduct of public affairs of the University would be harmed, because the generators of the documents will have produced them in the knowledge that legitimate public disclosure was foreseen by the University's 'Statutes and Ordinances' (i.e. the regulations governing the 'effective conduct of public affairs' in the University).

These documents must be seen within the context of the University's own disciplinary regulations, and the standards of integrity expected from them by the University's members. I hold therefore that the fact that the proceedings of the Court of Discipline were eventually held /in camera/ must be immaterial to the question of whether these documents -- 2a, 4a and 4b -- should now be disclosed, and ask also that the decision to withhold 1e be tested against the same objection.

In addition, the subsequent appeal hearing before the Septemviri was not held /in camera/ but instead was open to the public. Consequently, if 1e, 2a, 4a or 4b (or also 3c, 3e or 3f), or any of the information contained in any of these documents, was presented in the course of that hearing, any objection that earlier proceedings were held /in camera/ must necessarily be immaterial. I was not present at the appeal hearing; consequently, I do not already have in my possession the information presented there, but hold that if 1e, 2a, 3c, 3e, 3f, 4a or 4b, or any of the information contained therein, was presented at the appeal hearing, you should now disclose to me the appropriate documents or information under the terms of the Freedom of Information Act 2000.

The second of the material considerations used in the Vice-Chancellor's decision (that disclosure of the documents may prejudice a pending appeal) has expired: the relevant hearing before the Septemviri was held on 22 June 2012. That is, this consideration is now immaterial, as that appeal hearing has concluded, and the relevant documents are not subject to any further quasi-judicial process within the University.

Therefore, neither of the 'material' reasons that have been used by the Vice-Chancellor to engage section 36 in relation to these documents can continue to be regarded as such. The exemptions are consequently invalid.

This leaves the public interest test made in respect to this set of documents. It is my further contention that the public interest served by disclosure of the said documents far outweighs any possible damage to the conduct of public affairs which might reasonably be expected to result from such disclosure.

This protest -- and the punishment of one protester resulting from disciplinary proceedings following the protest -- made national headlines; significant numbers of students and academics have protested the University's handling of this case; several joint letters were submitted to the Vice-Chancellor in relation to it; it is subject to active and ongoing campaigns by the University and College Union and the University Student Union; and in general there is a very significant interest within the University and beyond to understand how the original trial was conducted, why it was conducted in the way it was, and how such a severe sentence could have resulted from it. Over 3000 members of the University have signed a petition condemning the severity of the original sentence and expressing deep concern at the disciplinary processes used in the case (http://www.cusu.cam.ac.uk/campaigns/this...), and more than 5500 members of the public have signed a similar document (http://www.ipetitions.com/petition/suppo...).

It is also perhaps important to remember that the original protest was a political protest: it was designed to draw attention to the Government's higher education policy as it was being pursued in November 2011. Although the University regarded its proceedings against one protester as non-political, the extreme sentence that was handed down to the said protester has been widely connected to ongoing political contexts by many observers in local and national media. It might be necessary to account for these political dimensions as part of any public interest test in this case (even if such dimensions were ultimately found to be less relevant than more specific legal considerations), but there is no sign that the University has made such an evaluation.

Concern that the University's disciplinary procedures lack transparency has been a key component of the public interest in this case, and must be an important consideration in judging whether disclosure of these documents is now appropriate. On 28 March this year, almost one hundred senior members of the University wrote to the Vice-Chancellor calling for 'a review of the processes used by the Court of Discipline, in order to guarantee that they are as transparent and as fair as the University's members require', insisting that the punishment of this student would cause 'untold damage to the long-term vitality and independence of the University community, particularly the student body'. A similar level of interest was shown on 24 April, when a Discussion was called by members of the University Regent House on the subject of the disciplinary proceedings that followed the protest in November 2011. Several senior members of the University used the occasion of this Discussion to criticize a lack of transparency in the University's procedures (see http://www.admin.cam.ac.uk/reporter/2011...).

Indeed, the Septemviri, having heard arguments as to whether or not the appeal hearing should be held /in camera/, decided that the appeal hearing should be open to the public. That is, the Septemviri, a higher court than the Court of Discipline, came to the conclusion that it was in the public interest that the proceedings in this case were open to public scrutiny. I would respectfully suggest that this fact is decisively important in the context: when considered in conjunction with the other factors I have mentioned, the Septemviri's decision renders all counter-arguments extraneous.

---- 2a, 4b ----

I also dispute the validity of the University's argument that disclosure of 2a and 4b is prohibited by the University's duties under the Data Protection Act 1998.

In my earlier request FOI-2012-64, the University stated (by not annotating the relevant items to any other effect) that the items corresponding to 2a and 4b in the current request did not identify individual protesters ('All items naming or otherwise identifying individual protesters [were] marked with an asterisk'). In subsequent correspondence the University confirmed the accuracy of its response to FOI-2012-64. (You can find a record of FOI-2012-64 here: http://www.whatdotheyknow.com/request/22...)

The author of 2a and 4b was acting in an official capacity when he/she produced them, and is thus not protected by the DPA 1998. Moreover, as I have pointed out above, neither the University -- as the 'data controller' -- nor the creator of documents 2a and 4b can have had any expectation that they would remain confidential, because the University 'Ordinances' make provision for their being read in open court. In particular, if these documents, or parts of them, were used in the open appeal hearing on 22 June 2012 then clearly there can now be no expectation of confidentiality.

If there is indeed third-party personal data contained in this document that relates neither to protesters nor to University officers -- for example, if it mentions the actions of the speaker at the disrupted public event in question -- I ask that the University merely make the appropriate redactions (which surely cannot be substantial) and disclose the document.

However, I cannot see how such redactions would be necessary given that the document was not written in any expectation of confidentiality, might in other circumstances have been made public during the proceedings of the Court of Discipline, and may well have been made public at the appeal hearing before the Septemviri.

---- 3c, 3e, 3f ----

I object to the exemption of 3c, 3e, and 3f on the grounds that section 36 has not been reasonably engaged in respect of these documents.

Firstly, I do not think that the University has presented the Vice-Chancellor's decision in the detail required for it to be judged reasonable or unreasonable. In 'University of Central Lancashire v Information Commissioner and David Colquhoun EA/2009/0034 8 December 2009', the Information Tribunal noted the following in paragraph 58:

'Section 36 provides for an exceptional exemption which the public authority creates by its own action, albeit subject to scrutiny of its reasonableness, the likelihood of prejudice and the question of the public interest. That factor of itself justifies a requirement that the authority provide substantial evidence as to the advice (other than legal advice) and the arguments presented to the qualified person upon which his opinion was founded. We emphasise that no set formula is required, just a simple clear record of the process'.

This case was cited in guidance issued by the Information Commissioner's Office (ICO) in November 2011. I do not believe that the University has fully recorded the reasoned opinion of the Vice-Chancellor for its engagement of section 36 in this instance; or at least, in its response to my request the University has not provided enough information about the process by which this decision was reached for me to judge whether it was reasonable or not. As part of the internal review, I would expect the University to provide a fuller description of how the decision was
reached. This also applies, although to a lesser extent, to 2a, 4b, and 4c (see above).

In addition, please provide a fuller description of how the public interest test was undertaken, and what factors were considered as part of that test (which should have been a separate process from that through which the section 36 exemptions were engaged).

As you will be aware, exemptions under section 36(2)(b)(ii) of the Act are 'qualified' exemptions, because documents which disclose 'free and frank exchange of views' should still be disclosed unless the public authority can make a reasonable case that the public interest in restricting the documents outweighs the public interest in disclosing them. In the ICO's guidance document for section 36 from November 2011, to which I have already referred, the following advice has been given:

'Under section 17(3) public authorities must explain to the requester why the balance of the public interest test favours withholding the information. In addition to the record of the qualified person's opinion, they should therefore also have a record of the factors taken into account in the public interest test and the weight given to them. They can then refer to these in any internal review and provide them to the ICO if there is a complaint'.

The guidance goes on to specify that public authorities should provide requesters with details of the public interest factors in favour of maintaining the exemption and those in favour of disclosure, with explanations of the weight attached to each factor. I received no such explanations on this occasion.

I believe that there are several factors which would need to be taken into account as part of the public interest test.

Firstly, I would ask that the University take into consideration the large scale of interest aroused by this case within the University (see above for a brief summary of just some of the ways this interest has manifested itself).

Also relevant to the public interest test here is the fact that item 3c is likely to include material relating to the University Council's application of the concept 'freedom of speech' to the events of 22 November 2011 when the protest occurred. In the Discussion held in the University on 24 April (http://www.admin.cam.ac.uk/reporter/2011...), several senior members expressed confusion as to the Council's use of the term 'freedom of speech' as it was employed in the statement that was issued following the discussions contained in 3c (the final statement can be found here: http://www.cam.ac.uk/univ/notices/counci...). Indeed, several contributors to the Discussion asked the Council direct questions about the term 'freedom of speech' and the meaning the Council assigned to it. The Council is obliged by the University 'Statues and Ordinances' to answer direct questions issued during official Discussions, but these answers are still pending.

Moreover, in the immediate aftermath of the protest concerned, there were widespread debates within the university community about the relevance or otherwise of the notion of 'freedom of speech' to these events. Indeed, that this was the case is suggested by the University response to my request FOI-2012-64, which states that the organizer of the disrupted event subsequently received 'emails from various individuals expressing support for, or opposition to, the protest with sundry opinions about free speech and government policies'.

Consequently, I think there are very strong arguments that disclosure of 3c is warranted on public interest grounds (particularly as this public interest is congruent with the interests of University of Cambridge's democratic, self-governing community), and I ask that the internal review consider in earnest whether this interest can really be outweighed by arguments on the other side.

(Please note, in respect of these items, that I would otherwise have been reluctant to ask the University to undertake a potentially costly internal review had I been able to judge whether the Vice-Chancellor's decision was reasonable; sadly, I feel that the University's description of the decision and the thinking behind it is not adequate for me to have made this judgment.)

I would also ask you to reconsider the decision to refuse disclosure of 3e on the grounds that to do so would contravene the obligations imposed by the DPA 1998, under section 40(3)(a) of the Act.

A record of signatories to motions passed or asked to be passed within the University and College Union (UCU) is made fully public online, so that there can be no question that the relevant UCU members will have their DPA rights breached through disclosure of 3e, since they can have had no expectation that this information would remain confidential. Both the Registrary and the Administrative Secretary are University Officers, writing presumably in their official capacities. Consequently, I can only assume that the third-party personal data to which the University alludes forms only a part of the 'content' of 3e. I ask therefore that the University provide this document to me, redacting relevant third-party personal information where absolutely necessary.

Similarly, please review your engagement of section 40 in respect of 3c and 3f. All parties named in relation to these items were University Officers or members of the Council acting in their official capacities. Any third party personal data must be 'contained' within this email exchange, and not manifested by it: therefore, please supply the relevant emails with third party data redacted where appropriate.

I hereby request that the University undertake an internal review of its handling of this request, taking into account the arguments in favour of disclosure which I have presented above. Please send all responses to this email address. The original request together with all pertinent correspondence can be found online at this address:

http://www.whatdotheyknow.com/request/do...

Yours sincerely,

Dr [Name Removed]

FOI, University of Cambridge

Dear Dr Oppitz-Trotman

This is to acknowledge receipt of your request for a review of our handling of request number FOI-2012-92. We will respond on or before 26 July 2012.

Regards,
FOI Team

Freedom of Information Office
University of Cambridge
Registrary's Office, The Old Schools
Trinity Lane, Cambridge, CB2 1TN
T: (01223 7)64142
F: (01223 3)32332
E: [University of Cambridge request email]

dangos adrannau a ddyfynnir

FOI, University of Cambridge

2 Atodiad

Dear Dr Oppitz-Trotman,

Further to your request for a review, please find attached two letters which together constitute the University’s response.

Regards,
FOI Team

Freedom of Information Office
University of Cambridge
Registrary's Office, The Old Schools
Trinity Lane, Cambridge, CB2 1TN
T: (01223 7)64142
F: (01223 3)32332
E: [University of Cambridge request email]

dangos adrannau a ddyfynnir