No deal Brexit planning

The request was partially successful.

Dear Royal Holloway, University of London,

Can you tell me what no deal planning has been done by the college and provide me the documents in regards to Brexit?

Can you tell me have there been any changes with the election of Boris Johnson?

Yours faithfully,

Abdul Hai

FOI, Royal Holloway, University of London

Dear Abdul,

I confirm receipt of your Freedom of Information request below.

We will provide you with the College's response to your request by 11 October.

Kind regards,

Rachael

Rachael Pymm
Governance & Information Officer

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FOI, Royal Holloway, University of London

Dear Abdul,

Further to your Freedom of Information request below, the College's response is as follows:

Can you tell me what no deal planning has been done by the college and provide me the documents in regards to Brexit?

Can you tell me have there been any changes with the election of Boris Johnson?

The College declines to confirm or deny whether it holds any information within the remit of your request. The College considers that to confirm or deny whether it holds any such information has the potential to prejudice its commercial interests. The College has undertaken a public interest test and determined that the public interest favours this response. Therefore the College declines to confirm or deny whether it holds this information under section 43(3) of the Freedom of Information Act.

If you are dissatisfied with the outcome of this request or the way it has been handled you can request an internal review by writing to:

Directorate of Governance & Legal Services
Royal Holloway, University of London
Egham
Surrey
TW20 0EX
E: [email address]

In line with the Section 45 Code of Practice, a request for an internal review must be received within 40 working days of the date of this email.

If following the internal review you remain dissatisfied with the service provided you have the right to appeal directly to the Information Commissioners Office for a decision. For details visit www.ICO.gov.uk

Kind regards,

Rachael

Rachael Pymm
Governance & Information Officer

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Dear Royal Holloway, University of London,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Royal Holloway, University of London's handling of my FOI request 'No deal Brexit planning'.

I have got some information from Kings College London and Imperial College London about their no deal planning.

The college simply can't refuse to comment when it should be making plans.

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/n...

Yours faithfully,

Abdul Hai

FOI, Royal Holloway, University of London

Dear Abdul,

I confirm receipt of your email below, and that the College will carry out an Internal review as requested.

We aim to complete the Internal Review by 8 November.

Kind regards,

Rachael

Rachael Pymm
Governance & Information Officer

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FOI, Royal Holloway, University of London

1 Attachment

Dear Abdul,

Further to the correspondence below, please find attached a letter confirming the outcome of the College's Internal Review of its response to your Freedom of Information request.

Kind regards,

Rachael

Rachael Pymm
Governance & Information Officer

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Abdul Hai left an annotation ()

Reference: FS50891017

1
Freedom of Information Act 2000 (FOIA)

Decision notice

Date: 1 July 2020

Public Authority: College Council
Address: Royal Holloway, University of London
Egham Hill
Egham
Surrey
TW20 OEX

Complainant: Abdul Hai
Address:
ahai11london@yahoo.co.uk

Decision (including any steps ordered)
1. The complainant has requested information from Royal Holloway,
University of London (the “university”) about its planning for a “no-deal”
Brexit. The university refused to confirm or deny (“NCND”) whether it
held the requested information under section 43(3) by virtue of section
43(2) - the exemption for commercial interests.
2. The Commissioner’s decision is that the university was not entitled to
issue a neither confirm nor deny response to the request.
3. The Commissioner requires the public authority to take the following
steps to ensure compliance with the legislation.
 The university is required to confirm or deny whether information
falling within the scope of the request is held and either disclose
that information or issue a valid refusal notice in respect of that
information.
4. The public authority must take these steps within 35 calendar days of
the date of this decision notice. Failure to comply may result in the
Commissioner making written certification of this fact to the High Court
pursuant to section 54 of the Act and may be dealt with as a contempt
of court.
Reference: FS50891017

2
Request and response
5. On 13 September 2019 the complainant made the following request for
information under the FOIA:

“Can you tell me what no deal planning has been done by the college
and provide me the documents in regards to Brexit?

Can you tell me have there been any changes with the election of
Boris Johnson?”
6. The university responded on 11 October 2019 and refused to confirm or
deny that the requested information was held citing section 43(3) by
virtue of section 43(2) of the FOIA.
7. The complainant requested an internal review on the same date.
8. The university provided an internal review on 15 November 2019 in
which it maintained its original position.
Scope of the case
9. The complainant contacted the Commissioner on 15 November 2019 to
complain about the way his request for information had been handled.
He did not provide any reason for his complaint but the internal review
made it clear that he was not content with a NCND response.
10. Therefore the Commissioner considers the scope of this case to be
whether the university was correct in neither confirming or denying that
the requested information was held.
Reasons for decision
Section 43(3) – Would confirmation or denial result in prejudice to
commercial interests?

11. Section 1(1)(a) of the FOIA requires a public authority to inform a
requester whether it holds the information specified in the request.
However, there may be occasions when complying with the duty to
confirm or deny under section 1(1)(a) would in itself disclose sensitive
or potentially exempt information. In these circumstances, section 2(1)
of the FOIA allows a public authority to respond by refusing to confirm
or deny whether it holds the requested information.
Reference: FS50891017

3
12. The NCND response is not affected by whether a public authority does or
does not in fact hold the requested information. The focus for NCND in
most cases, will be theoretical considerations about the consequences of
confirming or denying whether or not a particular type of information is
held.

13. Section 43(2) of the FOIA states that -
(2)Information is exempt information if its disclosure under this Act
would, or would be likely to, prejudice the commercial interests of any
person (including the public authority holding it).
(3)The duty to confirm or deny does not arise if, or to the extent that,
compliance with section 1(1)(a) would, or would be likely to, prejudice
the interests mentioned in subsection (2).
14. A public authority’s duty to confirm or deny whether it holds information
requested by an applicant is imposed by section 1(1)(a) of the FOIA. A
public authority may however exclude itself from complying with section
1(1)(a) on the basis of section 43(3).
15. In order for section 43(2) to be engaged the Commissioner considers
that three criteria must be met –
 Firstly, the actual harm that the public authority alleges would
or would be likely to occur if the withheld information was
disclosed has to relate to commercial interests.
 Secondly, the public authority must be able to demonstrate that
some causal relationship exists between the potential disclosure of
the information being withheld and the prejudice which the
exemption is designed to protect. Any prejudice that results must
also be real, actual or of substance.

 Thirdly, there is a need to establish whether the level of likelihood
of prejudice being relied upon by the public authority is met,
whether disclosure would or would be likely to result in prejudice
or there is a real and significant risk of the prejudice.

16. The university neither confirmed nor denied whether it held information
concerning no-deal planning relating to Brexit or whether there had
been any changes following the election of Boris Johnson. The
Commissioner needs to consider a scenario where, if the information
was held, it would meet these three criteria.
Reference: FS50891017

4
17. The university explained that it believed it to be germane that the
request was received on 13 September 2019. It describes the national
situation at that time –
“…the UK Brexit date stood at 31 October 2019 and a ‘Brexit deal’ had
not been finalised despite a series of votes by the government. During
this time, Boris Johnson won the Conservative Party leadership race
and formally took over as Prime Minister from T[h]eresa May on 24
July 2019. It is noteworthy that, on 25 July 2019, the Prime Minister
refused to rule out the possibility of a ‘no-deal’ Brexit. The Benn bill
became law on 9 September 2019 and parliament was prorogued (a
state which continued to 25 September 2019).”

The university goes on to say that the request was received at a time of
significant political tension and uncertainty which had an effect on a
wide range of sectors, including the higher education sector.
18. In its response to the Commissioner, the university pointed to the
Commissioner’s decision in
FS50739085. Whilst not making a direct
comparison, the university suggested that information pertaining to
Brexit had the potential to affect a public authority’s commercial
interests. The Commissioner notes that this decision did not relate to a
NCND response from the public authority, though it does state that
information relating to a no-deal Brexit can be commercially prejudicial.
19. The university further explained that it is a higher education provider
which relies upon income through student fees. The recruitment of
students is highly competitive, and it pointed to another of the
Commissioner’s decision notices
1
where it had previously been accepted
that this activity is commercial in nature. The Commissioner notes that
this decision was in relation to marketing. The university suggests that
details of tactical marketing activities are not shared between
institutions nor are they publicised or made public in any way. It also
says that to be singled out in this way puts them at a disadvantage to
other universities.
The university argues that confirming or denying
whether the requested information is held has the potential to affect the
university’s marketing activity – particularly that which pertains to the
recruitment of overseas students. Its view is that the study options and
student appetite for study in the UK may be affected by whether there is
a ‘deal’ or ‘no-deal’ Brexit.

1

FS50668371
Reference: FS50891017

5
20. The Commissioner agrees that requesting information about ‘no-deal’
Brexit plans could affect the university’s marketing activity and the
recruitment of foreign students which clearly relates to its commercial
interests. She questions though whether planning information for a ‘no-
deal’ Brexit can be said to be entirely related to commercial interests,
were it to be held.
21. The university believes that to confirm or deny planning for a ‘no-deal’
Brexit would inform competitors, and allow them to adopt marketing
approaches and undermine recruitment strategy which could reduce its
competitiveness. However, the Commissioner does not accept that the
university has established a causal link that is real, actual or of
substance by confirming or denying that it holds this information, even
at the lower level of prejudice.
22. The Commissioner is not aware if the university does or does not hold
the information, her view is therefore theoretical. She is not persuaded
that confirmation or denial in this context would cause commercial
prejudice. Her view is that it would not be unexpected for any public
authority to have made plans in the event of a ‘no-deal’ Brexit. The
Commissioner does not accept that confirming or denying whether it
holds the requested information is commercially prejudicial.
23. The university must now take the action set out in paragraph 3 of this
decision notice.

Reference: FS50891017

6

Right of appeal
24. Either party has the right to appeal against this decision notice to the
First-tier Tribunal (Information Rights). Information about the appeals
process may be obtained from:
First-tier Tribunal (Information Rights)
GRC & GRP Tribunals,
PO Box 9300,
LEICESTER,
LE1 8DJ

Tel: 0300 1234504
Fax: 0870 739 5836
Email:
grc@justice.gov.uk
Website: www.justice.gov.uk/tribunals/general-reg...
chamber

25. If you wish to appeal against a decision notice, you can obtain
information on how to appeal along with the relevant forms from the
Information Tribunal website.
26. Any Notice of Appeal should be served on the Tribunal within 28
(calendar) days of the date on which this decision notice is sent.

Signed

Pamela Clements
Group Manager
Information Commissioner’s Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF

Dear FOI,

In light of the ICO ruling can you please send the information to this request email via whatdotheyknow.

Yours sincerely,

Abdul Hai

FOI, Royal Holloway, University of London

Dear Abdul,

Following the ICO's Decision Notice of 1 July 2020, please find to follow the university's revised response to your request:

Can you tell me what no deal planning has been done by the college and provide me the documents in regards to Brexit?

I confirm that the university holds information within the remit of this part of your request. The university has published information pertaining to the UK's withdrawal from the European Union ("Brexit") on its EU Hub webpages: for staff: https://intranet.royalholloway.ac.uk/sta... and for students: https://intranet.royalholloway.ac.uk/stu....

The university has established a Brexit Working Group to consider the potential impact of Brexit on a wide range of areas of university operations, including impact which may result from a possible 'no deal Brexit'. Under section 43(2) of the Freedom of Information Act, the university withholds the Brexit Working Group papers and minutes, as it considers that release of these documents would prejudice the commercial interests of the university. As section 43 is a qualified exemption, the university has undertaken a public interest test to determine where the public interest lies. The university acknowledges the general public interest in transparency, and more specifically the public interest in ensuring that the university is undertaking robust planning with respect of Brexit - the university has sought to meet this interest through the publication of information on its EU Hub (above). However, in this instance, the university considers that the factors in favour of release are outweighed by the prejudice which would occur to its commercial interests if this information were disclosed. Specifically, disclosure of this information would prejudice the commercial interests of the university by revealing its strategies and planning; this information could be used by the university's competitors to our disadvantage, weakening our marketplace position, which is not in the public interest. Disclosure would also prejudice the university's commercial interests in the spheres of student recruitment and procurement, which would also undermine the competitiveness of the university, which is not in the public interest. The university has therefore determined that the public interest is best served by withholding this information under section 43(2) of the Freedom of Information Act.

Can you tell me have there been any changes with the election of Boris Johnson?

In accordance with section 1(1)(a) of the Freedom of Information Act, I confirm that the university holds no information that indicates a change of approach relating to the election of Boris Johnson as Prime Minister.

If you are dissatisfied with the outcome of this request or the way it has been handled you can request an internal review by writing to: [email address]

In line with the Section 45 Code of Practice, a request for an internal review must be received within 40 working days of the date of this email.

If following the internal review you remain dissatisfied with the service provided you have the right to appeal directly to the Information Commissioners Office for a decision. For details visit www.ICO.gov.uk

Kind regards,

Rachael

Rachael Pymm
Legal, Compliance & Information Officer

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