The events on campus of December 3rd 2014

Waiting for an internal review by University of Warwick of their handling of this request.

Dear University of Warwick,

I would like to respectfully request the following information under the Freedom of Information Act 2000:
- The full costs to the University of the injunction and possession orders taken out on Dec. 9, 2014. This includes the costs of legal advice, court fees and others.
- Footage of all CCTV cameras in Senate House foyer area, and immediately outside Senate House main entrance (looking at the road and lawn outside Senate House and the Kone area) for the period 3:00PM until 5:30 PM on Dec. 3, 2014. In particular, the footage of camera #43, ‘Senate Main Ent Doors’, and those looking at and around the Postgraduate Hub area and the foyer area nearby.
- Communications (emails, memos, letters) between any and all of the following members of the University and SU staff which includes the words or phrases “December 3”, “Dec. 3”, “3 December”, “3rd December”, “3rd Dec.” etc. and “Warwick for free education”, “WFFE”, “occupation”, “injunction”, “police”, “court”, “assault”, “Paul Wyld”, “Lloyd”, “IPCC”, and “Independent Police Complaints Commission”: Nigel Thrift, Ken Sloan, Mark Kennell, Mike Glover, Jo Horsburgh, Peter Dunn, Richard Lambert, Stuart Croft, Roberta Wooldridge Smith, Lucy Taylor, Ian Rowley, Paul Wyld, James Brecken, Cat Turhan, Rob Ankcorn, and Kelly Parkes-Harrison, from Dec. 2, 2014 – the present day. Any communication between any of these people and West Midlands Police including these words during the same period.
- The result of any internal inquiries into the events of December 3, 2014 carried out by the University. In his statement on Dec. 8, Nigel Thrift claimed that the “Registrar has also asked an independent member of our University Council to review the outcomes of any specific complaints that are raised by students or staff regarding the actions of members of the University in these events.” I request the outcome of any such review.
- The full costs to replace the damage to the rear Senate House door done on Dec. 4, 2014.

I would appreciate any information on these matters you are able to provide. I understand that this information does not have to be in document form unless specifically requested, and that it is the department’s responsibility to provide me with the information I require.

If you need any clarification, please don’t hesitate to contact me by responding to this email.

I would like to receive the information electronically where possible. I will be able to pick up any hard documents from the Legal Team’s office on campus.

If my request is denied in whole or in part, I request that you justify all deletions and rejections by reference to specific exemptions under the Act. I also expect you to release all non-exempt material. I reserve the right to appeal any decision you make.

Please confirm in writing that you have received this request at the earliest opportunity. You are required under statute to respond within 20 calendar days. As such, I look forward to your response by Oct. 7, 2015.

Yours faithfully,

Clare Hymer

infocompliance, Resource, University of Warwick



Thank you for your email which has been received by the University Legal
Compliance Officer. 

The University undertakes to respond to Freedom of Information requests
within 20 working days and to Data Protection requests within 40 calendar
days. 

Thank you

Legal Compliance Team

Dear University of Warwick,

I have not yet received any of the information regarding the events of December 3rd requested under the Freedom of Information Act 2000 on September 17th. By law, this was required by October 15th 2015. Do you have any update on this?

Yours faithfully,

Clare Hymer

infocompliance, Resource, University of Warwick

Dear Ms Hymer,

Thank you for your email. The University is currently working on your request and apologises for the delay in responding. We hope to provide a response soon.

Kind Regards

The Legal Compliance Team

________________________________________
From: Clare Hymer <[FOI #292917 email]>
Sent: 16 October 2015 19:58
To: infocompliance, Resource
Subject: Re: Freedom of Information request - The events on campus of December 3rd 2014

Dear University of Warwick,

I have not yet received any of the information regarding the events of December 3rd requested under the Freedom of Information Act 2000 on September 17th. By law, this was required by October 15th 2015. Do you have any update on this?

Yours faithfully,

Clare Hymer

show quoted sections

infocompliance, Resource, University of Warwick

Dear Ms Hymer,

Thank you for your email dated 17^th September 2015 requesting information
about the University of Warwick. Your request is being considered under
the Freedom of Information Act 2000. Please find below your original
request and our response.

I would like to respectfully request the following information under the
Freedom of Information Act 2000:

-       The full costs to the University of the injunction and possession
orders taken out on Dec. 9, 2014. This includes the costs of legal advice,
court fees and others.

The University does not hold information concerning the total legal costs
incurred by the University as a result of the injunction and possession
order taken out on December 9th 2014. The University has an arrangement
with its solicitors, Shakespeare Martineau LLP whereby it pays an annual
retainer for legal services, running from 1 June to 31 May each year. That
annual retainer is a specific sum agreed in advance, based on anticipated
work flow and is paid at monthly intervals. Costs therefore are not paid
by reference to individual matters or to time incurred in respect of
specific work. The retainer is subject to an annual review. In the
circumstances, it is not possible to provide you with a figure for the
actual costs payable by the University in respect of the legal
advice received in relation to the injunction and possession orders taken
out on December 9th 2014.

However, the costs for counsel, the writ, court and
Sheriffs fees generally fall outside of the retainer and are identifiable.
These total costs, for the matter in question, are £12,558 including VAT. 

-       Footage of all CCTV cameras in Senate House foyer area, and
immediately outside Senate House main entrance (looking at the road and
lawn outside Senate House and the Kone area) for the period 3:00PM until
5:30 PM on Dec. 3, 2014. In particular, the footage of camera #43, ‘Senate
Main Ent Doors’, and those looking at and around the Postgraduate Hub area
and the foyer area nearby.

The University acknowledges that it undertook to consider releasing this
material. On further analysis we now recognise that we are precluded from
providing the requested information by reason of continuing (external)
processes and additionally, the University considers that the requested
data is it is exempt by virtue of section 40(2) of Freedom of Information
Act (FOIA) 2000 on the basis that the CCTV footage contains substantial
third party data. Section 40(2) of FOIA provides that third party personal
data is exempt if its disclosure would contravene any of the Data
Protection Principles set out in Schedule 1 of the Data Protection Act
(DPA) 1998. Personal data is defined by the DPA as any information
relating to a living and identifiable individual. The footage contains
images of clearly identifiable people, including protesters, staff and
police and therefore contain personal data relating to those clearly
identifiable individuals, the disclosure of which would be likely to
breach the DPA.

The Data Protection Principles are set out in Schedule 1 of the DPA. The
first principle, and the most relevant in this case, states that personal
data should only be disclosed in fair and lawful circumstances. In
considering fairness, it is useful to balance the reasonable expectations
of the individuals and the potential consequences of the disclosure
against the legitimate public interest in disclosing the information. It
is important to note that disclosure under the FOIA is effectively
disclosure to the general public, not solely to the person who has made
the request and therefore substantial consideration has been given to the
potential effect of disclosing the footage to the public at large. The
individuals concerned would have no reasonable expectation that their
personal data contained in the footage would be put into the public domain
in permanent form under the FOIA.

Therefore, despite the University’s earlier comments the University
considers that disclosure would only be justifiable if there was an
overriding public interest in revealing the footage to the public at
large. The University is not aware of any such circumstances in the
context of the protest that would outweigh the individuals’ data
protection rights, warranting disclosure of the CCTV footage to the
public.

-       Communications (emails, memos, letters) between any and all of the
following members of the University and SU staff which includes the words
or phrases “December 3”, “Dec. 3”, “3 December”, “3rd December”, “3rd
Dec.” etc. and “Warwick for free education”, “WFFE”, “occupation”,
“injunction”, “police”, “court”, “assault”, “Paul Wyld”, “Lloyd”, “IPCC”,
and “Independent Police Complaints Commission”: Nigel Thrift, Ken Sloan,
Mark Kennell, Mike Glover, Jo Horsburgh, Peter Dunn, Richard Lambert,
Stuart Croft, Roberta Wooldridge Smith, Lucy Taylor, Ian Rowley, Paul
Wyld, James Brecken, Cat Turhan, Rob Ankcorn, and Kelly Parkes-Harrison,
from Dec. 2, 2014 – the present day. Any communication between any of
these people and West Midlands Police including these words during the
same period.

The opinion of the qualified person for the University, in consultation
with senior members of Council has been sought in this regard. Their
reasonable opinion, considers that release of the requested information
would be likely to “inhibit— the free and frank provision of advice, or
the free and frank exchange of views for the purposes of deliberation, or
would otherwise prejudice, or would be likely otherwise to prejudice, the
effective conduct of public affairs” as per section 36 (2)(b) and 36
(2)(c) of the Freedom of Information Act 2000.

Disclosure of such information would inhibit the free and frank provision
of advice and the free and frank exchange of views for the purposes of
deliberation. University staff members were under significant pressure
prior to and during the protest to deploy strategies to minimise
disruption and prevent disorder. In the aftermath, further deliberation
was needed to prepare for more protests which were likely to occur.

The disclosure of internal thinking processes and deliberations would, in
the opinion of the qualified person, be damaging to the ultimate quality
of decision-making within the University. Such disclosure may lead to less
candid and robust discussions in the future and difficult choices being
avoided.

The University believes that staff who contribute to such exercises should
feel free to engage in difficult discussions without fear that their
advice and deliberations will be published and therefore need an
environment in which they feel able to express themselves candidly.  The
prospect of disclosure to the public at large would have an inhibiting
effect on any future exercise, to the detriment of the future success and
security of the University. 

The University has considered whether, in all the circumstances of the
case, the public interest in maintaining the exemption outweighs the
public interest in disclosing the information and has concluded that it
does, having regard in particular to the need to maintain a space away
from the public domain for discussions and exchanges leading to the
formulation of policies and pronouncements, especially during a time of
unrest.

For these reasons the University considers that information relating to
the communications which includes the words or phrases “December 3”, “Dec.
3”, “3 December”, “3rd December”, “3rd Dec.” etc. and “Warwick for free
education”, “WFFE”, “occupation”, “injunction”, “police”, “court”,
“assault”, “Paul Wyld”, “Lloyd”, “IPCC”, and “Independent Police
Complaints Commission” between the staff members named above and
communications with West Midland Police are exempt under section 36 of the
Act.

-       The result of any internal inquiries into the events of December
3, 2014 carried out by the University. In his statement on Dec. 8, Nigel
Thrift claimed that the “Registrar has also asked an independent member of
our University Council to review the outcomes of any specific complaints
that are raised by students or staff regarding the actions of members of
the University in these events.” I request the outcome of any such review.

No formal complaints were submitted to the University and therefore no
internal inquiry was conducted. Thus, the University does not hold any
requested information in relation to this question.

-       The full costs to replace the damage to the rear Senate House door
done on Dec. 4, 2014.

The full costs to replace the damage to the rear door of Senate House was
£4,614 including Vat.

If you are unhappy with the way in which your request has been handled by
the University of Warwick, you can request an internal review and in the
first instance you are advised to follow the procedure outlined here:
http://www2.warwick.ac.uk/services/gov/l...

If you remain dissatisfied with the handling of your request or complaint,
you have a right to appeal to the Information Commissioner at:

The Information Commissioner’s Office

Wycliffe House

Water Lane

Wilmslow

Cheshire

SK9 5AF

Phone: 0303 123 1113

Website: www.ico.gov.uk

There is no charge for making an appeal.

Yours sincerely,

Jo Horsburgh

Jo Horsburgh  | Deputy Registrar
University House  |  University of Warwick  |  Coventry  |  CV4 8UW

Clare Hymer, University of Warwick

Dear Ms Horsburgh,

RE: Freedom of Information Act Appeal

I respectfully request an internal review of the University of Warwick’s refusal to answer positively aspects of my request for information under the Freedom of Information Act 2000.

My request was made on Sept. 17, and I received a response on Oct. 27. You can find the publicly available correspondence at: https://www.whatdotheyknow.com/request/t....

There is one element of your rejection I would like internally reviewed.

One element of the request was for:
“Communications (emails, memos, letters) between any and all of the following members of the University and SU staff which includes the words or phrases “December 3”, “Dec. 3”, “3 December”, “3rd December”, “3rd Dec.” etc. and “Warwick for free education”, “WFFE”, “occupation”, “injunction”, “police”, “court”, “assault”, “Paul Wyld”, “Lloyd”, “IPCC”, and “Independent Police Complaints Commission”: Nigel Thrift, Ken Sloan, Mark Kennell, Mike Glover, Jo Horsburgh, Peter Dunn, Richard Lambert, Stuart Croft, Roberta Wooldridge Smith, Lucy Taylor, Ian Rowley, Paul Wyld, James Brecken, Cat Turhan, Rob Ankcorn, and Kelly Parkes-Harrison, from Dec. 2, 2014 – the present day. Any communication between any of these people and West Midlands Police including these words during the same period.”

You rejected this part of the request under section 36 2(b) and (c). Your grounds were that:
“Disclosure of such information would inhibit the free and frank provision of advice and the free and frank exchange of views for the purposes of deliberation. University staff members were under significant pressure prior to and during the protest to deploy strategies to minimise disruption and prevent disorder. In the aftermath, further deliberation was needed to prepare for more protests which were likely to occur.
The disclosure of internal thinking processes and deliberations would, in the opinion of the qualified person, be damaging to the ultimate quality of decision-making within the University. Such disclosure may lead to less candid and robust discussions in the future and difficult choices being avoided.
The University believes that staff who contribute to such exercises should feel free to engage in difficult discussions without fear that their advice and deliberations will be published and therefore need an environment in which they feel able to express themselves candidly.  The prospect of disclosure to the public at large would have an inhibiting effect on any future exercise, to the detriment of the future success and security of the University. 
The University has considered whether, in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information and has concluded that it does, having regard in particular to the need to maintain a space away from the public domain for discussions and exchanges leading to the formulation of policies and pronouncements, especially during a time of unrest.”

I dispute your application of Section 36 to the request.

Exemption, Section 36

Firstly, Section 36 is prejudice based, so you need to prove that disclosure would likely cause prejudice or harm to the “effective conduct of public affairs”. There is little in your case which proves this. You merely state that “The prospect of disclosure to the public at large would have an inhibiting effect on any future exercise,” without giving any reasons as to why this might be. It is far from clear that having internal deliberations publically available would inhibit quality decision making; on the contrary, most political scientists see a direct correlation between transparency, confidence in decision making, and quality of decision making. When staff and students are able to see the processes which lead to decisions, they will have more confidence in the process. They will also be able to hold the decision makers to account, which will improve the quality of decision making.

Section 36(b)

Your argument, when based on section 36, 2 (b), is essentially a ‘chilling effect’ argument. Since a large period of time has passed since the nucleus of the events – nearly a year – it is not a pressing enough issue that urgent decisions remain to be taken, that may be effected by disclosure. ICO guidance notes that “once the decision in question is finalised, chilling effect arguments become more and more speculative as time passes” (https://ico.org.uk/media/for-organisatio...).

Section 36(c)

Your argument is also based on section 36, 2 (c). This, as the ICO explains, is “concerned with the effects of making the information public”. The Information Tribunal states that this sub-section applies “where the disclosure would prejudice the public authority’s ability to offer an effective public service or to meet its wider objectives or purposes due to the disruption caused by the disclosure or the diversion of resources in managing the impact of disclosure” (http://www.informationtribunal.gov.uk/DB...). The ICO notes that “the prejudice claimed under (c) must be different to that claimed under (b);” but you seemingly offer no separate argument that this sub-section applies in this case, and there is little reason to think it does. The Information Tribunal also noted: “Some prejudice other than that to the free and frank expression of advice (or views, as far as section 36(2)(b)(ii) is concerned) has to be shown for section 36(2)(c) to be engaged” (http://www.informationtribunal.gov.uk/DB...). You offer no additional argument. Indeed, for all the arguments I have listed here, there is every reason to think it will not.

There is one point where you mention the need for a private space for decisions to be made, although the argument is not fleshed out, and it appears to apply only to the public interest test. The ICO writes:
“This need for a safe space will be strongest when the issue is still live. Once the public authority has made a decision, a safe space for deliberation will no longer be required. If it was a major decision, there might still be a need for a safe space in order to properly promote, explain and defend its key points without getting unduly sidetracked. However, this can only last for a short time and the public authority would have to explain clearly why it was still required at the time of the request on the facts of each case.”
Since there are not many ongoing decisions to be made about this issue – the events of Dec 3., the Cops off Campus demo, and the occupation are all long over, the IPCC report is to be released imminently – this argument doesn’t hold much weight. You fail to “explain clearly why [this exemption is] still required”.

Public interest test

Secondly, the exemption is qualified – that is, subject to a public interest test. The guidance issued by the ICO states that: “even if the exemption applies, the public authority must still disclose the information unless the public interest in maintaining the exemption outweighs the public interest in disclosing the information”.

You state that: “The University has considered whether, in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information and has concluded that it does, having regard in particular to the need to maintain a space away from the public domain for discussions and exchanges leading to the formulation of policies and pronouncements, especially during a time of unrest.”
There is no indication of what the University might consider a public interest argument in favour of disclosure.
I argue that the public interest clearly weighs in favour. Numerous members of the Warwick, and national, community have taken a strong interest in the events of Dec. 3, and continue to do so. The events were covered in national media (http://www.theguardian.com/education/201..., http://www.bbc.co.uk/news/uk-england-cov...), and have been a feature of student media and conversations on campus ever since. Possibly the largest demonstration in Warwick’s history occurred after the events, further evidence of the strength of feeling that many hold concerning this issue (http://coventryobserver.co.uk/news/cops-...). The Centre for Human Rights in Practice even felt compelled to initiate a survey, summit, and report on protest at the University as a result (http://www2.warwick.ac.uk/fac/soc/law/re...). A petition with thousands of signatures, and a letter signed by over 100 academic staff members, demonstrates this further (https://www.change.org/p/the-university-..., http://criticallegalthinking.com/2014/12...). There is little that has occurred at Warwick in recent years which can be considered more in the public interest.

As such, the quality of decision making around the events is of extreme importance to the public, especially students at Warwick. We are now sufficiently far from events that we can take a dispassionate look back and assess the decision making. If disclosure of the discussions around the events would cause an outcry, as the University appears to be suggesting, then it appears the decision making was poor. In that case, there is a strong public interest in viewing these processes, and holding the decision makers to account, in order to improve the quality of decision making and general democratic participation. If, on the other hand, the decision making was of a high quality, there will be no general outcry, and the University’s argument that prejudice or harm would be caused would be rendered incorrect.

The opinion of the qualified individual weighs in the public interest argument. However, the ICO writes that: “If the qualified person has decided that disclosure would prejudice or inhibit, this will carry a greater weight than if they said disclosure would be likely to prejudice or inhibit” (my emphasis). Since the University’s qualified individual was of the opinion that disclosure “would be likely to” prejudice or inhibit, it carries less weight.

Literature and guidance on these arguments

My argument is backed by the literature on FOI guidance and tribunal rulings.

The Ministry of Justice guidance, for example, states that public interest arguments under Section 36 can include the fact that “Open policy making may lead to increased trust and engagement between citizens and government; the desirability of citizens being confident that decisions are taken on the basis of the best possible information; knowledge that the arguments relating to a debate will be disclosable will in fact improve the quality of those arguments.” The MoJ adds, “Far from inhibiting the frank provision of advice, there might be circumstances where the prospect of disclosure would enhance the quality of advice… more open policy making can result in better policy formation.”

Research carried out in 2009 by UCL’s Constitution Unit found that, “FOI has not caused a ‘chilling effect’ on frank advice and deliberation” (http://www.ucl.ac.uk/constitution-unit/r...). They described the “pervasive” argument as a “myth”.
These circumstances clearly apply to Warwick and Dec. 3. The University has been roundly criticised for its poor decision making, and the Vice Chancellor just recently argued that: “If we can improve communication, we can improve trust in the institution” (The Boar, 04/11/2015, 38(3), p.3). Peter Dunn, Head of Press and Communication, recently stated that, “The university has already said that it could have communicated more quickly at the time and is examining how it can enhance our communications with the student body.” These statements are an acknowledgement at the highest level that Warwick needs to improve communication and trust in its institutions and decision making processes, and that students, staff and alumni currently lack this trust. There are serious concerns that the University handled the situation poorly, and many in the Warwick community need to know how decisions were undertaken in order to properly scrutinise them and unsure such difficulties are handled more appropriately in the future. Disclosure will not harm that, but will improve it.

Lastly, the public authority is required to name the ‘qualified person’ in whose judgement harm will occur to decision making processes. This is to ensure they have sufficient authority to make such a judgement, and allow the individual requesting the information to check that the relevant person has issued the judgement. The University has failed to do that in this case.

For all these reasons, I argue that Section 36 does not apply to this section of my request, and I ask for an internal review. I reserve the right to appeal to the ICO if I am again turned down.

You have a responsibility to reply within 20 working days. As such, I expect a response by Dec. 10, 2015.

Please confirm receipt of this email.

Kind regards,

Clare Hymer

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