First-tier Tribunal (General Regulatory Chamber)

Neutral citation number: [2025] UKFTT 426 (GRC)

 Case References: FT/EA/2024/0310, FT/EA/2024/0348

First-tier Tribunal

(General Regulatory Chamber)

Information Rights

 Heard by: Cloud Video Platform.

Heard on: 26 February 2025

Decision given on: 14 April 2025

 

Before

 

TRIBUNAL JUDGE FOSS

TRIBUNAL MEMBER GRIMLEY-EVANS

TRIBUNAL MEMBER SCOTT

 

Between

 

PAUL LATHAM

Appellant

and

(1)          THE INFORMATION COMMISSIONER

(2)          UNIVERSITY COLLEGE LONDON

 Respondents

Representation:

For the Appellant: appeared in person

For the First Respondent: did not appear

For the Second Respondent: Khatija Hafesji, Counsel

 

Decision:

Appeal FT/EA/2024/0310 is Dismissed.

Appeal FT/EA/2024/0348 is Dismissed.

 

REASONS

 Judge Foss:

1.      This decision determines two appeals.

2.      The first appeal, FT/EA/2024/0310, is against the Decision Notice of the Information Commissioner ("the Commissioner") referenced IC-298424-Z2N7 of 1 August 2024.

3.      The second appeal, FT/EA/2024/0348, is against the Decision Notice of the Commissioner referenced IC-298406-P3G3 of 1 August 2024.

4.      In each case, the Commissioner found that, on the balance of probabilities, the Second Respondent, ("UCL"), did not hold information falling within scope of the Appellant's requests for information.

Background

5.      UCL is a university.

6.      University College London Hospitals ("UCLH") is an NHS Foundation Trust which operates six hospitals in London.

7.      UCL and UCLH are distinct legal entities. Certain members of academic staff at UCL are also employed by the NHS at UCLH as clinicians.

8.      UCL Business ("UCLB") is a private limited company and a wholly owned subsidiary of UCL. Its main function is to manage and commercialise UCL intellectual property.

9.      Each of UCL, UCLH and UCLB is a public authority in its own right for the purposes of the Freedom of Information Act 2000 ("FOIA").

10.  UCLH assesses, treats and monitors patients for prostate cancer. In this context, one therapy used by UCLH is high intensity focused ultrasound ("HIFU"). A company called SonaCare Medical LLC ("SonaCare") manufactures the HIFU device, Sonablate, which UCLH uses for focal HIFU.

11.  The Appellant's requests for information which are the subject of these appeals relate to:

a.      the existence of any partnership agreement and financial arrangements between SonaCare and UCL since May 2013; and

b.      discussions which UCL may have held relating to two medical studies published in 2019 and 2020, whose content might be taken to raise issues as to the effects of the HIFU therapy treatment described therein. The Appellant characterises the studies as addressing the discovery of a pathological landscape of cancer recurrence in patients investigated at salvage prostatectomy stage, or a loss of erectile function in 60% of men, both following treatment with the Sonablate device.

12.  Pervasive through the Appellant's written and oral submissions in both appeals is an allegation by the Appellant that UCL, and specifically, Professor Emberton, Dean of Faculty of Medical Sciences and Professor of Interventional Oncology at UCL and Honorary Consultant Urologist at UCLH, may have misled, or attempted to mislead, the Commissioner, and, by extension, the Tribunal, as to the existence of information responsive to the Appellant's requests.  The Appellant himself says that it is a speculative allegation, characterising it at the hearing as being advanced "on thin ice". Having carefully considered all the material before us, we can see no basis for any such allegation.

 

Appeal FT/EA/2024/0310 (Request 1)

The Request

13.  On 22 December 2023, the Appellant made this request ("Request 1") of UCL:

"Please supply full details of the financial arrangements between University College London (UCL) and/or University College London Hospital (UCLH) relating to the partnership agreement entered into between UCL and SonaCare Medical entered into early in May 2013 (or there abouts) to create a HIFU Center of Excellence, (see press announcement in 'DI Europe 18th July 2013' refers). [Part 1 of Request 1]

Please provide full details of the financial arrangements in any other contracts or partnership agreements entered into since May 2013 between UCL and/or UCLH relating to physician training, clinical studies, patient satisfaction research and/or technology development in the design, production, use and/or promotion of Sonablate 500 HIFU equipment." [Part 2 of Request 1]

14.   On 16th February 2024, UCL responded to the Appellant as follows:

 

"There is no formal partnership agreement between UCL and SonaCare.

 

Please note, UCL is a separate entity from UCLH so we cannot provide a formal response on behalf of UCLH. I understand they have responded separately on this and explained the nature of the relationship with UCLH."

 

15.  On 16 February 2024, the Appellant requested an internal review. He said that he had not specified "formal" partnership arrangements and that Request 1 was intended to cover any type of co-working or collaboration relating to the Sonablate 500 HIFU device.

16.  The Appellant's request for an internal review was accompanied by two press releases, and four articles from medical journals.

17.  The first press release, issued by SonaCare, is dated 30 April 2013. It said that SonaCare and UCLB, "a leading technology transfer company that supports and commercializes research and innovations from UCL (University College London), today announced a partnership to integrate SmartTarget image registration and fusion software into SonaCare Medical's innovative HIFU systems." It goes on to say "SmartTarget is based on breakthrough image analysis algorithms developed at the UCL Centre for Medical Image Computing and has undergone extensive clinical evaluation as part of clinical research studies led by Professor Mark Emberton, MD, Professor of Interventional Oncology and Director of the Division of Surgery and Interventional Science at UCL. ..."

18.  The second press release, also issued by SonaCare and published in DI Europe, is dated 18th July 2013. It said this:

 

"SonaCare Medical, a global leader in minimally invasive high intensity focussed ultrasound (HIFU) technologies, announced early May that it has partnered with University College London (UCL) to create a HIFU Center of Excellence. The Center will provide physician training and proctoring along with clinical studies, patient satisfaction research and advanced technology development associated with two innovative HIFU systems: the Sonatherm laparoscopic HIFU surgical ablation system and the Sonablate 500 transrectal HIFU surgical ablation system. According to Mark Emberton, MD, Director of the Division of Surgery and Interventional Science, University College London, "our collaboration with SonaCare Medical's innovative technology provides a great platform for us to help expand the use of HIFU in a responsible and effective way. Tissue preserving strategies have been used successfully in other solid organ cancers, such as kidney cancer with great results. Published data from our practice continue to demonstrate that focal therapy delivers good cancer control along with a significant reduction in treatment side effects, which suggests a new option in a spectrum of prostate cancer care that, based on risk profile, could effectively balance clinical benefits and quality of life". "The highly precise Sonablate 500 HIFU transrectal system has already proven an effective way to transition from treating the entire prostate to treating only the known prostate cancer" added Dr Emberton."

 

19.  The four articles accompanying the Appellant's request for an internal review identify numerous authors, or contributors to the studies described therein, including personnel from UCL and UCLH of whom one is Professor Emberton, together with various, associated commercial partners or funders, including SonaCare.

 

20.  Having undertaken its internal review, on 22 March 2024, UCL maintained its position, confirming that it did not hold the information requested.

 

21.  The Appellant complained to the Commissioner. The Commissioner investigated. 

 

The Decision Notice

22.  By his Decision Notice, the Commissioner decided that, on the balance of probabilities, UCL did not hold the information requested. He decided that UCL had consulted senior staff who would be in a position to know whether a relationship between UCL and SonaCare existed, and they had confirmed that no relationship existed. The Commissioner was not aware of any other information which indicated that SonaCare had a relationship with UCL.

 

The Appeal

23.  On 9 August 2024, the Appellant appealed against the Commissioner's decision. By his Grounds of Appeal, he submits, in summary, that:

a.      The SonaCare press release of 18 July 2013, indicated a partnership between SonaCare and UCL. In any event, the existence of a legal partnership was not a pre-requisite to Request 1; an informal collaboration or partnering arrangement would suffice to meet Request 1.

b.      Given the extensive collaboration between UCL and SonaCare spanning two decades, and the internationally renowned research remit of UCL and UCLB, it is highly likely that UCL and UCLH both hold substantive records responsive to Request 1.

 

24.  By his Response to the appeal dated 17 September 2024, the Commissioner submits that:

a.      He is satisfied, based on UCL's account to him, that UCL has conducted sufficiently rigorous searches for the requested information;

b.      There is no evidence of an attempt by UCL to mislead the Commissioner, as alleged by the Appellant.

c.       He was right to decide that, on the balance of probabilities, UCL does not hold the information requested.

 

25.  By its Response to the appeal dated 25 October 2024, UCL submits that:

a.      Part 1 of Request 1 was concerned with a specific partnership between UCL and SonaCare to create a HIFU Centre of Excellence, not with collaborative arrangements between them. UCL had taken reasonable steps to satisfy itself that there had not been any such partnership.

b.      UCL had conducted further searches and identified:

                                                              i.      information which was arguably within scope of Request 1, relating to a small amount of financial support paid by SonaCare to UCL in 2015 in error, which should have been paid to UCLH; and

                                                            ii.      a letter from SonaCare from 2014, which, although addressed to UCL, appears to be a proposal to designate UCLH as a SonaCare HIFU centre of excellence with associated financial support.

UCL was content to disclose this information to the Appellant.

c.       In relation to Part 2 of Request 1, there were no partnerships between UCL and SonaCare and, consequently, no relevant financial arrangements. As regards contracts between UCL and SonaCare, UCL had conducted further searches and had not identified any responsive information.

d.     The Commissioner was right to conclude on the balance of probabilities that UCL does not hold the requested information.

 

26.  The Appellant filed a Consolidated Reply to the Commissioner's and UCL's Responses in both appeals. We summarise it at paragraph 43 below.

 

Appeal FT/EA/2024/0348 (Request 2)

The Request

27.  On 6 March 2024, the Appellant made this request ("Request 2") of UCL:

 

"A study published in European Urology (Marconi et al; 76 (2019) 27-30) in March of that year by UCLH with Guys, Kings and Imperial found:

 

"Specifically, we identified that men experiencing an infield recurrence had almost four times the risk of developing biochemical failure after S-RALP, independent of margin status, Gleason grade group, PA, or pT stage. This suggests that those experiencing infield recurrence might have a more aggressive cancer phenotype and are thus more likely to need multimodal therapy with or without systemic therapy. One hypothesis for this finding is that an initial incomplete ablation might result in the development of "ablation resistant" clones that repopulate the ablation field and metastasise locoregionally. The biological mechanism of this phenomenon is yet to be described and further research exploring the role of genetic and epigenic alterations in these tumours is ongoing."

 

This finding opens the possibility HIFU could cause higher grade cancers re-populating the prostate putting men with prostate cancer at greater harm. Please provide copies of minutes of research and/or clinical meetings which have happened since February 2019 which discuss the follow-up research referred to in quote marks above, including minutes of any meetings or conclusions made by researchers at UCL pertaining to research undertaken in the Marconi study."

 

28.  By a second email sent to UCL on 6 March 2024, the Appellant made this request:

 

"A study published in BMC Urology (Thompson et al: BMC Urology (2020) 20.81) on 1st July of that year by UCLH found "Nerve sparing was not feasible due to HIFU-induced NVB fibrosis in 60.8%, suspicion of posterolateral EPE on MRI or high-grade cancer near the NVB in 23.0% and erectile dysfunction in 17.9%" (p.5).

 

This finding opens the possibility that in the case of failure of Primary HIFU, Salvage Robot-Assisted Radical Prostatectomy (s-RARP) is considered unfeasible in the majority of cases. Please provide copies of research and/or meetings of researchers which discusses or review [sic] the issue referred to in quote marks above produced at UCL since June 2020 in pdf format."

 

29.  UCL treated the two emails as a single request (Request 2).

30.  We refer to the study published by Marconi et al. as "the Marconi study", and the study published by Thompson et al. as "the Thompson study".

31.  On 7 March 2024, UCL responded saying that it did not hold any information in scope of Request 2.

32.  In relation to the Marconi study, UCL said "There are no discussions of the follow-up research published in European Urology (Marconi et al; 76 (2019) 27030 in any meeting minutes since February 2019." 

33.  In relation to the Thompson study, UCL said "There are no discussions of the issues referred to in BMC Urology (Thompson et al; BMC Urology (2020 20.81) in any meeting minutes since June 2020."

 

34.  On 7 March 2024, the Appellant sought an internal review.

 

35.  On 22 March 2024, UCL maintained its position on internal review.

 

36.  On 3 April 2024, the Appellant complained to the Commissioner. The Commissioner investigated.

 

The Decision Notice

37.  By his Decision Notice, the Commissioner decided that it was more likely than not that UCL did not hold the requested information. While he noted that UCL had not carried out electronic searches for the requested information, he recognised that it had consulted relevant members of staff, who would have been likely to be aware if UCL held responsive information, and that they had confirmed that such information was not held by UCL.

 

The Appeal

38.  On 8 August 2024, the Appellant appealed against the Commissioner's decision. By his Grounds of Appeal, he submits, in summary, that:

a.      The Commissioner should not have relied upon enquiries undertaken by UCL of Professor Emberton, given the conflicts of interest the Appellant alleges against him.

b.      The Commissioner erred in concluding that there was no indication that further research had been carried out by UCL or anyone else, and in concluding that no further research was contemplated, given that the Marconi study had stated that further research was ongoing.

 

39.  By his Response to the appeal dated 8 October 2024, the Commissioner submits, in summary, that:

a.      None of the documents submitted in the appeal by the Appellant indicated that Professor Emberton had provided a false statement that no information was held within scope of Request 2; indeed Professor Emberton had actively approached other members of staff at UCL whom he believed might hold the requested information, in order to assist with UCL's response to Request 2.

b.      It may be the case that further research referenced in the Marconi study has been undertaken since May 2019 but that does not mean that UCL hold the requested information: FOIA is not concerned with what information a public authority should hold and relates only to what information is held.

c.       The Commissioner was satisfied that UCL's searches were sufficiently rigorous; he was entitled to accept at face value UCL's responses where, as in this case, there was no evidence of any attempt to mislead the Commissioner, or of a motive to withhold the requested information.

d.     The Commissioner was right to decide that UCL does not, on the balance of probabilities, hold the requested information.

 

UCL's Response to both appeals

 

40.  By its Response to both appeals, dated 25 October 2024, UCL submits, in summary, that:

a.      It would have been impractical to conduct a central keyword search of its systems, and instead UCL took the reasonable course of making enquiries of Professor Emberton, who had no recollection of the relevant academic papers being discussed, and of another professor, Professor Moore, who did recall such discussions but that those discussions took place at UCLH, and before publication of the studies (thus falling out of temporal scope of Request 2). If responsive information did exist, it would be held at UCLH, not UCL.

b.      On the balance of probabilities, UCL did not hold information in scope of Request 2.

 

Appellant's Consolidated Reply in both appeals

41.  We understand that the Appellant filed a Reply to the Commissioner's Responses in both appeals, or possibly a separate Reply in each appeal, which we have not seen, and that UCL's Response of 25 October 2024 to both appeals was prepared with the benefit of sight of that Reply or Replies.

 

42.  We further understand that in late 2024 or early 2025, the Appellant revised the Reply or Replies into a document called "Consolidated Reply (Revision B: Generally revised and updated)", which appears to have first been revised on 21 January 2025, and then on 27 January 2025. It is the 27 January 2025 version which we have before us ("the Consolidated Reply").

 

43.  By the Consolidated Reply, the Appellant submits, in summary, that:

a.      In assessing UCL's analysis of the requests, the Commissioner failed to take into account a conflict of interest on the part of Professor Emberton arising from his having a long-standing private paid consultancy with SonaCare, which degraded the scope, rigour and efficiency with which UCL's searches for the requested information had been undertaken.

b.      He wishes to rely on a revised ground of appeal as follows:

 

"The Appellant disagrees that a sufficiently rigorous search has been undertaken in Appeals 0310 and 0348 following the principal established in the Upper Tribunal in Bromley v The Information Commissioner & The Environment Agency due to the lead respondent on behalf of the public authority - in this case Professor Mark Emberton representing UCL- having a Conflict of Interest by virtue of a long standing private paid consultancy with the key party in both Appeals (SonaCare Medical) and the consequent reduced credibility of replies received by the Commissioner. On the basis of inadequate searches having been conducted, reluctance to conduct a proper search and potential motive to conceal information related to a conflict of interest, supported by the evidence provided by the Appellant in either case, the Appellant argues that the Commissioner should not have reached the Decision that, on the balance of probabilities, the College does not hold the requested information in either Appeal, and invites the Tribunal to allow Appeals 0310 and 0348, and substitute a notice in each case that orders the Commissioner to take steps in relation to the request for information."

 

c.       The Commissioner was aware of Professor Emberton's conflict of interest from a previous FOIA request. We understand that to be the Appellant's request to UCLH of 29 September 2023, resulting in Decision Notice referenced IC-276682-X1R4 of 17 April 2024.

d.     Against that background:

                                                              i.      UCL had no plan to address the conflict of interest, and all UCL's searches for the requested information were undertaken without proper regard for that issue.

                                                            ii.      UCL's searches were inadequate.

                                                         iii.      UCL was reluctant to carry out a proper search, evidenced by evasive and/or misleading replies to the Commissioner's investigation.

                                                         iv.      UCL was motivated to withhold the requested information.

 

The legal framework

44.  The relevant provisions of FOIA are as follows:

Section 1

General right of access to information held by public authorities.

 

(1)         Any person making a request for information to a public authority is entitled-

(a)         To be informed in writing by the public authority whether it holds information of the description specified in the request, and

(b)         If that is the case, to have that information communicated to him.

 

Section 58

Determination of appeals

 

(1)         If on an appeal under section 57 the Tribunal considers-

(a)          that the notice against which the appeal is brought is not in accordance with the law, or

(b)          to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently, the Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner; and in any other case the Tribunal shall dismiss the appeal.

 

(2)         On such an appeal, the Tribunal may review any finding of fact on which the notice in question was based.

 

45.  The import of s58 FOIA is that the right of appeal to the First-tier Tribunal involves a full merits consideration of whether, on the facts and the law, the public authority's response to the Request is in accordance with Part 1 of FOIA (Information Commissioner v Malnick and ACOBA [2018] UKUT 72 (AAC); [2018] AACR 29, at paragraphs [45]-[46] and [90]. The Tribunal has jurisdiction to decide, de novo on the merits, whether the Commissioner's decision is in accordance with the law.

The hearing

46.  We had before us a bundle of 1871 pages in relation to Appeal FT/EA/2024/0310 concerning Request 1, and a bundle of 1216 pages in relation to Appeal FT/EA/2024/0348 concerning Request 2.

 

47.  UCL called evidence from two witnesses in both appeals.

 

48.  The first witness was Professor Caroline Moore, Head of Urology at UCL and a urology consultant at UCLH. Professor Moore specialises in the treatment of prostate cancer for her clinical and research work, with a focus on the use of MRI to find, monitor and treat smaller cancers. In her UCL role, she designs and leads research in this area, and in her UCLH role, she is consulted by patients who are being assessed, monitored or treated for prostate cancer.

 

49.  By her statement Professor Moore gave detailed evidence as to the following matters:

a.      The typical arrangements and interrelationship between UCL and UCLH in research and development, and the role of clinical academics.

b.      The different roles that institutions and individuals play in clinical trials.

c.       The various academic papers relied on by the Appellant, and whether they are evidence of a partnership between UCL and SonaCare.

d.     Her own interactions with and knowledge of any collaborations or partnership with SonaCare either through her roles at UCL or UCLH or in a personal capacity.

e.      Her knowledge and any recollection of discussing the studies referred to by the Appellant in Request 2.

 

50.  The second witness was Ms Alexandra Potts, Chief Privacy Officer for UCL, and Head of UCL's Data Protection and Freedom of Information Team. By her statement, Ms Potts explained the searches undertaken by UCL for the requested information.

 

51.  Both witnesses gave their evidence with care and candour.

 

52.  Professor Emberton did not give evidence. In its Response to the appeals, UCL explain that this is because in the Appellant's Replies to the Commissioner in these appeals (which we understand were replaced by the Consolidated Reply), the Appellant raised issues beyond the scope of these appeals, in particular in relation to the clinical decision-making of Professor Emberton when treating the Appellant. UCL considers that it would be inappropriate for Professor Emberton to be questioned on such matters in these appeals and therefore resolved not to call him as a witness.

 

Analysis - Request 1

 

53.  At the outset, we observe that UCL, being a distinct legal entity from UCLH, is only obliged to respond to a FOIA request to UCL concerning information which UCL may hold. In responding to such a request, UCL does not speak for or on behalf of UCLH, to whom any separate enquiry concerning information which UCLH may hold, should be directed. The same is true, vice versa, and of equal application to Request 2.

Scope and sufficiency of searches

54.  UCL's searches focused on a formal partnership agreement or contract between UCL and SonaCare. The sufficiency of the scope of those searches necessarily rests on a proper construction of Request 1.

55.  We find that Part 1 of Request 1 was a request for information about the financial arrangements relating to a partnership agreement entered into in or around May 2013 between UCL (and/or UCLH) on the one hand and SonaCare on the other hand, to create a HIFU Centre of Excellence. The request for details of financial arrangements relating to such a partnership agreement was necessarily predicated on the existence of such a partnership agreement.

56.  We find that Part 2 of Request 1 was a request for details of the financial arrangements in any contracts or partnership agreements between SonaCare and UCL, or between SonaCare and UCLH, other than that specific partnership referred to in Part 1 of Request 1. Although SonaCare is not referred to by name in Part 2 of Request 1, the reference to "any other" contracts or partnership agreements, following on from Part 1 of Request 1, indicates that Part 2 is intended to encompass any contracts or partnership agreements between SonaCare on the one hand and UCL and/or UCLH on the other, other than that referred to in Part 1 of the Request.

57.  We find that UCL construed Parts 1 and 2 of Request 1 correctly.

58.  In his request for an internal review and in his Grounds of Appeal, the Appellant sought to revise Part 1 of Request 1 by suggesting that it encompassed co-working or collaborative arrangements of a non-formal nature.

59.  In that regard, the Appellant relied on the two Sonacare press releases to which we have already referred.

60.  The first press release refers to a partnership between SonaCare and UCLB, not UCL. That falls outwith the scope of Request 1.

61.  We read the tone and content of the second press release as intended to advertise SonaCare's technologies. While SonaCare refers to its having announced in early May 2013 that it has "partnered" with UCL, we do not read that as indicating the existence of a formal partnership agreement or contract between SonaCare and UCL. In our view, read in context, the word "partnered" conveys something more informal akin to collaboration.

62.  The second press release attributes a comment to Professor Emberton. While he is described in the release as "Director of the Division of Surgery and Interventional Science, University College London", we do not read that as evidence of the matters SonaCare refers to as reflective of a formal partnership agreement or contract with UCL. It is simply a reference to his role title. We have no information before us as to the precise context in which such comment was provided, whether it is the full comment, and whether, if it were made, Professor Emberton approved it. We do not in any event consider that a press release such as this can be taken to record matters with legal precision. As it is, Professor Emberton is only recorded as referring to "collaboration with SonaCare's technology". Given UCL's explanations in these appeals that clinical practice using SonaCare's technology is undertaken by UCLH, not UCL, it may well be, in any event, that such collaboration as the release refers to is, in fact, a reference to collaboration with UCLH.

63.  We do not consider that either of these SonaCare press releases, provided and relied on by the Appellant after Request 1 had been made, is effective to alter the proper construction of Request 1 as we have determined it. They do not, in any event, of themselves confirm a partnership agreement or contract between SonaCare and UCL.

64.  As regards UCL's searches for information responsive to Part 1 of Request 1: UCL accepts that it did not conduct a search of its IT systems. It says that its IT estate is complex, given that UCL is today an amalgamation of different institutions which joined UCL at different stages in UCL's IT model's maturity, and that many of them still retain and use their own IT systems.

65.  Rather, in the first instance, UCL resolved to make enquiries of those teams in UCL where it was thought most likely that any responsive information would reside. Those enquiries started with UCL's central finance division who said that they did not have oversight of specific financial agreements and that enquiries should be made instead of UCL's Innovation and Enterprise team. That team said that it did not hold responsive information, and instead referred the request to UCLB, which responded by its Director of Legal that it had no relevant involvement, although it would subsequently transpire that it did hold some material relating to SonaCare, which we address separately below, but which falls outwith the scope of Part 1 of Request 1. The Director of Legal then transferred the enquiry to Professor Emberton. Professor Emberton confirmed that he did not believe that a formal partnership existed between UCL and SonaCare. 

 

66.  The Appellant has indicated that he expected that UCL would search for responsive information in (1) notes of UCL research meetings, (2) UCL emails and (3) UCL Council records. Ms Potts explained that in relation to research meetings, UCL would need to identify where such notes were stored, in relation to emails, UCL would need to identify the relevant individuals and keywords, and that in relation to Council meetings, UCL would need to approach the governance team. However, having undertaken the enquiries described of the finance and enterprise teams, and then having spoken to Professor Emberton, UCL did not consider it necessary to, and did not, undertake the additional searches expected by the Appellant.

 

67.  We are satisfied that the train and extent of enquiries undertaken, culminating in enquiry of Professor Emberton, were sufficient and reasonable in all the circumstances. The search started in those parts of UCL where it was reasonably thought, given the nature of the request, that it was most likely that any responsive information would reside. It then progressed to the very person named in the press releases supplied by the Appellant, Professor Emberton, who is a senior member of staff with detailed knowledge of the area of work concerned. We are also satisfied that it was reasonable for UCL to conclude at this stage that no electronic searches were then required, given both the enquiries already undertaken and their results and the nature of its IT systems as described.

 

68.  During the progress of this appeal, UCL has conducted further searches, acknowledging, fairly, that its initial searches had been more focused on Part 1 of Request 1.

69.  Those further searches entailed a request of UCL's Accounts Payable department to run a specific search for payments made to UCL by SonaCare. On 7 October 2024, that search revealed two invoices issued by UCL to SonaCare Medical LLC dated 27 April 2015 and 28 October 2015, in the respective sums of £21,551.72 and £12,931.04. The first describes the goods and services charged for as "Clinical Trials: 1 Jun 2014 - 28 Feb 2015" and "SonaCare clinical development package - Administrative, academic and clinic research support. Period: 01 Jun 2014 - 01 Mar 2015". The second describes the goods and services charged for as "Clinical Trials: SonaCare clinical development package - Administrative, academic and clinic research support, Jun 2015 and September 2015 instalments" for the time frame "01-Apr 15 - 20-Nov 15".

70.  Ms Potts' further enquiries on the back of the discovery of those invoices led her to a further item: a letter from the then Chief Development Officer of SonaCare to Professor Emberton dated 11 February 2014.

71.  The letter is addressed to Professor Emberton at UCLH, not UCL, although it opens by saying that SonaCare is pleased to offer "University College of London (the University) designation as a centre of excellent in SonaSurgery and a SonaCare Medical Strategic "Development Partner" for Europe". The letter goes on to explain that SonaCare believes that these designations will assist the University and SonaCare in reaching their mutual goal of advancing image guided ablative technologies and their associated clinical indications. 

72.  It is clear from the remainder of the letter that the letter is effectively a proposal promising that, if the recipient accepts the designations offered, that will provide each party with mutual benefits, building on their collaborations in previous years. We read the letter as setting out SonaCare's stall as attractively as possible as to why the recipient should take up the proposal. It is, in short, a pitch. It does not comprise or evidence the existence of a partnership agreement or contract of the types indicated by Parts 1 or 2 of Request 1.

73.  Ms Potts has identified that the funds referenced in the two invoices relate to the financial support indicated in the letter of 11 February 2014 but were always intended to be paid to UCLH or UCLH Charity. In this context, she notes that the offer of financial support for technology acquisition includes reference to a new Sonablate system and probes. She understands from Professor Emberton that UCL has never owned any such equipment and that this support must have been intended to refer to UCLH as all patients are treated at UCLH, and it is UCLH which has the maintenance and service agreement for the Sonablate system provided by SonaCare.

74.  Ms Potts has further explained that SonaCare's reference to "the University" in the letter appears to have caused some administrative confusion at the time; while the instalments of funding referenced in the invoices were made to a UCL account, by November 2015 it was recognised by a Research Manager at UCLH that the payments should be made to UCLH Charity, and steps were taken to liaise with SonaCare so that the appropriate transfer of funds could be made to UCLH Charity. There was no evidence before us of the re-allocation of invoiced funds to UCHL but in all the circumstances, Ms Potts' explanation of these matters seems reasonable to us, and we accept it. 

75.  We do not find that the 11 February 2024 letter or the invoices comprise, evidence or relate to a partnership agreement or contract between SonaCare and UCL, and they are not consequently responsive to Request 1 as we have determined it should be construed.

76.  The Appellant submits that the existence of this information strongly suggests that information responsive to Request 1 should or must exist. We do not accept that that is a reasonable inference. Use by UCL of the search term "SonaCare" was evidently an appropriate search term to use because it identified the 11 February 2024 letter and associated invoices. It is reasonable to assume that if UCL's finance system held responsive information concerning SonaCare, that would have been identified by use of that search term.

77.  Moreover, given that the letter of 11 February 2014 clearly indicates future intentions as to the creation of a Centre of Excellence, that might tend to suggest that the two press releases of 2013 were not evidence that any partnership agreement or contract had been entered into between Sonacare and UCL prior to February 2014.

 

78.  It is not, in any event, any part of the application of FOIA to determine whether a public authority should hold information, only, on the balance of probabilities whether it does.

79.  The other items identified by Ms Potts are held by UCLB: (i) a letter of intent dated 10 July 2013 between SonaCare and UCLB to enter into an agreement to develop  patents and software related to a particular type of therapy which involved the use of the SonaCare HIFU system running software developed by UCL and the SonaCare team, (ii) an associated confidentiality agreement between SonaCare and UCL, signed by UCL on 17 July 2013, and (iii) a further confidentiality agreement between the same parties, signed by UCL on 27 October 2016.  Not only is this information held by UCLB, not UCLH, but it does not evidence matters which are the subject of Part 2 of Request 1.  It is not responsive to Request 1.

80.  In relation to Part 2 of Request 1, we are satisfied that it was sufficient and reasonable also for UCL to make enquiries of the Joint Research Office to identify any studies funded by SonaCare, given our understanding that that office, which we are told supports the development of a high quality clinical research portfolio at UCL and UCLH, would be likely to hold any responsive information.

 

81. Analysis - Request 2

Scope and sufficiency of searches

82.  Part 1 of Request 2 is predicated on there being research and/or clinical meetings which took place at UCL after February 2019 which discussed the follow-up research referred to in an article published in 2019 in European Urology, called "Robot-assisted Radical Prostatectomy After Focal Therapy: Oncological, Functional Outcomes and Predictors of Recurrence", written by Lorenzo Marconi and others (including Professor Emberton), (the Marconi study).

83.  The Marconi study makes clear on its face the entity with which each of its authors is associated. Professor Emberton is shown as being associated with both UCL and UCLH.

84.  Part 2 of Request 2 is predicated on there being research and/or research meetings which took place at UCL after June 2020 which discussed issues referred to in a research article published in 2020 in BMC Urology, called "Peri-operative, functional and early oncologic outcomes of salvage robotic-assisted radical prostatectomy after high-intensity focused ultrasound partial ablation", written by James E Thompson and others, (the Thompson study).

 

85.  The Thompson study does not refer to Professor Emberton. It does associate all nine of its authors with the Department of Uro-oncology, UCL and five of those nine with the Division of Surgery and Interventional Sciences, UCL. Professor Moore explained to the Tribunal that all the authors are part of the robotic surgery team at UCLH, and that only one of them has a paid contract with UCL.

 

86.  Again, for the same reasons as applied in relation to Request 1, UCL accepts that it did not perform a central search of UCL's servers to identify information falling within the scope of Request 2.

 

87.  Instead, UCL made enquiries of Professor Emberton and Professor Moore. Professor Emberton confirmed that he did not recall the Marconi or Thompson studies being discussed at any meeting at which he was present, and to the extent that they may have been discussed, then it would have been at meetings at UCLH, not UCL.  Professor Moore confirmed that if the studies had been discussed at any research meetings, then it would have been at meetings held at UCLH and not UCL. Both individuals are senior personnel who would, given our understanding of their respective specialisms and roles across UCL and UCLH, be best placed to recall and address such matters.

 

88.  Professor Moore explained that the context in which UCL might discuss patients is where UCL is the legal sponsor of a particular study. The cohort of patients referred to in the Thompson and Marconi studies was not part of a formal, single study sponsored by UCL and would not, therefore, have been discussed in UCL.  She accepted that that was not to say that individuals in both UCL and UCLH might not have discussed the studies, but it is more likely that any written record of a discussion taking place at UCL would have resulted from a formal study sponsored by UCL. Neither the Marconi nor Thompson studies was such a study.

 

89.  We accept Professor Moore's evidence that while she recalls meetings to discuss the studies prior to their publication, she does not recall such discussions after their publication, that is to say within the time periods referenced in Parts 1 and 2 of Request 2.

 

90.  In his cross-examination of Professor Moore, the Appellant sought to question the reliability of her evidence by putting to her that she works with Professor Emberton using SonaCare products at a private clinic. Professor Moore readily accepted that. She explained that she and Professor Emberton have published that they have worked with 1,032 patients who have received HIFU therapy; she has declared her work at the private clinic in her UCL declaration of interests; and she is not currently in a "financial group" with Professor Emberton.

 

91.  The Appellant asked Professor Moore whether her career progression is interlinked with focal therapy treatment. Professor Moore explained that focal therapy is just one element of her academic work in the NHS and in the private sector, and that she uses therapies other than HIFU.

 

92.  We found nothing in these matters to justify any suggestion that Professor Moore was anything other than a reliable witness, doing her best to assist the Tribunal on the matters of fact within her knowledge. Her work at a clinic other than UCLH or at UCL, resting on SonaCare products or technology, had no bearing on her evidence.

 

93.  We are satisfied that the scope of UCL's searches in relation to both Parts 1 and 2 of Request 2 was sufficient and reasonable in all the circumstances.

 

Motive

94.  The Appellant invites the Tribunal to consider whether Professor Emberton has sought to keep responsive information out of the public eye to avoid compromising his reputation, and that this may provide UCL with a motive to fall short of the highest standards of rigour and efficiency in its search for the requested information. He elaborates that submission as follows: it is not appropriate for UCL to rely on, or even consult, Professor Emberton because he has a conflict of interest resting in a private, paid consultancy with SonaCare, which he has failed to declare.

 

95.  We reject that submission. Professor Emberton's commercial arrangements with SonaCare are in the public domain. He himself has declared them. The Appellant supplied several articles reporting medical studies by numerous authors from a range of institutions, including Professor Emberton, and other personnel from UCL and UCLH. Those articles identify, where appropriate, which institutions are sponsors of the underlying trials, and their sources of commercial support. Where appropriate, they include UCL or UCLH as a sponsor of the underlying trial with commercial support from SonaCare. Additionally, they identify which authors, including Professor Emberton, receive funding from SonaCare, in open acknowledgement of the need to identify such sources and potential conflicts of interest.

 

96.  By its Response to the appeal, UCL confirms that Professor Emberton holds a consultancy with SonaCare in accordance with UCL's consultancy policy, which allows academics to work for third parties for up to 40 days per year, and that, to that end, Professor Emberton contracts directly with SonaCare.

 

97.  The Appellant alleges that Professor Emberton has failed over a period of six years to declare his SonaCare interests, other than in 2022. In that regard he showed us the UCLH Register of Interests, Gifts and Hospitality for 2022, and that in the entries therein next to Professor Emberton's name are three declarations concerning SonaCare: consultancy, travel reimbursement and teaching training, each with an estimated value of zero marked next to them, and consultancy marked as "accepted" but the travel reimbursement and teaching training not so marked.

 

98.  We do not consider that this information, so far as we can interpret it, indicates the failure alleged by the Appellant against Professor Emberton, although it is not part of our role to determine such matters per se.

99.  Relevantly for these appeals, however, we do not consider that the information indicates any conflict of interest on the part of Professor Emberton or UCL operative, or potentially operative, in UCL's response to the Requests. Apart from anything else, this is UCLH's Register of Interests, not that of UCL, which the Appellant did not show us; he told us that the UCL Register is not publicly accessible but was not prepared to accept that there may be a relevant distinction between the UCL Register and the UCLH Register, and assumed, in our view, wrongly, that because UCL has referred to its policy for the declaration by its employees of relevant interests, it is referring to the UCLH Register.

100.                      This seems to us to be a good example of the Appellant's repeated elision of UCL and UCLH in his approach to these appeals, which disregards the fact that they are distinct legal entities, including for the purposes of FOIA. Employees of each may represent them singly or together on occasions, given that it is common for medical academics to hold research roles and clinical roles at the same time. As UCL explained in its Response to the appeals: "Medicine is an applied science and clinical trials are a crucial aspect of medical research. There is therefore a significant degree of cross-fertilisation between academic research and the treatment of patients in clinical settings. That does not mean, however, that there is no meaningful distinction between academic and clinical roles and institutions; the two remain separate and distinct."

101.                      The Appellant further alleges that UCL and Professor Emberton have failed to agree a conflict-of-interest management plan. There is no evidence before us to justify that allegation but again, this is not an issue for determination by us, and we do not consider that any such failure is operative, or potentially operative, in UCL's response to the Requests.

 

102.                      Ms Potts accepted in cross-examination that in responding to the Requests, UCL had not considered UCL's Register of Professor Emberton's interests; that team does not have access to the relevant system. We do not consider that the absence of such a check by UCL invalidates its justification for relying on Professor Emberton's confirmations as part of UCL's broader searches.

103.                      We have not identified any fact or matter which, objectively viewed, could reasonably be taken to suggest that Professor Emberton or UCL has any motive to withhold the requested information. This is not a case where further responsive information has been identified and disclosed which is inconsistent with the results of any earlier searches to the extent that it suggests that UCL may have been minded not to properly undertake those earlier searches or that Professor Emberton may have been minded to withhold information.

104.                      UCL has given a detailed account and full visibility of its searches, including emails demonstrating the course of those searches. Based on all the material we have seen, it is impossible to conclude that UCL has been reluctant to search properly; quite the opposite.

105.                      There can seldom be certainty that information responsive to a FOIA request may not continue to exist after searches through a public authority's records. The test, however, is whether such information remains on the balance of probabilities. Given UCL's analysis of the Requests, the scope and sufficiency of its initial searches, the fact of its subsequent searches and the disclosure of the results of those searches, we are satisfied that, on the balance of probabilities, UCL does not hold information responsive to Request 1 or Request 2.

Conclusion

106.                      We find that the Commissioner's decision that, on the balance of probabilities, UCL does not hold information responsive to Request 1 in appeal FT/EA/2024/0310, was in accordance with the law.

107.                      We find that the Commissioner's decision that, on the balance of probabilities, UCL does not hold information responsive to Request 2 in appeal FT/EA/2024/0310, was in accordance with the law.

108.                      The appeals must therefore be dismissed.

 

 

Signed: Judge Foss                                                                                                    Date: 11 April 2025