Bishop Hill No offence established?
Feb 25, 2010 Climate: CRU Climate: Parliament FOI Some explanation of the rather surprising statements on FoI made by Sir Edward Acton and his colleagues in their submission to the Parliamentary Select Committee has emerged. As noted in the previous post, Sir Edward said that no offence under the FoI had been established and that the evidence was prime facie in nature. Here is the exact quote for reference
On 22 January 2010, the Information Commissioner’s Office (ICO) released a statement to a journalist, which was widely misinterpreted in the media as a finding by the ICO that UEA had breached Section 77 of the FOIA by withholding raw data. A subsequent letter to UEA from the ICO (29 January 2010) indicated that no breach of the law has been established; that the evidence the ICO had in mind about whether there was a breach was no more than prima facie; and that the FOI request at issue did not concern raw data but private email exchanges.
Let's just say that's not quite the whole story. The following are excerpts from that letter of 29th January, from the ICO to UEA.
...the ICO has been alerted by the complainant and by information already in the public domain via the media, to a potential offence under section 77 of the Freedom of Information Act. The prima facie evidence from the published emails indicate an attempt to defeat disclosure by deleting information. It is hard to imagine more cogent prima facie evidence...In the event, the matter cannot be taken forward because of the statutory time limit.
To me it looks fairly clear that the ICO believes an offence to have been committed but the culprit has evaded justice because of the statute of limitations.
That's not quite the impression you get from the UEA submission is it?
And what about the statement that the information related to "private emails". I've read and reread the document. I've put it through OCR and searched the text. The word "private" does not appear in the document.
Oh dear.
I wonder who wrote the CRU sections of the submission, those sections that Sir Edward Acton has so carefully disassociated himself from?
Reader Comments (47)
Sir Edward's submission is purposefully misleading. In point of fact, it's not even trying to misdirect, it's just plain untrue. Off with his head.
Don't be surprised if he turns up at the inquiry with a paper or statement saying that no offence has been established.
I've believe that I've seen a copy of the statement from the ICO, which basically says what the news reports says it said.
And I've also seen a page (I think on UEA web page? Can't remember) saying that they got a response from the ICO agreeing that the offence had been proven, established or whatever. I imagine that UEA probably was able to get the ICO to say that in writing.
My suggestion is if such a paper exists, to see if it says "The ICO loves you, and knows you're innocent of all charges", or is more weasily worded.
SimonH,
steady now, I was challenging Frank last night to show me where AGW skeptics or agnostics had called for killing, even in jest...
I hate PC too, but let's not give ammunition to be used to distract from the subject of the BS coming from the true believers.
I still wonder if the original ICO announcement wasn't just a convenient way of avoiding a potentially embarrassing investigation.
Contempt of parliament
Any action taken by either a Member of Parliament or a stranger which obstructs or impedes either Parliament in the performance of its functions, or its Members or staff in the performance of their duties, is a contempt of Parliament. Examples of contempt include giving false evidence to a parliamentary committee, threatening a Member of Parliament, forgery of documents and attempting to bribe members. The Commons has the power to order anyone who has committed a contempt of Parliament to appear at the Bar of the House and to punish the offender.
From http://www.theyworkforyou.com/glossary/?gl=95
Seems clear to me.
If an FOIA request is not completed within the allotted time
frame, a crime has been committed…wait, unless the time
exceeds the statute of limitations and in that case, the FOIA
request never existed.
This has legal precedence, and goes all the way back to year
1998 and the Magna Bart Simpson.
Prima facie evidence is still just that: not tested. So Acton is right there. Since the ICOs opinion came about by reading a lot of stolen emails, the ICO looks like it got caught speaking out of turn and is now back-peddling.
Seems my suggestion that the UEA might have tried to get the ICO office to retract (or correct) their comments about breach of section 77, turned out to becorrect.
However, somewhat surprisingly, the ICO had enough balls to say no. Well done ICO and Graham Smith!
Details at http://wattsupwiththat.com/2010/02/25/uea-the-new-crimestoppers/ - including a PDF copy of the ICO's response to UEA's letter.
What would be fascinating would be to see UEA's letter to the ICO, but I don't think it's been published.
@bigcitylib
> the ICO looks like it got caught speaking out of turn and is now back-peddling.
No, the UEA tried to get the ICO to back peddle
But the ICO said no. See for yourself - http://wattsupwiththat.files.wordpress.com/2010/02/summers_uea_ico_20100129.pdf
> Prima facie evidence is still just that: not tested
In common law jurisdictions, including England, prime facie evidence is considered sufficient to prove an offence unless rebutted by other evidence.
What's the rebuttal to: Let's delete material to prevent disclosure?
As the ICO says in their letter - these are the exact words - "It is hard to imagine more cogent prima facie evidence".
In case, as well as "prima facie", you also don't know what "cogent" means, it means weighty or persuasive.
@Gilbert: The 29 Jan ICO letter, says another investigation (under section 50) is on going.
Copner,
Cogent prima facie evidence is still Prima facie. Not surprsing it wasn't rebutted, as nobody at the ICO contacted UEA and asked them for an explanation. If anyone's going to resign in what's to come, its likely to be Mr. Smith.
You write:
"What's the rebuttal to: Let's delete material to prevent disclosure?"
...that nobody actually did it?
Maybe it would have been more polite for Graham Smith, deputy ICO, to have contacted the university before issuing his initial statement to Mr Leake (Sunday Times journalist).
But the fact remains - that on January 29th **AFTER** Smith and the ICO had received UEA's response to the section 77 allegations (among other things) - and reached the conclusion NOT to back-peddle, NOT to withdraw the allegation, and NOT to weaken the allegation in any way whatsoever.
Now you can pay semantic games, about no court conviction under 77, and technically you'd be right because the case is never going to court.
But the bottom line is the ICO continued to believe there was a breach of section 77, even after he had received UEA's response.
Copner,
NOT to revise a statement, but to lament how that statement was misinterpreted (by Leake). Properly interpreted, the ICO statement doesn't say what you want it to, according to the ICO.
A fat file of the material in question, such as that produced by Mann when he was exonerated of the same allegation.
Frank,
Why should we take Mann's word?
We may find out more when the ICO appears before the Select Committee on Monday.
It seems UAE is not in the clear.
The ICO has formed the view that there was cogent evidence which would have warranted an investigation of the offence of destroying a record under S77 – this relates to Phil Jones personally – which cannot be pursued through the courts because it’s time barred. However, it is pursuing a determination under S50 whether “a request for information made by the complainant to a public authority has been dealt with in accordance with the requirements of Part I.” This relates to the conduct of UAE through it’s representatives, staff, including Phil Jones, FOIA officers, vice-chancellor – and relates probably to the strategy collectively agreed on to refuse certain requests. The ICO can make a finding that the procedures of the act were not followed and give an opinion whether an offence under S77 has been committed. This opinion may be the basis for a prosecution.
In this respect it should be noted that not all offences under S77 are time barred, the offences of blocking and concealing are continuing offences and time runs only when the blocking and concealing ceases. It may be that if there is a finding that UAE has blocked requests for information improperly, UAE may be prosecuted, though not necessarily any individual.
My take on this issue is that ICO informed the UEA that on the face of it there was evidence already in the public domain that UEA did not comply with the FOI Act. The ICO will further investigate over the next few months where UEA can offer an explanation to the accusations. If then found guilty the ICO issue an enforcement notice and practice recommendations giving the UEA time to address any issues. Any failure to comply with the ICO will lead to a contempt issue. The ICO seems pretty powerless by way of handing out punishment, its just a slapped wrist and don't do it again.
The letter from the ICO also says:
"I can confirm that the ICO will not be retracting the statement which was put out in my name in response to persistent enquiries from the Sunday Times journalist Mr Jonathan Leake. ... The statement was not inaccurate."
and that statement to the Sunday Times said:
“The legislation prevents us from taking any action but from looking at the emails it’s clear to us a breach has occurred.”
So Edward Acton's statement that "no breach of the law has been established" is an outright falsehood.
Re: bigcitylib
> "What's the rebuttal to: Let's delete material to prevent disclosure?"
>
>. .. .that nobody actually did it?
From 1212073451.txt
From 1228330629.txt Dec 3 2008
There is a revealing Q&A between John O' Sullivan and the UK chiefs of police organisation (ACPO), concerning the lack of charges under FOI at UEA.
http://www.climategate.com/exclusive-qa-on-climategate-with-britain-chief-police-officers#more-5066
John concludes with the following observations:
It is simply the duty of ACPO to advise the government that the Serious Fraud Office (SFO) as per the recommendations of the Roskill Report (1988) ought to be conducting this case, not Norfolk Police nor NDET.
The SFO is under the sway of that political appointee, the Attorney-General who in turn is accountable to Prime Minister, Gordon Brown. The British Government knows only too well that since the Criminal Justice Act 1987, the Serious Fraud Office is mandated responsibility for the investigation and prosecution of suspected cases of serious or complex fraud where £1 million or more is involved or in cases of multi-national jurisdiction (i.e. the Climategate scandal).
Prime Minister Brown knows the buck stops with him on this but he is so far having an easy ride and not being exposed for his own complicity in this scam. While the mainstream media is yet to pick up on this it is left to the blogosphere to pursue the matter. I will now be writing to the Attorney General, the Director of the SFO and the Chief Constable of Norfolk Police and I urge other British taxpayers who also feel ripped off to help keep the pressure up.
We must ensure that self-serving politicians like Gordon Brown cannot bury Climategate by, as I suspect, unjustly under-employing the powers of the police merely because we are in the run up to a general election this Spring.
***
On related FOI matters, did anyone else see the BBC4 "On Expenses" drama based on Heather Brooke's dogged pursuit of UKMP's expenses through FOI and refusal to be cowed by subsequent fob offs. It's worth a watch on iplayer as it has many parallels with the present fun and games.
I wonder what Heather is working on at the moment...
Following on from my earlier post, John O' Sullivan has furthermore posted an outline of how he sees the follow up legal steps, largely in the US, based on fraud. Interestingly he notes that Phil Jones and the UEA may get away with it as far as UK inquiries go, but that as he notes:
<<
Even though Professor Jones is a British climatologist employed at a UK university, he made this admission in the leaked CRU emails:
“I’m hoping that no-one there realizes I have a US DoE grant and have had this (with Tom W.) for the last 25 years.” [1120676865.txt ]
Thus Jones remains liable to extradition and may conceivably be convicted under both UK and US jurisdictions.
>>
The full article is worth a read, notably for his analysis of what he cites as the relevant legal precedents and also recently filed lawsuits in the US against the EPA. You can find it here:
http://www.climategate.com/beating-the-climategate-cover-up-the-next-legal-step
@bigcitylib:
> NOT to revise a statement, but to lament how that statement was misinterpreted (by Leake). Properly interpreted, the ICO statement doesn't say what you want it to, according to the ICO.
I think that's wrong.
The issues of Leake's writing - and the things that UEA wants the ICO to clarify - that UEA seems to be focused on is whether the breach is attributed to an individual rather than an institution (item 3), and whether a formal decision has been made (item 1).
But:
The ICO says in this letter (item 2) that there was a breach of section 77.
The ICO said in the original statement, that there was a breach of section 77.
And even UEA themselves agree that the ICO said there was a breach of section 77 - http://www.uea.ac.uk/mac/comm/media/press/CRUstatements/vcstatement - "The ICO's opinion that we had breached the terms of Section 77 is a source of grave concern to the University as we would always seek to comply with the terms of the Act. "
Now you can say that maybe some rebuttal evidence will turn up that will disprove the ICO's cogent prima facie evidence -- or you can say that responsibility seems to lie with individuals rather than the university (which seems to consistent with a possible position of UEA --see point 3 in 29 Jan ICO letter) -- but to pretend the ICO didn't say that in their view was a breach of section 77, is just bizarre..
@Drew:
Oh please
At most, Phil Jones is guilty of bad science, bad data handling, bending the evidence to suit his preconceptions, and breaches of the UK FOI legislation. While such activities, if proven, would be professional misconduct, most of them aren't crimes, let alone serious crimes.
There's no suggestion that he stole money to line his own pockets, or anything like that.
And there's no suggestion that he set out a deliberate course of deception to promote a theory that he himself knew to be untrue. Let alone did so for personal gain. Even if later turns out that the theory is wrong, his data sloppy, and his conclusion unsupportable - that still doesn't make him a criminal, let alone a serious criminal.
If the charges are proven: A fine, a reprimand, and if the very worst charges are eventually proven, losing his job and reputation, would be sufficient punishment.
Hi Copner
Thanks for your thoughts. I'm not a lawyer, so I bow to more considered and knowledgeable opinions. To me this is all a side show and a distraction from the fundamental issue of whether the science for ACO2GW stacks up or not. And I guess that's exactly what such enquiries are really designed to do.
In case I didn't make it clear, the above opinions are not my own, however, but those of John O' Sullivan, a legal advocate with experience litigating against government corruption in the U.S.
The point he makes is that as PJ admits in the cited email he is in receipt of US taxpayer funds in the form of grants. I think the issue is not whether he has personal material gain other than his continued employment, but rather that as a recipient of those funds he is required to act lawfully.
I personally have no confidence that anything useful will come out of the present official or any other "independent" enquiries.
But more to the point, I feel they're a red herring and irrelevant, as none are an investigation and test of the science as the credible basis for the most expensive and fundamentally important policy decisions of our time.
The scope of the legal process that John cites in his articles are far wider ranging, and potentially have much more bite, and that's why I wanted to bring his arguments about what to focus on to broader attention. Ultimately they may result in much more lasting damage to the AGW industry than anything going on in the UK at the moment.
@copner
I would just say that is a typical white collar, white middle class attitude to the episode. Essentially the higher financial value involved the less is the punishment.
I am not going to call Phil Jones a suspected criminal or even imply it. It is irrelevant to the overall picture.
However, he took the CRU ship into very dangerous political waters. Waters with trillions of dollars floating around on them. He did not have to do that. When you do that all bets are off.
And I hope it is a lesson to others in the scientific community, sail in these waters at your peril. If you do you better make sure everything is 'ship shape and Bristol fashion'. And, that when your escorts dive for cover, you have enough seamanship to sail on your own in very stormy waters. And, that you take advice on pilotage and seamanship. And, that your ships log is true reflection of your voyage.
Cap'n Jones had responsibilities like any other Captain.
I'm not a lawyer either Drew.
Two quick points:
1. I'd hate to be in a situation where scientists and academics who produce wrong conclusions, sloppy work, or even work that is seriously flawed because of biases and preconceptions are threatened with jail.
If that were to be the case, the prisons would be packed with academics, especially with people from humanities and some of the softer sciences, where clear data is not always available for drawing conclusions and inferences have to be made. Controversial topics in subjects such as social sciences (say studies into pornography or gun-control or youth crime) would be risky - produce a result contrary to the consensus, and you risk prison!
2. The fact that a senator is talking about prosecutions in public makes me think that nothing is likely to happen. It's poisoning the jury pool for starters. If there was a real threat of prosecution, they'd be questioned quietly by investigating authories - it wouldn't come out in public until these people were arrested or faced extradition warrants.
The fact that a senator tells me this is about grandstanding (maybe he's genuinely annoyed) and appealing to a core constituency. It won't win anybody over in the argument anymore than when the warmists tried to win people over to their side, by calling the skeptics holocaust deniers, flat-earthers or Nazis.
Copner,
No, in item 2) the ICO says there MAY have been a breach. Clearly he would not say that if the breach had been established. Pirma facie, and all that. And the UEA press release was issued, I think, before the letter linked to here, so before the matter was clarified.
And, Terry S, those emails you quote refer to McI's FOI requests, I think (2nd one does for sure). The ICO is worried about Holland's, so I don't know quite how they are pertinent. In any case, by understanding is that UEA says no deletions actually took place.
> I would just say that is a typical white collar, white middle class attitude to the episode.
I'm middle class, so you're half right about me. But you're half wrong too. (And I rarely wear shirts with collars).
I also think your characterisation is wrong. I personally think a person who steals money by white collar crime should be seriously punished.
But that isn't the allegation here. The core allegation (aside from the FOI stuff) is being a crappy scientist and making very expensive mistakes.
If you want a comparison - mine would be - Norman ERM Lamont, and Gordon Self-Our-Gold-Below-Value Brown, were both crappy politicians, and made very expensive mistakes. Neither needs to go to prison for it though - they just need to (a) be stopped, (b) lose their job.
> No, in item 2) the ICO says there MAY have been a breach.
In that place,I agree that it means probability or possibility, because it is used in the context of there being no formal conclusion, and the fact that the ICO is too late to prosecute in any case. So it's unproven breach.
But like I said, the same letter clearly doesn't retreat an inch on the fact that the ICO feels that there was a breach of section 77 (admittedly a breach that remains unproven), despite having received whatever the UEA's rebuttal was.
Copner,
Dude you're not making sense. The ICO is STILL investigating, as is made clear in the letter, even if they can't prosecute. They say MAY be in breach because, well, you can't really say WAS in breach before you conclude the investigation can you? And what they don't back down from is their origonal wording about a cogent prima facie case, which was misinterpreted by Mr. Leake to sound more definitye. They are not, in effect, saying UEA is in breach even though they can't prove it. That kind of statement would be pure madness.
BCL, what would be interesting would be to know if you think the data and the code should be made publicly available for download. All the rest is irrelevant.
@copner
I won't hold your lack of white collars wearing against you (neither do I.)
I tend to look at this from a different angle, so disagree with with your Brown/Lawson analogy. Ignoring the "Anyone who is capable of getting themselves made President should on no account be allowed to do the job", those were given the responsibility via the democratic process. Their Authority matched their Responsibility, we actually let these people waste billions with a 'glad and wiling heart'.
The whole Team had/have far too much Authority without the corresponding Responsibility. Groups or individuals in these positions are universally disliked and often feared (on the way up, but on the way down?) In large companies no one has more friendly greetings than the Advisor to the CEO, and is more despised. Often their Authority only comes from patronage, political or otherwise.
I have met people in these positions and they almost all universally have that same smug grin of Mann and Jones (in Jones' case, pre Climategate).
These people had power and I believe they abused that power. Whether it was intentional is immaterial. I do not care. I do not want my sons growing up where the phrase Carbon Criminal (like Capitalist-Roader, jew, or any other 'defect' epithets ) becomes a reality rather than the current scaremongering of eco-fascists (and my hobby is history and I see no reason that it could not happen.)
So I return to my Cap'n Jones analogy. He hit the iceberg and Celine Dion stopped singing (thank god.) Did anyone come to his aid? The unsinkable vessel of AGW has been holed below the waterline. What next? Fair inquiry?
Welcome to the real world of politics. In democracies Authority and Responsibility will try to reach equilibrium.
Frank "Short Skirt" O'Dwyer will not be commenting on this post. He's busy defending himself over at Lucia's
In the style of John Houghton, I might add
If we want good
environmentaleconomic and energy policies, we need adisasterthe right people to go to jail.(apologies in advance if I got the html wrong)
My point is until something like this happens, ie it becomes a truly mainstream story highlighted by serious actions and consequences, this is simply a non-event.
In case anyone should misunderstand me, I'm not calling for PJ to do hard labour. Although his work may be central to pro-AGW arguments, his value in the Big Carbon Money hierarchy is not. He would truly become the fall guy in that case, and that would not serve well anyone's cause.
Imho, PJ should simply answer professionally for any proven misconduct, for which personally I care not either way, and let his science stand the test that all good science must endure: reproducibility and predictions closely in line with observed reality. That is the price of being a scientist, and it's probably enough.
However, the wider case for fraud on an international scale amongst the Big Carbon Money participants could possibly bring about the "environmental disaster" that may change the game for ever, and which I think many of us on this blog feel is what is really required. As this is outside the scope of the present UK enquiries it's also possibly why so many of us are frustrated about their conduct.
The current enquiries are simply irrelevant to the bigger arguments over AGW driven spending of billions of our $ on 1) govt. propaganda, designed to drive 2) global C02 and energy taxation, and trillion$ annual spending on pointless, unproven mitigation and reparation costs.
The enquiries are ultimately trivial. The costs to the world are not.
@GrantB
Looking at that thread, if it was the Sicilian Mafia I think it would turn into a 500 year vendetta. Brutal stuff.
My viewpoint is very simple, climate 'scientists' ventured into areas far removed from their 4 o'clock tea meetings. There are consequences to that. Playing with the devil... Welcome to the real world.
This is just the tip of the icicle Jones is cannon fodder, sold his science and integrity for big funding. He may have been the ships captain but even captains follow orders. Dig deep enough and I think this trail will lead all the way back to Governments, the EU and the UN who else could orchestrate such a global con, who could silence the MSM, who funds the science, where did it all start decades ago and now. In resent times it has just snowballed out of control greed has lead to one lie after another, “exaggeration” is just the polite term. It’s not Big Oil its BIG GUV. Bugger the Cosa Nostra where’s Guy Fawkes when you need him?
Drew, I'm with you in that I would have no problem prosecuting people who turned dubious or unsupportable statements about AGW/alarmist meme into huge personal fortunes.
If somebody made a fortune by promoting (or shorting) a company's stock, using an equivalent number of blatantly false or unsupportable statement, they'd already be in jail and their fortune seized.
Hey lawyers,
Person A gets a FOIA request for specific emails.
Person A deletes emails to avoid responding to the FOIA request
Person A then is charged with a crime for deleting emails to avoid FOIA request
Person A then talks to sys admin and realizes that his emails still exist on the email server
Person A then produces the emails in question and says I never deleted them
Is person A guilty of deleting the emails?
Is person A guilty of lying about deleting emails?
Deleting emails and lying on not in themselves crimes AFAIK.
The crime is the attempt to conceal the information.
(my reading of the statute is the attempt does NOT have to be wholly or even partly successful in preventing disclosure - it is the attempt that is illegal, rather than the result). See for yourself
The text of paragraph 77 can be read here. Look at subsection 1 - http://www.cfoi.org.uk/pdf/foia2000.pdf
It reads (sorry for any typos):
any person to whom this subsection applies is guilty of an offence if he alters, defaces, blocks, erases, destroys or conceals any record held by the public authority, with the intention of preventing the disclosure by that authority of all, or any part, of the information to the communication of which the applicant would have been entitled.
So I would say: if you read this paragraph literally, it would even be arguable that evem if you only briefly attempted to block a legitimate FOI request, but then later complied yourself, within the time frame, you could still be guilty of an offence.
Eric Rasmussen's submission to the enquiry has some interesting points about the ability to prosecute, and what the non-prosecution might be really telling us:
http://www.publications.parliament.uk/pa/cm200910/cmselect/cmsctech/memo/climatedata/uc1602.htm
Seems to me the UEA is treading water in quicksand. Misinterpreting findings, misquoting people etc, in an effort to give the appearance that what went on at the CRU wasn't as bad as everyone knows it was. But at the end of the day they're just making fools out of themselves on both fronts. Leave it to "my-shit-doesn't-stink" academic types to make a bad situation worse rather than admit to something they all know they are guilty of.
Sadly all they are doing is compounding their own misery while not swaying public perception in the slightest....
Times covers it nicely...
Times ICO Piece
UEA's media management is trully awful. One step forward two steps back.
It cannot be good for a university to be constantly in the non-academic news all the time with contentious issues.
The techniques they used for promoting Climate Change do not work with this type of news.
The point about the ICO saying there is a prima facie case of a breech of s.77 is that it is not necessary for anyone to have actually deleted emails for there to be a breach of that section. All that is required is that someone actually proposed deleting emails for the purpose of avoiding an FOI request.
Oops! Should be "breach" not "breech" in the first instance.
UEA has released a copy of the letter to which the ICO responded.
Among other things, this should us to clarify what points 1 to 4 in the Jan 29 ICO letter
UEA's 29 Jan letter to ICO (to which Jan 29 ICOletter is a response):
http://www.uea.ac.uk/mac/comm/media/press/CRUstatements/Letter+to+Dep+Information+Commissioner
UEA's 1 Feb follow-up letter to ICO: http://www.uea.ac.uk/mac/comm/media/press/CRUstatements/Letter+2+to+Dep+Information+Commissioner
BTW: UEA's page on this is:
http://www.uea.ac.uk/mac/comm/media/press/CRUstatements/ICOcorrespondence
I notice that they're still going with "The existence or otherwise of prima facie evidence is insufficient to reach any conclusions about this matter"
I don't know why they put in "or otherwise", given the prima facie evidence does definitely exist (the question is how to interpret and weight it, not whether it exists at all).
There doesn’t seem to be many comments regarding the “private email” statement on earlier posts. I thought perhaps that it could be that Sir Edwards will be arguing that the prima facia evidence is based on private emails possibly stolen and therefore should not be presented as evidence.
Just a thought anyway.