Bishop Hill Does pre-emptive deletion get round the EIR?
Sep 7, 2011 FOI This is a guest post by David Holland.
Two recent Decision Notices appear to uphold the idea, popular with some climate scientists, that pre-emptive deletion of information gets round the Environmental Information Regulations. The first relates to University of East Anglia and the email to which Phil Jones attached the CRUTEM data he sent to Georgia Tech. The second relates to the University of Edinburgh and the Russell Review correspondence, all of which was deleted by the University very soon after the Review Report was released. This was well before we learnt all about Geoffrey Boulton's editing of my evidence submission, and Graham Stringer saying the Review was beyond parody.
The first is being appealed by someone else, but I want to seek advice from any real or armchair lawyers on the second one that I plan to appeal. I have previously had experience of the Information Tribunal, the procedures for which are well explained on the Internet, but I have not yet found the equivalent information for Scotland, where appeals are heard by the Court of Session. I have emailed the only address I can see on the web for the Court but have not had a reply yet.
In particular does anyone know if there is a form upon which to submit an appeal; is there a filing fee; and is it customary for those appealing Decision Notices to have costs awarded against them if they lose or can one obtain protection against costs in cases of great public interest?
Reader Comments (34)
We would all welcome pre-emptive disclosure - but perhaps in the second line is meant pre-emptive deletion.
Fixed!
Bishop
Have a chat with a solicitor knowledgeable in UK copyright law. As I understand it, any document you as a private person create is automatically under copyright in the UK as it is in the US. You do not need to have the copyright notice at all. It is only required if you have a registered copyright which is a different issue.
However, assuming that you do have a valid copyright for your submission, you also have moral rights which is taken seriously in the UK. Basically, nobody can edit, change or modify your work (i.e. submission) and in so doing change the intent or "moral message" of your work without your permission. Thus, if in your opinion Geoffrey Boulton did modify your submission in such a manner without your permission, you may well have legal recourse. Again, only a solicitor knowledgeable in the field can tell you what you actually can or can not do, but it is well worth looking into.
Don.. it's a guest post from David ;o)
Re Phil Jones's apparently deleted cover email. All legal help gratefully received.
Both UEA and the Information Commissioner have employed solicitors to defend their case.
It is hard work ploughing through legal documents and producing one of your own when;
a) you do not have a legal background
b) you have a ful time job
c) you have 3 young children to take care of.
Re Cameron,
Thanks for pointing out my typo and thanks Bishop for putting it right.
Re Don Pablo,
Copyright was something I had not thought of, but I will now.
Not only was it a breach of my copyright but as we know, both from what Muir Russell told the Commons Select Committee and what UEA replied to my FOIA request, it was done deliberately to fraudulently "pass off" what Boulton sent to UEA, and what UEA responded to, as being my submission. In addition errors in law the Scottish Information Commissioner has erred in stating
The most significant evidence was not published until she same day as the Report.
David
s84 of the Copyrights, Designs and Patents Act may be your answer:
http://www.legislation.gov.uk/ukpga/1988/48/section/84
If only the one person by the name of Graham Stringer could grow a pair! The only person on the committee with a scientific background did nothing to further the cause of science. Hell! These current politicians really are they dregs!
Stringer is not worthy of his position on the committee, in my opinion! The AGW garbage needs someone of real commitment to stand above the trenches to rattle some throats! There are a couple that try but most toe the party line of the IPCC!
@David Holland
If you need help with a filing fee etc, let us know.
Messenger: I second that
Pete H: I wrote a personal letter to each member of the HoC Science and Technology Committee (11 in all) back on May 21st in response to the Government's response to HoC S&T report "The Reviews into the University of East Anglia’s Climatic Research Unit’s e-mails". Now I know MPs have long summer holidays at the taxpayer's expense, so 3 months is not a long wait, but guess how many responses I have had so far? Remember "they work for you". Hint, it is <1.
Messenger and Philip,
Thank you for your kind offers. Unless it it ridiculous I can manage the filing fee. What I can not entertain, should I lose, is the costs of the army of solicitors and barristers that might be deployed against me. In the Information Tribunal I would not have that risk or at least have it only to vanishingly small extent. Hence my question concerning costs in the Court of Session.
Bishop, thank you for reference. Copyright is indeed another important line of argument .
As Don Keiller has joined the thread, perhaps I might expand the range of questions we seek answers to.
Both Decision Notices rely upon others, which they cite, that are entirely related to the FOIA and in part rely upon "the appropriate limit" to the cost and effort that the FOIA provides for. There is no similar limit in the EIR. We shall also be arguing that EIR has a presumption of disclosure and that the "direct effect" of the Aarhus Convention and the European Directive 2003/4/EC impose additional duties on public authorities that are not provided for in the FOIA.
In signing the Convention the UK undertook to
and to ensure that
The Directive requires European Law to be consistent with Aarhus.
Taken together I believe these two Aarhus undertakings impose a strict condition, overarching the FIOA, on upon all deletions of information held by public authorities, or held on their behalf. This is that, before any information held by a public authority is deleted, it must first establish if is “environmental”. If so it must then establish if the information is relevant to the public authority’s functions. If that is the case then information can not be deleted until it is no longer relevant.
The issue then would be at what time would Jones' email or the Russell Review correspondence become irrelevant to the functions of the public authority in question. I think preserving information to assist any enquiry into the probity of the actions of a public authority must be an implicit function and the time scales for retention very long. Parliament, the Courts, the Revenue and the Police keep everything for a very long time.
The actions of both Universities could be subject to judicial review and and should preserve all relevant information at least until the ordinary time scales for such actions are past. In the case of Edinburgh the deletion was within days of the release of Report which they helped write.
Are there any devils’ advocates out there to pick some holes in these propositions?
I would contribute a couple of thousand to your legal costs (above Messenger and Philip). Retired or not, prosperous or not, about this I feel strongly. Contact me at:
LoveLead-[dash]-denier-at-yahoo.co-[dot]-uk
Read '-[dash]-' as '-'
and '-dot-' and '-at-' (obviously substituted) similarly.
My last should have been addressed directly to David Holland and, obviously, for precise consistency, it should be:
LoveLead-[dash]-denier-[at]-yahoo.co-[dot]-uk
and
'-[dot]-' and '-[at]-'
I joke not - this is a serious offer.
Denier,
Many thanks for you generous offer. At this stage I am looking for procedural advice rather than money and you should in any case be aware of the dangers of contributing to legal costs. It is my suspicion that you can not limit your liability if you make any contribution that enables an action that would otherwise not proceed.
However, in ratifying the Aarhus Convention, the UK agreed that
and that
What I am looking for is any information that indicates that costs will not be awarded in normal circumstances against appellants to the Court of Session in Freedom of Information appeals. In the absence of such information I would like to see an example of a petition for protection against costs.
As David has said - the Decision Notices rely upon others, which they cite, that are entirely related to the FOIA.
My initial request to UEA was dealt with, by UEA, on the basis of EIR.
Similarly the Decision notice (FER0280033-linked above) confirms the information requested was "Environmental" under the definition provided by regulation 2(1) of the EIR.
The Commissioner accepts that Professor Jones deleted the covering email from his own PC, stating that "there was no overarching UEA-wide retention policy or schedule regarding such information. The member of staff concerned routinely deleted emails on a periodic basis"
The point here is "routine deletion" as part of policy is very different from premptive deletion as apparently practicised by Professor Jones.
For some reason the ICO seem to have forgot the contents of a previous letter they sent to UEA which stated:
"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."
Given this, it is perverse for the ICO to accept UEA's story, let alone be defending it through the Courts
David,
You might want to read this.
Terry,
Thanks for this. It looks like what I need. I will read it carefully in the morning!
We are at an amazing juncture in the history of democratic institutions when individuals such as you find the need, and receive the help of, citizen-scientists and citizen-lawyers in safeguarding their legal rights as defined by law and social practice. The climate debate/debacle has demonstrated on no uncertain terms that we must take our own measures to protect what is important to us and our families, and to defend ourselves against those who would abuse our freedoms and finances in order to further their own social agendas, personal gain or assuage their guilt at being (for the most part) white and comfortably bourgeois.
Orwell thought the pressure to conform would come from on top, as his experiences on the Continent of the '30s suggested. Turns out the pressure to conform really is from the upper-middle, those with the wealth to care less, and the social conscience to pretend they know better than the little people below them.
David Holland and whoever else.
While it is permissible for, let's say, a newspaper editor to remove sections of a letter-to-the-editor that are not pertinent to the issues being discussed, the editor may not edit it so as to change the intent of the writer with regard to the issues being addressed. For example, should one write: "On may third, I did not kill my wife." And should the editor remove "not", the entire meaning of the sentence is reversed. This is an very extreme example of moral rights -- not to mention a few other issues.
The term "moral rights" is a translation of the French term "droit moral," and refers not to "morals" as advocated by the religious right, but rather to the ability of authors to control the eventual fate of their works. This most definitely includes the intent of what the writer meant to say.
While Moral Rights are downplayed in the US, they are generally rigorously applied by UK courts, or at least have been in the past. However, just what is covered and not covered by moral rights can be subtle and really requires the experience solicitor who is familiar with the pertinent case law. As a publisher, I am keenly aware of the US law -- which is weak -- but have no idea what your particular case may or may not include, what you wrote, what was done to it and what changes in meaning or intent may have occurred.
But if you can show that they changed what you wrote without your permission in such a way as to substantially change your intent and meaning, or merely make you laughable (a favorite left wing trick in the US) you may well have cause for a suit.
Have fun, but unless you find pro bono legal advice, it might cost a bit.
Mr Holland
Thank you for your responses, both in these comments and by e-mail. I choose this method of responding in the interests of preserving my anonymity (about which I am obsessive!)
I had intended a simple donation to what I consider a good cause. As the son, brother and uncle of (different) solicitors, I am only too well aware of the inference of unlimited liability for costs which might conceivably be awarded. You may well be correct in your understanding, and I thank you for your concern.
You have, in any case, my best wishes (and that cannot, surely, create further liability!)
I can't help thinking that it would be productive to seek an undertaking from the counter-parties to not pursue "expenses" (apparently Scots' legalese for costs).
If they refuse to give it, make that fact public. If they do, there is a significant increase in peace of mind.
At the least, it won't cost much more than a stamp to ask.
Don Pablo,
Thank you for your thoughts. I am sure you recall that you were one of the first of BH's readers to offer to assist me to get the Russell Review to publish my evidence submission. With others you tried to remove all excuse for not publishing it but when you had finished Russell said on 16 April 2010
But of course, just before the Report itself was published, Russell did publish, in Briffa and Osborn's evidence those parts that suited the Review. Briffa and Osborn were supposedly responding to an "annex" not published at the time which Edinburgh's Boulton described thus
Your example of omitting the word "not" is very apt. With just one exception Russell, (or Boulton or whoever actually did it) did editing entirely by omission and almost three quarters was omitted. The exception was to capitalise a letter to disguise the fact that the start of a sentence was omitted.
Seven paragraph breaks were omitted, six of which were to disguise the significant one from which a pair of inverted comas were also removed to allow Briffa to argue that two separate IPCC rules laid down for citing unpublished papers were in fact just one that was not internally consistent. Then an entire paragraph was omitted. The key evidence in it was Climategate email 1141180962.txt. In it Eugene Wahl told Stephen Schneider that he thought his paper had missed one of the two deadline rules. He wrote
Having omitted the "smoking gun" from the little of my evidence that they did show, Briffa and Osborn then claimed that there was no deadline for unpublished papers to be "in press" and IPCC authors could do as they pleased. Needless to say the Review never put to UEA my evidence as to why Jones wrote
Then in October 2010 Russell told the Commons Select Committee
Clearly Russell further misled the Commons Committee allowing it to be thought that the Review had sent my submission to UEA as was implied by the email from Boulton, that Briffa and Osborn were responding to and published in their evidence. However, in November we learnt that far more was omitted from what Boulton sent to Briffa and UEA as good as admitted that it was to make it be thought that my submission had been properly considered by the Russell Review. UEA wrote
In reality the Review carefully avoided examining the allegations but sought to make it look as if they had. Then they deleted all the Review correspondence from the Edinburgh servers in July before we found out what had been done. I have responded at some length for the benefit of any new readers who may not appreciate how outrageous a travesty the Russell Review was and why the the Scottish Information Commissioner's Decision must be challenged, or the FOIA and EIR are impotent against deliberate deletion of information
Cheap whitewash will turn rancid and stink, after a time.
It is amazing that AGW is such a weak and brittle movement that covering up the truth and ignoring evidence is so important to sustaining its power in the public square.
Don Pablo, I assume you meant droit d'auteur(s) as opposed to droit moral, but the basic message is accurate.
Off the top of my head, section 80, subsections 1 through 3 of the Copyright, Designs and patent Act (1998) would probably be the best place to start, as they deal specifically with "...derogatory treatment of work..."
Will have a bit of a dig later, but am now distracted by event 15 of the World Championship of Online Poker and the fact that my new e-cigarette has just arrived courtesy of a neighbour who's actually in when the post arrives.
Willful deletion of information you suspect would be subject to FOIA laws? If so, I believe that is a crime in the US.
Mark
No, StevenW, it is "droit moral" and refers to not only authors but other artists as well. It is a French concept. You cannot buy a painting or other art work, deface it and then put it on display. The artist can sue you even though you paid for it. The artist still has the moral rights to the work.
The actual part of the moral rights in question as under the Berne convention would be "integrity". There are three or four other "moral rights" including paternity and attribution. Moral rights of a copyright are separate from economic rights. In Europe, one can sell the publication rights (economic) but not the moral rights. Only death can separate you from it. Given that, in Europe it common for publishers to get the author to sign a statement that they will not enforce those rights. I would NEVER sign such an agreement.
I doubt David Holland signed such an agreement. And David you do have your copies of the material sent to you as well as a copy of the original statement you sent in and can show that the "published" version is materially different. You do not need their emails, although it would help, to show that they materially changed your intent.
However, I would run it by a knowledgeable solicitor first. The example I gave was a very extreme and clear-cut case. What happened to your submission is a bit more "subtle" and open to argument whether it as substantial or not. Deletion of whole paragraphs without indication (typically with ellipses ... or other clear indication,) can easily be construed as intent to change the authors intent in such a way as to misrepresent his true intent. It is commonly referred to as "quoted out of context". This appears to have happened to you.
Moral rights are seriously enforced in UK, unlike the US. And unless they can show that the redacted material was actually extraneous to your point, they could have a problem. Having seen and worked on your original version, it was a bit strident, and potentially offensive to some, but they should have indicated that they edited with ellipses and not blended it into a new document.
While I was still publishing others work, I insisted that they sign off on the final version to be published before publishing it for this very reason. Even thought moral rights are fairly weakly held in the US, they are still there. So unless you signed off on their changes, they may have a serious problem in the UK. They would have one even in the US without the author's written permission.
Knowing you, you will be charging in like a enraged bull in a china shop. Have fun. You might actually get them to pay for their perfidy. But do talk to a solicitor first, one who specializes in literary rights. While your submission may not be a great novel, it is a written work and thus under literally right law. As far as I know -- and I can be wrong -- there is no exemptions to Moral Rights for a governmental or quasi-governmental organization. You may have given away your publication rights by submitting your document, but your moral rights to the copyrighted material (which it is automatically under the 1988 UK copyright law) are still yours. They have not been ceded unless you signed an agreement doing so.
Don Pablo,
After a little checking I am pretty sure you are right about Russell's breach of my rights in respect of my submission. Interestingly it is yet another case of scientists not knowing when they are being helped. From the outset the Review wanted to be be sure my allegations and analysis of the evidence for them in the Climategate emails did not appear in the record of of their review. They did not publish Boulton's version and had Briffa done as Boulton asked we would not be having this discussion. But such is the arrogance of these warmers that Briffa and Osborn (or someone else) had to name me and state
Had they not mentioned my name (which Boulton carefully avoided), cited verbatim, put back the references, paragraph numbers and all but the critical omitted paragraph break, I suspect I might have no case. However, the October Select Committee would not so easily have been fobbed of by Russell's assertion that my submission had been properly dealt with.
Be this as it may, does any of this give me the opportunity to force the Russell Review to publish in full my submission redacting openly only what they can really justify? What I am thinking is that my submission is undoubtedly environmental information and Aarhus grants me rights to justice in environmental matters which might well be an argument for the Court of Session in weighing up the public interest.
David Holland
Be this as it may, does any of this give me the opportunity to force the Russell Review to publish in full my submission redacting openly only what they can really justify?
I am not a lawyer or a solicitor, and I surely do not know British law, so you need to seek legal advice about this. What I am is a publisher (at least was) and so know the ins and outs of copyright law fairly well. What you are dealing with is a civil law suit. You would have to sue whomever with regard to your moral rights issues and should you prevail, the question of restitution then comes up. You can ask for monetary damages and/or redress by actions. The latter includes publishing corrections and retractions. I think that that is a way for you to go explore. Tell them: "Give me a million quid, or print the following!". If the judge agrees, then it will happen.
You are right. Had they not mentioned you or your submissions at all, you would have no case. However, f###ing with your submission was a breech of your literary moral rights and that opened all sorts of doors for you.
If you have a strong enough case, they will settle out of court as a court case will drag their ermine trimmed robes through the mud. However, to be taken seriously, you need a nasty solicitor snarling at them to get their attention. Otherwise they will simply ignore you.
Any one know a good pro bono lawyer or a firm that would work on a no success no fee basis?
David - are you aware of these people?:
http://www.barprobono.org.uk/
http://www.barprobono.org.uk/case_examples.html
I had a constructive discussion with them in the past, though I didn't pursue.
Sorry - should have included this one too:
http://lawworks.org.uk/about-us
Dear Mr Holland,
Can I suggest that you seek the advice of the Campaign for Freedom of Information, and more particularly its Scottish "chapter" - see www.cfoi.org.uk/scotland.html for contact details.
The CFOI's "Short Guide to the Freedom of Information Act and Other New Access Rights" published in January 2005, says this:
"Can the Commissioner’s decisions be challenged?
There is a right of appeal against the Commissioners’ decisions:
Under the Scottish FOI Act or EIRs the only right of appeal against the Commissioner’s decisions is to the Court of Session on a point of law.
An appeal on a point of law means you can only challenge the decision on limited grounds, for example, if you believe that the law has been misinterpreted, a serious factual error has been made or the decision is one which no reasonable person could have reached."
It says nothing about Costs (or Expenses in Scotland), but a call to the CFOI might well answer your questions and put you in touch with members of the public who have already gone down this road.
Try talking to Heather Brooke - she seems to get things done in the FOI field with minimal (no?) resources. His Grace mentioned her in a recent post.
heather-[at]-heatherbrooke-[dot]-org
She knows and loves some of those we know and love:
http://heatherbrooke.org/2011/we-are-not-at-war-with-oceania/
Not Banned, Cassio and Denier,
Thanks for the advice. I will be following up your suggestions. I am aware that an appeal to Court of Session is said to be only allowable on a point of law and mine will be. However, the Court should to take into account the relevant, significant and easily provable error that exist in the DN as well the fundamental errors in law.