Bishop Hill A major FOI victory
Jan 23, 2012 Climate: CRU Climate: Jones Climate: Surface FOI This post is a jointly written effort by myself and Don Keiller.
Readers may remember the Information Commissioner's ruling last year that UEA had to release the CRUTEM data sent by Phil Jones to Peter Webster at Georgia Tech. This had been requested by Jonathan Jones and Don Keiller.
This ruling was obviously very welcome, but in fact it was not the end of the story. UEA had put forward an argument that CRUTEM data was held under agreements with national meteorological services and could not therefore be disclosed to outsiders. Along with his request for the data, Keiller had therefore also requested the covering email that Phil Jones had sent to Webster, which should presumably contain caveats about reuse and disclosure. However, when the Information Commissioner ordered UEA to release the data, UEA's non-disclosure of the email was upheld, on the grounds that the information was, on the balance of probablilities, 'not held'.
However, by the time of the ICO's ruling, it was clear that CRU had its own backup arrangements - the CRUBACK3 server that was at the centre of the Climategate affair - and it was therefore fairly clear that the email did still exist. UEA were in essence trying to argue that since it was no longer on Phil Jones' hard drive, it was no longer legally 'held' for the purposes of the Environmental Information Regulations (EIR), regardless of its presence on the backup server. Keiller therefore decided to appeal the ICO's decision to the Information Tribunal. Firstly he had to provide new prima-facie evidence to support the appeal to an internal ICO Appeals Panel, who decide whether there are grounds for an appeal.
With the Appeals Panel having decided in Keiller’s favour the appeal was then considered by the “First-Tier Tribunal (Information Rights)”. Normally such appeals are dealt with by an exchange of written correspondence, but UEA decided that they wanted to call a witness, necessitating a full court hearing. This was no small step, since judges and barristers are involved and in the event of an unsuccessful appeal it is possible, in theory at least, to end up with a large bill for costs.
This was not the only obstacle placed in the way of the appeal. Parties are required to agree on an “open bundle” of documents to be provided as evidence for the Tribunal to consider. Here Dr. Keiller asked for sections of the Muir Russell Report and the minutes of the House of Commons Science and Technology Committee, which examined emails “leaked” from CRU. He also asked to include the letter to UEA from the Deputy Commissioner of the ICO which famously stated “The prima facie evidence from the published emails indicate an attempt to defeat disclosure by deleting information.”
All these publicly available documents were objected to by solicitors acting for UEA, on the grounds that they were “prejudicial”. In the end Keiller had to write directly to the Tribunal to get them admitted as evidence. This evidence proved crucial.
As the hearing approached it became increasingly clear that Keiller would be contesting not only UEA and the ICO, but a team of solicitors from a nationwide firm and a top London barrister. Help was needed. He contacted me for help, and I pointed him in the direction of David Holland, well known to readers of this blog, and something of an expert in such appeals. David kindly agreed to be a "MacKenzie friend", which allowed him to assist during the hearing and his help, before and during the hearing was invaluable. The hearing was held just before Christmas, with Keiller representing himself and UEA represented by a barrister.
On arriving in the courtroom, solicitors acting for UEA presented Keiller and Holland with a folder containing 384 pages of documents. Also present were the ICO’s representative, counsel for the ICO, counsel for UEA and senior management figures from UEA.
It is often said that a plan of battle fails on first contact with the enemy and so it proved here. On the basis of documents and arguments exchanged before the hearing, Keiller, with Holland’s help, had prepared a set of arguments and questions. However, the Judge started by saying that this was a complex case and that he wanted to keep focus by asking three specific questions. These questions were sequential, each dependent on success of the previous one; Keiller had to demonstrate that each question could, on the balance of probabilities, be answered in the affirmative. Failure on any one of them would mean failure of the appeal.
No pressure then.
The tribunal looked at three questions:
- Is it more probable than not that the email sent on or about 15 January 2009 by Professor Jones to Georgia Tech attaching datasets was backed up onto and retained on the Climate Research Unit’s (CRU’s) back-up server prior to this server being taken by the Police?
- Is it more probable than not that the e-mail contained ‘any instructions or stipulations accompanying the sending of datasets’?
- Is there a valid argument that a back-up of an e-mail retained after the original had been deleted from the computer on which it was composed is not ‘held’ for the purposes of the EIR?
The hearing started with Jonathan Colam-French (Director of Information System at UEA) providing evidence about the procedures in place to record, manage and dispose of staff emails. Unfortunately for UEA, the systems described by Mr Colam-French were not in place at the time Jones sent his email to Georgia Tech, a fact uncovered by the otherwise ineffective Muir Russell Report.
In their decision the Tribunal made some pointed remarks about UEA’s evidence, stating that:
The Tribunal were rather disconcerted by the evidence adduced by the UEA on [Question 1]. Jonathan Colam-French had almost no knowledge of the CRU’s back-up system and was simply unable to answer several pertinent questions...
and
...we noted the complete lack of evidence about anything resembling a coherent deletion/retention policy for emails.
On this basis, the tribunal reached their first ruling, namely that the email was more than probably still on the backup server.
On the second question - about the contents of the covering email - the tribunal was hampered by the fact that they were not able to address Phil Jones directly. Here, counsel for UEA reported on an alleged conversation between Jones and David Palmer (UEA Information Policy & Compliance Manager), which had in turn been relayed to Colam-French, who had in turn reported it to counsel for UEA. Dr. Keiller pointed out that this was “third-hand hearsay” and questioned why Jones was not present to provide this evidence directly or, indeed, why he had not provided the Tribunal with a signed witness statement, adding that UEA’s case was fatally flawed by the absence of Jones. The Judge agreed, saying that counsel for UEA were making “bold assertions”, but these were “unsupported by evidence”. It appears that UEA were keen that Jones should not appear on the witness stand, where he would be required to give evidence under oath. In fact it is noteworthy that, despite all the official “investigations”, Jones has never been required to answer questions under oath or provide a signed declaration.
In reaching their decision, the Tribunal’s starting point was that a covering e-mail was a rather obvious place to set out any caveats in relation to the attached datasets. The Tribunal also took into account that they heard no evidence as to what the relevant email did contain other than the reported assertion that Jones (who did not himself provide any evidence) had said that it didn’t contain anything of the sort. So although the Tribunal took into account the assertion that Jones had said that the caveats were discussed verbally only, they ultimately decided that it was more probable than not that the covering email did contain ‘instructions or stipulations’ relating to the attached datasets.
Two rulings issued, two wins to the appellant.
Finally then, to question of whether information on backup servers is 'held' for the purposes of EIR. Here UEA argued that, since Jones had deleted the email from his hard drive as part of his “normal email management procedures”, there was no requirement for them to search further. However, the tribunal were again unimpressed, stating in their decision:
“Whilst we can see some logic to this position, we noted that the purpose of back-up is precisely to ensure that a document is not lost; the lack of any coherent policy on retention and deletion of documents, and that had there been timeframes in such a policy, we would have expected these to be reflected in the back-up programs operated on the server. In these circumstances, it seemed more logical to us to take the view that if the email existed, it was still ‘held’ by UEA”.
A clean sweep then.
UEA are now required to approach the Police to see if they will provide a copy of the email in question, and to see if they or someone else will extract it for them. (As another aside, we might note that copies of Jones' emails and indeed those of Keith Briffa and Tim Osborn have already been provided to the Russell inquiry. I wonder what happened to those copies of the emails or if UEA also received a copy?).
So, the key outcome of this case is that a further precedent has been set. That precedent is that UEA’s refusal to release information on the grounds that under EIR Reg. 12(4)(a) – Information not held, is no longer valid. Backup servers have to be searched.
As the previous ICO ruling, which resulted in the release of the CRUTEM data, has already demonstrated that refusal under:
Reg. 12(4)(b) – Request is manifestly unreasonable
Reg. 12(5)(a) – Adverse effect on international relations
Reg. 12(5)(f) – Adverse effect on the person providing information
are not valid, it would appear that UEA have no legal means of refusing properly crafted information requests.
The full decision of the Tribunal is available (here)
Reader Comments (96)
Suppose this email can be found. Suppose it in fact contains no caveats about how the data can be used, no mention of agreements with various Met Offices. Where will that leave Jones and UEA?
No regular member of the public should be expected to have to go through all this aggravation. The current FOI laws and regulations are obviously unfit for purpose.
I wonder what this is costing the UEA?
UEA have a 100% failure rate with their appeals to the Information Commissioner. I can not find a single instance whereby the UEA's decision to withhold information has been upheld.
I don't know of any public body with a similar record.
PS. Every time I submit a comment I get a "The connection was reset ... Try Again" page. I never get any captcha to fill in and if I check the comments without hitting the "Try Again" button my comment appears after a minute or so.
mrsean2k,
In other words, what it is costing us. These people have no care for the common taxpayer, on whose largesse they subsist.
Well done once again to David Holland, as well as the direct protagonists. Would it be possible to FOI the cost to UEA of the solicitors and barristers in this unsuccessful attempt to hide their workings?
I wonder if the relevant email is somewhere in the encrypted bundle for which we have no key?
Perhaps FOIA can assist.
Does anyone know the cost of UEA's failed attempt to obey the law?
Are there really no penalties or 'corrective measures' that can be applied when a body like the UEA acts to frustrate the operation of the law?
Just a very small point without meaning to be pedantic: the term "council" is used throughout when it should be "counsel". You have to wonder why the UEA is spending so much money to avoid giving disclosure when they claim to be all above board. All they are doing is tarnishing the reputation of the University as a whole - for what? Time to jettison the bad apples.
Bunch of rank amateurs, more tax payer money wasted defending the indefensible. Wonder what the barrister advised before hand.
Oh what a tangled web we weave,
When first we practise to deceive!
Why should we supply you or anyone with copies of E-Mails, when all you want to do is prove that we have been economical with the truth.
Bravo Bish & Dr Keiller. And yep, it's "counsel" not 'council'.
[Ouch - thanks. Fixed]
Amazing.
UEA really have some things they want to keep hidden.
The judgment notes: "...the back-up server in question is now custody of Cambridgshire Police." Not the Norfolk plod?
A lot seems to hinge on "Whether the police are prepared to..."
MDGNN
...
Oh! what a tangled web we weave
When first we practice to deceive!
A Palmer too! No wonder why
I felt rebuked beneath his eye
For once, American law and English law agree regarding backup/archive files.
These decisions (release of data and now release of covering email) have shown the
lack of any legal basis for UEA’s refusal of FOI/EIR requests.
It is actually quite unusual for the Information Tribunal to overturn an ICO decision. Of the 30 or so decisions made between December 2 (2011) and January 17 (2012), excluding consent orders, only one other case, apart from mine, was decided in favour of the appellant. In the other case the tribunal only allowed the appeal "in part".
So what do we have here
When a party fails to perform at all, it is nonfeasance.
When a party performs the duty inadequately or poorly, it is misfeasance.
and then we have
Malfeasance which is used to denote outright sabotage which causes intentional damage.
This is an excellent result and raises the very big question of why UEA has gone to such inordinate lengths to prevent disclosure of information which we don't have any real proof exists at all.
Jones' absence, and the fact that getting him onto any form of witness stand under oath appears to be more difficult than the proverbial herding of cats, speaks volumes.
Perhaps someone would like to make sure that Lord May is aware of just what it is he is defending here and perhaps the Three Baronesses might also be persuaded that the problems with Freedom of Information legislation lie, not with those are forced to use that legislation but with those who are prepared to go to such lengths to prevent legitimate access.
Perhaps we should lobby our MPs to support a new review by the Science and Technology Committee.
Peter Stroud 12:04 -
I emailed Graham Stringer after the Climategate 2 emails were released; didn't even get a reply.
As Mike Jackson says, the key question seems to be why are the UEA going to such extraordinary lengths to block the disclosure of a seemingly straightforward covering e-mail. Just how much are they really hiding?
The ineptitude of the UEA's presentation of their 'case' is remarkable. For the credibility of Jonathan Colam-French to be shredded so easily, one has to wonder what UEA's legal counsel were thinking to put him forward in the first place. A sign of utter desparation by UEA, perhaps.
Is it FOI-able to find out how much UEA paid defending this piece of nonsense?
I would expect a long pause now, followed by the police saying one of the following:
1. We can't find it.
2. It's part of an ongoing investigation (Operation Long-grass) and therefore we can't release it.
3. What's an email?
"nationwide firm and a top London barrister"
So who were they?
This behaviour by organisations with a deep pocket to intimidate the "man-in-the-street" with a large team of legal people and vast quantities of last-minute documents is, in my experience, typical. We see it at public inquiries, where the locals are intimidated (not physically) by a large legal team of know-it-alls paid for by the developers (but ultimately paid by taxpayers). The tactic often comes adrift because of poor witnesses, as seen here by Colam-French, and aplication of simple common-sense and honesty by the man-in-the-street.
One thing is certain; this will have cost UEA a fortune. They are clearly desperate to prevent the machinations of Jones and the CRU from becoming public knowledge.
Extract from Oral Evidence Taken before the Science and Technology Committee on Wednesday 27 October 2010.
'Q124 Stephen Mosley: Moving slightly wider, what changes have you actually introduced then at CRU to restore confidence in its scientists, their publications and the way in which they interact with the wider academic community?
Professor Edward Acton: In terms of restoring confidence, the critical thing is to have review after review after review to establish that they have found no shred of evidence that should shake confidence in their science. In terms of their integration, we have drawn them rather closer into the rest of the School of Environmental Sciences to ensure that all processes are run as they should be, notably FOI ones, that, were there any kind of repeat of that, they are dealt with absolutely as they should be and that there are none of the errors either of commission or omission that may have happened in the past.
On the front of statistics, we are encouraging that they draw more closely on some of our professional statisticians and we may well also be investing in further posts in that area. Trevor, I don't know what you would add?
Professor Trevor Davies: We are also investing in posts to help CRU ensure that it's data archive is efficient—that all of the previous versions of data series are in a readily accessible form so that when requests do come through for data series or for meta data as supporting data they will be more readily accessible and available than they have been hitherto.'
Promises, promises.
The underlying motive is to keep "all" of the contents of the server held by the police off limits to public scrutiny. Once breached, then access to all e-mails could follow. The latter is what UEA wants to prevent. With FOIA hanging over them with a threat to release all of the files, why doesn't UEA just give up the ship? Jones & Co. have become a major liability to the reputation of UEA.
An excellent result indeed. Don Keiller, Jonathan Jones and David Holland deserve the grateful thanks of all those who will benefit from this decision (i.e. pretty well everybody except those who profit from AGW-induced grants and subsidies) for their sustained effort and courage in going all the way to obtain this victory.
Let us hope that they will bring this decision to the notice of MPs and peers, especially those who are deeply misinformed (and misinforming) about AGW.
Philip Bratby,
"One thing is certain; this will have cost UEA a fortune. They are clearly desperate to prevent the machinations of Jones and the CRU from becoming public knowledge."
#######
Looked at purely from the point of view of the university, fearful that it's flagship department is likely to take a mighty fall with an inevitable impact on the university as a whole, it's not surprising they will spend any amount of money to stop that.
Of course, the university authorities must have looked into the matter and formed a view. If they were confident there was nothing to cover up, they'd hardly be spending so much keeping things under cover to pursue a matter of principle, they'd just release the requested information.
Assuming the information wasn't compromising, just releasing it would be the best and cheapest way to silence criticism. Going through these contortions gives the impression that there is something to hide.
Jockdownsouth @ 12:33 PM on Jan 23, 2012
"I emailed Graham Stringer after the Climategate 2 emails were released; didn't even get a reply."
Is he your MP?
"Don't write to other MPs, only to your own. MPs aren't required even to read letters from non-constituents and some MPs can get quite uppity about it."
http://wiki.openrightsgroup.org/wiki/Letter_writing
You would only employ a huge legal team at such expense if you were going to hide the truth and not reveal it.
Congratulations to all concerned, for what was obviously a lot of work in the face of some pretty heavyweight opposition....
Maybe they are trying to hide the [eventual] decline of funding? :)
Doesn't look good for them does it? Mind you, I doubt they really care about how they look simply because no one from the main stream media is covering these goings on.
One would have thought that a new science editor might be interested in making sure this is covered wouldn't you think? Wonder if Shuckman will have someone cover this story?
Mailman
Robert Christopher 1:53 pm -
"Don't write to other MPs, only to your own."
Point taken. I did explain to him that I wasn't one of his constituents, but had been impressed by his input to the HOC Select Committee investigation into Climategate.
My own MP, Francis Maude, does reply to everything I send him, even though most of it probably isn't what he wants to hear. :-)
I don't believe that UEA are defending the release of the single email I asked for- it may well be innocuous. What they were attempting to defend against is access and therefore scrutiny of other emails on the backup server. We have already seen a glimpse of what is there via the “leaks”.
They were attempting to prevent a precedent being set for legal access- and failed.
"...fearful that it's flagship department is likely to take a mighty fall..."
Actually its flagship department is the Creative Writing department. Although having seen the emails it's clear that Jones, Briffa etc. have spent a couple of semestas in that department.
UEA's manifest "malfeasance" in this matter raises the question: What in fact are they so intent on hiding, to the point of incurring actual liability for obstruction-of-justice regarding FOIA statutes?
First up, revealing UEA's extraordinarily corrupt database manipulations will put finis to any pretense of objective, rational scientific inquiry. Second, identifying the who-what-where-when-why of such total fabrications will outline not merely a complicit group of insiders but a literal conspiracy to obtain public monies under false pretenses in furtherance of an extreme partisan agenda. Finally, having exposed the egregious falsehoods propagated by specific individuals, plus their settled modus operandi in so doing, documents will not only render the Green Gang vulnerable to prosecution but ensure that no such willful abuses can recur.
For AGW catastrophists, full data-disclosure plus identifiable miscreants plus ongoing preventive measures will absolutely derail the gravy-train. After literally hundreds of billions in resources siphoned to this wastrel scam per a "depraved indifference" to all human costs, no penalties in consequence will be too severe.
+
So that mighty barrister from London, for which the UEA must have shelled out some serious money, wasn't able to present even a written witness statement from Phil Jones?
One would think he did tell the UEA people that not having such statement, especially with Phil Jones not appearing on the witness stand, would be detrimental to their cause.
So why did the UEA basically give up on this tribunal?
What has Phil Jones got on the UEA that they cover for him so assiduously?
http://www.guardian.co.uk/environment/2011/jul/29/flat-screen-tv-electricity
GOT A QUESTION FOR THE ALL CLEVERGLOGS ON HERE
Does incresing a persons standard of living decrease their carbon foot print?
Flatscreen telly use less energy than old cathode ray tube tellys
The new Ford Econectic has a 1.1 litre engine but has the power of a 1.6
A new Electrolux machines have better motors and heateRs than ann old old one less power
Modern housing and renovation new double glazing new central heating insulation new wiring better roofs guttering etc etc need less repairs Less carbon
Laptops Ipads and Iphones have replace old stack desktop PCs no printers and scanners less power
In the developing world India Cina Brazil Vietnam etc give economic development instead of peasantry
They have comsumer goods and hospitals instead of hundreds of kids because of high infant mortallity
If im right comsumerism and economic growth is the way to reduce the overall carbon footprint
The Guardian reading smug sanctimonius tree huggers we stuffed their THEIR MORAL ARGUMENT
That backup issue...?
I find it strange that it had went as far as appeal.
Otherwise all someone has to do to prevent disclosure is ensure the email is "backed up", then delete it. Then they could actually have read only access to the backup without a care in the world.
The Judge was correct here. Seems strange that a court ruling is required for such an obvious "workaround".
If you do not keep backups then so be it. BUT If you keep a backup it must be for a purpose. It is not some esoterical exercise in data movement.
Congratulations to all involved especially Don Keiller and David Holland.
If my understanding is correct, UEA will now more or less have been advised to do is to to repatriate all of the emails currently only available on the server held by the police, because from now on, every single request covering emails from that period will require them to search backup as well before they can say that the correspondence is "not held" and a succession of requests to the constabulary will cost a fortune (not that that has necessarily deterred them from any action in the past). This is of course exactly the sort of scrutiny they had been hoping to avoid...
There must also be some outstanding appeals which could be affected by this decision?
Viv clever barristers make the best case they can. Clearly this clever barrister thought there would be nothing added to his case by having Jones as a witness, especially when I suppose that witness could be questioned by the other side. How these tribunals work I don;t know, but can someone put forward a written statement and not have it challenged? Would someone want to put forward a statement in a quasi-legal setting, which might well be a pack of lies? I am certain any barrister, aware of his own professional standing, would not dream of so advising a client. And suppose Jones could have put forward some kind of 'sworn statement'. Surely, if it turned out to be - ahem - less than the whole truth - he would be so deep in it all the Muirs and Actons in the world would not be able to save his neck. Would he want to chance that? No, Phil staying at home was the best tactic all round - even if it might seem a little bit odd that the play was performed without the star.
Congratulations Don and thanks for your kind words.
I think the reason UEA fought this one and threw so much resource at it, is as others have stated. They fear more disclosures being ordered by the Commissioner. On 22 October 2010 one of the items of information that I asked UEA for was all the information within the scope of FOI_08-23 and FOI_08-31. That request is still in the hands of Commissioner. Do not forget UEA could still appeal.
How long before somebody raises a FOI request to reveal ALL emails (proudly boasted of by Phil Jones as) having been deleted which are currently available on backup.
http://en.wikipedia.org/wiki/Bradley_Manning
Being a climate sceptic is not illegal YET
Hacking someone else Emails IS
So whose the UEA hacker
Whose got a reason to do it
Whose got the means to do
Why do it To sabbotage the Copenhagen talks
Because of the damaging financail impact of carbon reduction targets or cause alround embarassment
Whose got the means to do it
MI6 CIA KGB Chinese Secret intelligance
All UK non US world Email traffic passes through RAF Menbury Hill and GCHQ
Indirectly or directly they all have access
But they wouldnt do it
They already know the science is flawed and Clamate Change is burden round thier neck
And every world govenment has never kept to Kyoto anyway so why should they embarrass themselfs and undermine their own authority .Climate change has become a major plank in the new world order
And if a national govenment had done it would the UK govenment really be ordering the East Anglia police be investiging knowing how much embarrassment it cause
So was it a Gary Mackinnon climate sceptic computor hacker
If it was wouldnt they have sorted through all the Emails in the first place
And we only got 2 juicey titbits "the trick is"and "hide the decline"
And If it was a sceptic he would have been caught by now with an Old Bailey show trial
Does anybody on here with that kind of knowledge really want to spend the next eight years with David Norris or Gary Dobson as a cellmate Proberly not
So the hacker must be inside the UEA
Perfect Bradley Manning type someone subborinate very junior with a grudge disillusioned very angry
not very confident Dosent quite fit in but very intelligent but not recognised
Exactly like Bradley Manning bullied at school bullied in the army wants to be Rambo but stuck behind a desk Hes got a small flash drive in his USB listening and singing happily away to Lady Gaga and all the time hes loading every file that passes his way labbelled secret onto it
And what did Bradley Manning get 75 years in a federal pen and more hits on Youtube than Susan Boyle and an entry on wilkipedia
ALL FOR WHAT
The pilot of an A10 Apache helicopter opening up his 50 calibre on a group of Iraqi insurgents in Bagdad on their way to commit yet another atrosity taking out an Aljerzeerer new crew (colateral damage)imbedded with the insurgents in the process
Then machine gunning their accomplices and their kid that have come to rescue them and then finally finishing off all the wounded
Wow that has made me really depressed
So would the UEA hacker kindley make themself known
Save us all a load of trouble
Let's face it, UEA has more to lose than most and so is prepared to throw everything it has to stop disclosure. When the climate change scam is finally and totally exposed, the CRU will be seen to have played a pivotal role and UEA will be seen as the organisation behind CRU.
Geronimo:
I always thought that CRU was an acronym for Creative wRiting Unit.
Does anyone know if there is a problem with JoNova's site and lucia's? I can't access either of them. Its not my computer I can access the internet fine.
No problem accessing either site:
http://joannenova.com.au/
http://rankexploits.com/musings/