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)
Were costs awarded? I do hope so, and in line with the barrister's!
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this is what i get
Congratulations to the noble information seekers - and a very interesting article!
Looks like Acton's sneaky 'hide the evidence in a police station' ruse has failed.
ps. CRU = Canine Rescue Unit (It was never clear why these people should be expressing themselves on matters climatological).
FOI request:
http://www.whatdotheyknow.com/request/keiller_v_ic_and_university_of_e
Jamspid...Not sure what you are drinking smoking but get on topic!!!!!!!
Well done to all involved and as David Holland said...They may yet appeal! My heart goes out to anyone else at the U.E.A. on other courses as they see the credence of their degrees being ruined by the C.R.U.! Imagine, you are on an engineering course, need the most modern equipment but the tutor say "sorry mate, the money has been thrown away by that Jones and his mob running models and is only by luck and a time delay he ain't doing time for an illegal act". Surely to heaven the whole lot should be hauled back to Parliament and put under oath this time and a real independent inquiry set up with instructions to read the bloody emails!
Congratulations to you both. Your tenacity seems to have paid off.
Just an aside. You say
Were counsel for UEA moonlighting climate scientists?
stopcpdotcom
That will be as welcome to them as the googleable 'Billy Connolly on the BBC Parkinson Show in 1980'
If the email is found and if it contains no caveats about the release of the data then the vice chancellor of UEA should consider his position - in other words he should resign. It is inconceivable that the UEA would have defended their case in the courts, using public money to hire very expensive barristers, without the vice chancellor's agreement. Any reasonably well-educated person (even a university vice-chancellor!) will be aware that cover-ups are often much more damaging than the original offence - the Watergate Scandal being probably the best known example.
Just a thought:
Although there is little excuse for such obstinate behaviour by UEA, we shouldn't make too much of its use of legal counsel in this matter nor should we speculate that this was done at great cost. Most institutions and businesses, for that matter, retain legal counsel under an ongoing retainer to deal with a variety of issues that arise and will use that counsel as a matter of course, its services having been paid for and budgeted in advance.
What amazes (read disgusts) me is that the legal representative can tell the court some clearly concocted cock and bull story about a discussion between Jones and Palmer and not get thrown into the slammer.
It is extraordinary that the vice-chancellor of any British university should throw his weight behind so obviously bogus a legal challenge, one clearly intended to intimidate, based not just on one lie but on a series of compounded lies. The whole process, moreover, funded by the taxpayer.
I have no doubt that even now Professor Edward Acton continues to congratulate himself on his superior command of the inner workings of a corruptible Establishment, of which he is self-evidently a supremely smug member.
His inevitable downfall should, accordingly, be relished all the more. I look forward to his squeals of self-justification and finger pointing.
On the other hand, the simultaneous demolition of Philip Jones should then be passed over in the silence appropriate to the reduction of any such nonentity.
Either way, both will have ample time to reflect on an obvious truth: lying never works.
Roy,
Its not just the Vice Chancellor fighting this battle. Just start to think of of all the faces that would have egg all over them. Just do a few network diagrams.
Lee,
The last time I crossed swords with UEA's counsel he was representing Ofcom and he did not win that one either.
Good news. From an email dated 15th January 2009
Somewhat ironic email choice by FOIA for that day. A good result, but I guess we need to wait and see how the UEA treats compliance. They don't seem to have a very good track record in obtaining independent contractors. If this one is as independent as the previous inquiries, they could find themselves in contempt.
Thank you for all that you are doing to get to the root of this scandal.
Regretfully, if the full facts are revealed I expect we will discover that the Climategate emails and documents were only the tip of a cancerous growth on government sciences that fluorished out of sight for decades before being partially exposed in Nov. 2009.
We really do need to know who the UEA's counsel is.....name and shame
lawyers4losers.con
Anoneumouse,
Its no secret. Its in the Decision. However, he is a professional doing a good professional job and I have no complaint against him. Even the the worst villains are entitled to the best representation in our system. It may not be perfect but it beats the rest.
UEA seems to have behaved the way you would expect a commercial organisation like News International to act.
Having said that they have to react to the advice given by their legal team who presumably thought they had a case and were not simply going through the motions to get an easy fee.
Classic Big Battalion approach. Intimidate and overwhelm the opposition and the tribunal alike by a show of numbers, hired-guns and institutional force. A price has to be paid. We can afford it if we lose but you, little guy, can not.
This is straight from the pages of Tobacco companies' legal strategy handbook.
An this is a university, an institution for public education. What a shame!
Argusfreak,
It was the Information Commissioner's Decision Notice that Don was appealing. He was happy to let the Tribunal decide on papers.
'the complete lack of evidence about anything resembling a coherent deletion/retention policy for emails.'
There is the get-out , 'its not possible becasue of past poor practice which we haven changed and we are sorry ' done and dusted.
As for Jones , you expect that outside of his own little world and without 'the Team ' covering his back he be about has effective as a chocolate tea pot.
"The Tribunal were rather disconcerted by the evidence adduced by the UEA on this issue. Jonathan Colam-French had almost no knowledge of the CRU's back-up system and was simply unable to answer several pertinent questions."
Clearly the tribunal were quite unimpressed. It must be unusual for a trubunal to be so forthrightly scathing about a witness.
Jonathan Colam-French is director of UEA central IT function and had nothing to do with the operation of CRU's backup system, although it was housed physically in the central IS machine room - as made clear from Muir Russel's interviews.
http://www.cce-review.org/evidence/UEA-CRU_IV3_IT_Final_Formal1.pdf
You'd have thought that either Colam-French would have got clued up a bit before appearing before the tribunal or that the UEA's legal team would have put forward someone who had actually been involved with the CRU back up system. Unless they thought it was actually to their advantage to have a witness who could not answer any questions.
Are we sure this isn't now a 'poisoned chalice'? Would UEA now hold up this case as an example of how the FOIa is cumbersome and expensive and that the ends DON'T justify the means? Might they have been deliberately obtuse knowing that the (eventual) email content is 'null and void' thereby strengthening the case AGIANST future FOI claims? I sincerely hope not.
"Murder will out"
-- Chaucer
genealogymaster
lucia has been having problems with spambots and cloudspace, which she has adopted to help her combat the hackers, is acting in a strange way. Wait awhile and try again, or else people who can still access her site can let her know that clo0udspace is being ultra-aggressive
knowing how much top legal firms charge, the compilation of as many documents as were thrown at Mr Keillor suggests something north of £10k.....money not spent on education this year!
It is a scandal.
Incredible. Jaw-dropping, So there really is a vestige of it left. Common sense. And even very occasionally still carries weight in litigation.
27. In relation to the third question at 16(3) above we ultimately concluded that
it was a matter of common-sense that information backed-up onto a backup
server in the control of UEA, but deleted from the computer on which
the original email was composed, was still ‘held’ by UEA. We considered
the counter-arguments to be over-technical.
Martin A, you suggested that "You'd have thought that (either) Colam-French would have got clued up a bit before appearing before the tribunal"
I would have thought so too, which is why I asked him (in court) whether he had consulted with colleagues before appearing at the tribunal.
He replied "No".
I suspect that he was a "sacrificial lamb" in this process, put there for the express purpose of keeping Jones out of the witness box where he would be asked questions under oath.
Congratulations to all - and best wishes for the further fights that lie ahead.
Puts me in mind of some words of Tom Denning, Master of the Rolls, deciding a case against a Secretary of State for Trade - "You may be high and mighty in the land, but the law of England is above you".
It all depends on having the hearing before an assiduous and fair Judge, of course.
I met a similar weight of opposition when trying to defend one of my daughters against a stupid leasehold claim. The matter appeared to me to be black-and-white on any understanding of the basics of contract law. The other side were obviously in the wrong, but they used expensive City solicitors and retained barristers - and several times tried the trick of bouncing us with hundreds of new pages of guff on the day of the hearing, even though the proper procedures required adequate notice to be given. They lost at the Leasehold Tribunal, they lost in front of the President of the Lands Tribunal who gave a 20 page judgment against them - but they still tried to take it up to the Court of Appeal. One step more and we would have been in the House of Lords !
I believe that all along their underlying threat was to smother my daughter with legal costs, indeed they told us as much. We pointed out that no costs are awarded against either party in such actions unless one party acts entirely unreasonably. But they continued to use "in terrorem" tactics, trying to overwhelm us with the sheer weight of paper, the endless flow of correspondence.
Fortunately, at an ex parte hearing before an Judge of the Court of Appeal they were refused leave to pursue the matter any further. Better yet - their barristers and solicitors were given a right rollicking by the judge for their own ignorance from Day 1 of Contract Law 101, and for their attempts over 2 years to bludgeon us into submission.
I retain my faith in English justice - and the result against the UEA is highly commendable. Don't let them grind you down - Nil Carborundum !
Many years ago, the first Pro Vice Chancellor of UEA was Dick Ross, an eminent economist, who went on to head the Central Policy Review Unit under Heath, Wilson and Callaghan, then on to the OECD. An extremely clever man - but a straightforward and decent man. 'Nuff said.
Very well done, Don and Dave, you did us proud!!
It took a lot of courage to pursue this particularly with the legal big guns ranged against you, an obvious attempt at intimidation.
We may need to watch out though that the Lords don't push through their amendment to the Protections of Freedoms Bill prior to UEA responding (they seem to have been given an inordinate amount of time before they need to provide any actual info.!)
http://www.bishop-hill.net/blog/2012/1/12/the-academy-wants-no-scrutiny.html
@geronimo
"Actually its flagship department is the Creative Writing department".
It may be prestigious in a certain sort of academic circle but I doubt it chucks that much into the university finances or has produced work on which UK and international government is basing far reaching policies.
Putting yourself in the VC's shoes and in an entirely hypothetical situation, given a choice of one or the other being fed to the wolves, which would it be?
The compromise position is that they vie for 1st = and were the department of creative literature to draw itself into a similar mess the university would be equally energetic on its part - not that anyone would care much, including the university.
Wow! Congratulations, and very well done, Don and David ... (and happy birthday to me ... best present I've received all day!)
If I hadn't read about it here, I would not be able to believe the verbal/legal/quasi-legal gymnastics in which CRU/UEA have engaged, in order to (you should pardon the expression!) sustain such an untenable and indefensible position. Their dances of distancing - and little "redefiniton" games - has no doubt taken them somewhere beyond the blue horizon (not to mention a step too far down the green-brick road!)
Alas, Poor Phil, we know him (all too) well. [sorry, Shakespeare!]
But I can't help wondering if 'the hand of Wallis has once again reached out'*** to help protect the wannabe saviours of the planet (and the continued funding of what some might call their incompetent endeavours)
*** [Sincere apologies to the late, great Canadian, Stan Rogers]
And I also can't help wondering if the "strategy" adopted by CRU/UEA (regardless of who might have advised them) was perhaps somewhat influenced by the Mannian "arguments" put forward in order to 'protest and protect' against disclosure of Mann's UVA emails.
Not sure how well this glorious (and well-deserved) decision would survive a transatlantic crossing, but I cannot imagine that the precedent set can be of much comfort (or joy) to Michael <how dare you question my hockey-stick> Mann;-)
P.S. Bish, the posting "anomalies" mentioned earlier in this thread (by someone whose name/nym I should remember but which, alas, escapes me) are exactly the same as those I've experienced [now posting via MSIE to see if same problem occurs]
I too would like to congratulate Mr. Keiller and Mr. Holland on their efforts and tenacity. Well done.
And I would also like to thank this Tribunal for not being another Oxborough style whitewashing crew. I must say, given what has happened to date, that surprises me more than anything.
There's hope.
Tax-payer funded BS (Bureaucratic Science) as practised by UEA (University of Education Aberrations) in the climate dept. should be subject to criminal investigation not FOI. I am sicker than SICK TO MY BACK TEETH of the WWCS (World Wide Climate Scam)
UEA's Counsel wittered on that they would have to go grovelling to the Police to get their eager hands on the emails and the Police may say "no". Poor dears!
In fact UEA already have the emails as evidenced by the fact they have already paid for them. See email correspondence, below.
I also have the copy of the invoice for £10,469.25, for “Extraction of Emails” sent to and paid for by UEA.
On 14/04/2010 17:16, "XXXXXX" wrote:
Dear Greg,
Just a heads up. The Review Team discussed this yesterday and we have made a
recommendation to the UEA Vice‐Chancellor (who in DPA terms owns this
information on behalf of the University) that Qinetiq should be asked to
proceed but just for three machines (those of Prof Jones, Prof Briffa and Dr
Osborn). We have also suggested hiring a (highly reputable) independent
forensic analyst to carry out a targeted search of this limited set of e‐mails
on behalf both of the University and the Review Team We await a response from
UEA...
From: XXXXX
Sent: 20 April 2010 13:50
To: XXXXXX
CC: ALASTAIRMUIRRUSSELL;
Subject: Qinetiq contract
Dear Greg,
Further to the e‐mail below, UEA have just confirmed that they would like to go
ahead, but only subject to the information being made available quickly to the
independent analyst. They would need to have the information from Qinetiq
(presumably on a portable hard disk) no later than next Monday 26th April.
As I suggested below, we would want Qinetiq to make available all of the e‐mails
held (sent, received, or otherwise stored) in the backups held of the PCs of just
three individuals. Those three individuals to be: Prof.
Phillip Jones, Prof. Keith Briffa and Dr. Tim Osbourn. These three are the
significant focus for the e‐mails already in the public domain.
Could you please confirm with Qinetiq that they can meet these requirements and the
timescale?
Don Keiller Jan 24, 2012 at 11:48 AM
Unless they have already deleted what the coppers let them have back then.
Maybe that explains the harshness of the judge's comment. He was probably mightily annoyed by being presented with a witness who had evidently diligently gone out of his way to avoid acquiring any information that might have have enabled him to respond to the tribunal's questions.
Had, instead, the UEA produced Mike Salmon, the CRU's own IT manager, who had been responsible for introducing the CRU's automated back up system, the answers might have been more informative.
'...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'.
What are the legal requirements for a perjury charge?
How difficult is it to defend?
Tony, why don't you ask Chris Huhne?
With any luck he will be looking to defend himself against "perverting the course of justice".
Pretty much like perjury.
Being the backup guy is often the lowliest position on an IT support team, a thankless task.
Doubtless Jonathan Colam-French, being the head of IT, probably had little regard for whoever it was, and consequently knew little about backup.
It wouldn't surprise me if the backup guy turned out to be RC.
viv evans : "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?"
Jones' written witness statement deleted by Jones as part of Jones' “normal email management procedures”, I presume.
Don,
IIRC a misleading statement made (repeated) when under oath a second time automatically/potentially brings perjury into play. From there it is 'very' difficult to avoid doing time.
But that is only where I live - where you are, the laws may be different.
So for someone who has issues with the truth/reality... problems may follow.
No doubt inspired by the difficulty Jones et. al. are experiencing with the pesky government information sharing laws, the Obama administration proposed changes to our Freedom of Information Act last March that would put political appointee bureaucrats in charge of what information gets released. Despite trying to slip the changes into the implementing regulations as "streamlining" they got caught and hopefully the proposed regulations will not be implemented. The proposed changes to can be read in the March 21, 2011 Federal Register:
http://www.gpo.gov/fdsys/pkg/FR-2011-03-21/pdf/2011-6473.pdf
It beggers the imagination that key actors under public investigation for possible wrong-doing may be systematically excused from testimony, particularly those also on public payroll.
"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."
says it all, really.
"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."
says it all, really.
I am curious as to why:(a) Prof. Jones was not the subject of an application that can be made to the Tribunal to issue a summons for him to attend the Tribunal; or (b) a request was not made of the Tribunal to call Prof. Jones. The Tribunal is 'inquisatorial' and has powers to compel witnesses. Both options appear to have been open to require him to say on oath what the email contained etc. Moreover, the recipients employer might be compelled to do so under comparable regulations in the resident jurisdiction?