This is a guest post by Don Keiller.
As many readers at Bishop Hill are aware I won a “major FOI victory” over UEA last December.
One might be forgiven for thinking that the Tribunal Decision would have been the end of the matter. However UEA and their increasingly rich lawyers had other ideas. Is it simply coincidence that Mills & Reeve are building shiny new offices here in Cambridge?
What follows is, by necessity, a considerably foreshortened summary. The total correspondence between, myself, the Tribunal Judge, Mills & Reeve and the Information Commissioner’s Office (ICO) comes to over 40 pages. To make this story easier to follow, quotations from emails/letters are in italic for those sent to me, with my responses in bold.
Following the Tribunal Decision the ICO contacted all parties informing them that they had 28 days to make an appeal.
“Under Rules 41 and 42 of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 you may apply for the Tribunal’s decision to be set aside or for permission to appeal against the decision. An application to set aside or for permission to appeal must be received in writing by the First-tier Tribunal (Information Rights) Team within 28 days of the date of this notice.”
Knowing UEA I fully expected them to appeal the Decision, but 28 days came and went. The first indication that all was not well was when I received an email from Mills & Reeve on 19 March 2012. Ten days after the 49 days the Tribunal Judgement had given UEA to respond.
Dear Sirs. We continue to act on behalf of the University of East Anglia in respect of the above matter. We attach a letter for the Tribunal's urgent consideration.
There is then quite a bit more, largely irrelevant, legal waffle before they get to the crux of the matter.
The cost of the independent contractor may be in excess of £25,000, which the University considers would be disproportionate and manifestly unreasonable. Given the significant use of public funds that the searches will entail and the University’s fiduciary duties as a charity to account for its expenditure, please would the Tribunal confirm as soon as possible that it requires the University to instruct HP to proceed with its searches on the terms above, or whether the University is permitted to serve a Refusal Notice on the basis of the cost of compliance.
So the University is trying to claim that it is too expensive to carry out a search (using Public funds, I might add!!). Neither should we forget that UEA has had no qualms about throwing £1000s at their lawyers to frustrate legitimate F.O.I. requests. I wonder whether the “University’s fiduciary duties as a charity” fessed up to this?
One day later I received an email from the First-tier Tribunals (Information Rights) Team Leader which stated:
Dear Parties,
Please note in the absence of the Tribunal Judge who ruled on this particular case I have referred the matter to the Principal Judge for instruction.
Concerned that the new Judge would be unaware of UEA’s somewhat chequered history with respect to complying with FOI requests, I emailed the First-tier Tribunal.
As the appellant in this matter, I believe that I should also be able to respond to this letter, before the Judge makes a decision, so that I can provide some balance to the claims being made about the technical difficulties, time and expense that UEA are alleging.
In this connection I would note that U.E.A. is almost certainly in possession of copies of the emails in question, having commissioned Qinetiq to extract them, within a short time frame, to meet the requirements of the Muir Russell enquiry.
In effect there is no need to search "multiple back-ups of 60 machines", on the backup server, as alleged, rather just three pen drives containing the emails extracted from said server associated with the computers of the researchers (including Professor Jones) in question. UEA has already paid Norfolk Constabulary £10,469.25 for this service and the pen drives remain in UEA's possession.
Finally I note that UEA were unconcerned about the time and expense incurred when employing a national firm of solicitors and a top-ranked barrister in an attempt to frustrate a legitimate F.O.I. request.
My email resulted in an additional email from UEA’s solicitors.
We refer the Tribunal Judge to the work of Professor Peter Sommers who was instructed by the Muir Russell Review Team to look at the back up server held by the Norfolk Constabulary. A copy of Professor Sommers' report is available at http://www.cce-review.org/evidence/Report%20on%20email%20extraction.pdf
on the Climate Change Independent Review website.
In his report dated 17 May 2010, Professor Sommers sets out his terms of reference, notes the extraction of data from the back up server by Qinetiq and comments on the difficulties of analysing the emails on the back up server. We are instructed that the University is not in possession of the three thumb drives containing the data extracted from the back up server by Qinetiq.
Here UEA are trying to overplay the technical difficulties associated with email extraction and also claim they no longer possess the pen drives produced for Muir Russell. Clearly a further reply was needed.
I am aware of the report produced by Professor Sommer, however his report was based on the requirements of the Muir Russell Review where a much wider extraction and analysis of all emails, for the 3 researchers in question, was needed and highlighted the difficulties associated with such a broad and systematic analysis.
The precise purpose of this search was described by the Government’s Chief Scientific Advisor, Professor Sir John Beddington. In evidence to the House of Commons Committee on Science and Technology, given on 1 March 2010, he stated: “Muir Russell is going to be doing a detailed and comprehensive study, he is going to look at emails in context”.
The key term is “in context” as this requires not only that each individual email is extracted, but also that it is placed in order with other emails from that particular line of correspondence. I have no doubt that this is a monumental task, but contrast it with the request in this case, which is for a single email, sent on a defined date, 15th January, 2009. This latter fact is made clear by “Climategate” 1320.txt in which Professor Jones states “Dave, I sent some of the station data to a Jun Jian at Georgia Tech on 15 Jan 2009”.
Accordingly I argue that no “exceptional method of searching by the University” is required to meet the Tribunal’s Decision (EA/2011/0152).
Furthermore I am surprised to hear that UEA has informed its solicitors that “the University is not in possession of the three thumb drives containing the data extracted from the back up server by Qinetiq”. This begs the obvious question of what has happened to these thumb drives that were specifically obtained for the Muir Russell Review and owned by the University for Data Protection. I find it incredible that emails, relevant to a Parliamentary enquiry and an ongoing Police investigation, are no longer in the possession of the University. Can UEA confirm that they are not being held, on behalf of UEA, by a third party?
Finally to confirm that the relevant email is not still in the possession of UEA, or Professor Jones, I hereby ask the Tribunal to instruct UEA to submit a sworn affidavit, from Professor Jones, confirming that he has never altered, defaced, blocked, erased, destroyed, or concealed any record held by UEA, the public authority where he is an employee, with the intention of preventing the disclosure by that authority of all, or any part, of the information to which the applicant would have been entitled. Neither does he still retain in his possession, in electronic, or other format, the email sent to Jun Jian at Georgia Tech on 15 Jan 2009.
The last paragraph is a highly speculative “long-shot”, but wouldn’t it be good to try and put Professor Jones who has been described by James Delingpole as “disgraced, FOI-breaching, email-deleting, scientific-method abusing” on the spot?
The reply was absolute silence, so on 20 April 2012 I sent a further email reminding UEA of the Tribunal Decision.
The Substituted Decision Notice (EA/2011/0152) required that:
Within 70 days of the date of this judgement UEA are to report to the Tribunal and the Appellant the outcome of the enquiries listed and are to take all practical steps to either:
a. Recover a copy of the back-up server or
b. Arrange the interrogation of the back-up server or
c. Arrange for an independent contractor to inspect the back-up server, as the case may be.
I would wish to know what progress has been made with regard to each of these requirements.
Mills & Reeve replied dismissively the very same day.
Dear Dr Keiller
By Mills & Reeve's letter dated 19 March 2012, to which you were copied electronically, the University confirmed the status of its enquiries of the Norfolk Constabulary as required pursuant to paragraph 2 of the substituted Decision Notice dated 18 January 2012. As at today's date, we await the Tribunal's confirmation of the University's obligations pursuant to the Tribunal's decision and our letter of 19 March.
However the Information Tribunal did not see things in quite the way UEA might have hoped, because on the 23rd. March they sent this letter.
I have now considered the written representations submitted on behalf of UEA and by Dr Keiller. Having looked at the Regulations governing the conduct of Tribunal proceedings I cannot see that any of them admit the possibility of the type of refinement of the substituted Decision Notice (SDN) now being sought by UEA. UEA were given an opportunity at the relevant time to make representations as to the terms of the SDN and did not seek to introduce any element in relation to capping costs at this particular stage. I do not believe that the Tribunal has the power to do that now. It seems to me that UEA's options are either to comply with the SDN or seek to appeal (out of time). I cannot see that there are any other options available.
I would also take this opportunity of reminding the parties that enforcement of a SDN is a matter for the Information Commissioner and not the FTT.
Game set and match. However little did I know how crucial the last sentence of this Judgement would become in UEA’s future attempts to frustrate the Tribunal’s Decision.
There then followed a bit of back pedalling by Mills & Reeve in their email of the 26th. March.
We confirm that the purpose of our letter dated 19 March 2012 was not to seek an order of the Tribunal under Part 4 of the Rules, but to instead seek the Tribunal's direction (pursuant to Rule 2; namely the requirement on the Tribunal to give effect to the overriding objective to, amongst other things, deal with cases "...in ways which are proportionate to ... the anticipated costs...") on the manner in which it had intended the parties to implement its substituted decision notice of 18 January 2012.
We confirm that UEA has now instructed the independent contractor (HP) to proceed with the searches of the scope identified in our letter of 19 March 2012 as an exceptional case.
In accordance with paragraph 4 of the Tribunal's substituted decision notice of 18 January 2012, within 20 days of the completion of such interrogation by HP, UEA will report to the Tribunal and the appellant the result of those enquiries confirming the existence or non-existence of the email and confirming whether it will be disclosed or whether the University intends to rely on any alternative exemption.
Again note the final paragraph. UEA and their lawyers are still looking for some minute detail to wriggle out of complying with the Tribunal’s Decision. Hence my reply.
I note the submission by Mill & Reeve on behalf of the University of East Anglia.
I am pleased that the University has instructed the independent contractor (HP) to proceed with the searches and I await the outcome of these searches.
I also note the caveats and will respond accordingly should this prove necessary.
Neither did the Tribunal Judge like UEA’s latest caveats and responded the very same day.
The Tribunal Judge has considered the email from Mills & Reeves of 26 April. The Tribunal Judge's firm view is that the judgement issued in these proceedings concluded the proceedings and the Tribunal consequently has no power to issuing Directions post-judgement. To suggest otherwise is to suggest that there is a power to vary a judgement outside of Part 4 of the 2009 Regulations and outside appealing the judgment. If any party is going to seek post-judgement Directions such an exceptional application will have to be supported by very clear authority that the Tribunal has such a power.
There then followed a further long silence until on 12 June 2012, when I received a short covering letter from Mills & Reeve, plus a report from HP Enterprise Security Services titled: “Email Investigation for UEA – Case name Black Grouse” detailing the search they had undertaken for UEA and requesting that I, as recipient:
“Agrees to maintain such information in confidence and to not reproduce or otherwise disclose this information to any person outside the individual(s) or entity directly responsible for evaluation of its contents”.
Furthermore
“All information in this report is provided in confidence. In addition to the confidentiality of the information, the content of this report may be commercially sensitive. Any disclosure of this report would significantly damage HP commercial interests because the company has invested considerable time, effort and know-how into the University of East Anglia’s project, in which it aims to differentiate itself from its competitors.”
Oh dear!
Given that I cannot divulge any of the information in the above report, under pain of prosecution, I will have to rely on hearsay evidence, taken from my subsequent correspondence with Mills & Reeve, to shed light on its dark and secret content.
Sirs, I note the receipt of your email sent Tue 12/06/2012 12:02 attaching a letter to the First-tier Tribunal (Information Rights) and a copy of HP Enterprise Security Services Limited's report, dated 1st. June 2012, which concludes as follows:
A total of twenty nine thousand and ninety two (29,092) emails were identified bearing a 'Sent' date between 01 January 2009 and 31 January 2009 (across all backups). Following a de-duplication process, one thousand two hundred and fifty five (1,255) of these were identified as being unique. Further filtering based on the 'Sent' person identity of 'p.jones@uea.ac.uk', and included a recipient name bearing '@gatech.edu', showed no emails present."
Accordingly, UEA is unable to provide the information sought by Dr Keiller in his request dated 14 August 2009, namely; "A copy of any instructions or stipulations accompanying the transmission of data to Peter Webster and/or any other person at Georgia Tech".
Whilst I appreciate the work that has gone into this search, unfortunately the parameters under which this search was undertaken were fundamentally flawed.
Apparently HP Enterprise Security Services were working using the search criteria set out by Mr. Brian Summers (Registrar & Secretary, University of East Anglia) to identify:
• Copies of any emails sent from Prof. Phil Jones' UEA email account, i.e. with sent from address containing "p.jones@uea.ac.uk"; and
• sent to a Georgia tech email account, i.e. with sent to (or CC) address containing "@gatech.edu"; in the time period
• between 1 January 2009 and 31 January 2009.
It is not at all surprising that this search for a recipient name bearing
'@gatech.edu', showed no emails present. This is because the recipient name '@gatech.edu' was not the correct search target.
In fact the correct email address of Professor Peter Webster is ‘pjw@eas.gatech.edu’. This can be confirmed at Georgia Tech’s staff directory;
http://www.gatech.edu/directories/index.html?index=0&name=Webster%2CPeter
I find it astonishing after all this time that such a basic and completely avoidable error could have been made.
Accordingly I insist that the search is repeated, this time using the correct target parameter, namely “@eas.gatech.edu”.
Essentially UEA was doing everything in its power to prevent a successful search for the requested email, whilst giving the superficial appearance of compliance. Unfortunately the Tribunal Judge now washed his hands of the matter.
The Tribunal Judge acknowledges receipt of the email letter and report from UEA and the response from Dr Keiller. However the Tribunal Judge wishes to emphasise again that any issues relating to the enforcement of the Substituted Decision Notice must be addressed to the Commissioner and not to the Tribunal. No further correspondence in relation to this matter should be submitted to the Tribunal.
So off I went, cap in hand, back to the ICO. The same ICO, I note, that has found repeatedly in UEA’s favour, on F.O.I. matters, only to have their “judgment” overturned on appeal.
It is clear from the recent submissions by Mills and Reeve, on behalf of UEA, that the search for the email, conducted by HP Enterprise Security Services, as required by the Substituted Decision Notice (Case No. EA/2011/0152), was fundamentally flawed, as an incorrect search parameter, "@gatech.edu", rather than "@eas.gatech.edu" was used (see my email of 12 June 2012 16:14 for full details).
Accordingly I would wish to know what action the Commissioner intends to take to ensure (correct) enforcement of the Substituted Decision Notice?
There then followed a lengthy exchange of correspondence with Mills & Reeve, culminating in this request.
You state that:
"HP has confirmed that the search terms it used whilst conducting the investigation included "gatech.edu". HP has informed the University that it had noticed the use of "eas.gatech.edu" and therefore considered it appropriate to use a search term that would include these addresses also”.
Given this statement I have examined HP's report very carefully.
At no point in the report provided by HP does it refer to the use of a search parameter "eas.gatech.edu", nor does it state that any alternative search parameter, other than "@gatech.edu" was employed. Furthermore it does not state explicitly, or implicitly, that any alternative search parameter, or "wildcard" target parameter, was employed in their search.
If I am to have any confidence in the scope and stringency of the search process conducted by HP Enterprise Security Services, on behalf of UEA, I will require a written and signed statement from Mr. XXXXXX (Senior Forensic Consultant) confirming the use of the recipient name search parameter "@eas.gatech.edu", in the aforementioned search.
Furthermore the precise date of the requested email is known. Moreover it is known to UEA and that an additional named person " Jun Jian" was the intended recipient of the email. This is stated clearly in the transcript of the email below.
http://www.ecowho.com/foia.php?file=1320.txt&search=Jun+Jian+at+Georgia+Tech
I find it surprising that Mr. Brian Summers did not request HP to conduct the search in this more precise manner.
Accordingly to have confidence that the search for this email is conducted properly, using the relevant target parameters, I request a further search for this email using the precise date, "15 Jan 2009" and also for the intended recipient "Jun Jian".
There are no prizes for guessing why UEA did not take this particular route when it commissioned its “search”.
The reply from Mills & Reeve, sent on July 2nd. was short and sweet.
We acknowledge your email of 28 June 2012.
The University has complied with the substituted decision notice of the Tribunal dated 18 January 2012 and proposes to take no further steps.
So 166 days after the Tribunal Decision, which required UEA to search for the email “sent by Prof Jones to Georgia Tech on or about 15 January 2009”, the forces supporting disgraced, FOI-breaching, email-deleting, scientific-method abusing people appeared to have won the day.
See what happens in Part 2!