This is a guest post by Don Keiller.
At the end of Part 1, your “Big-Oil” funded, shadowy, conspirator was reeling from the righteous blows of the Freedom of Information loving UEA and its downtrodden ally, Mills & Reeve. But “Big Oil” never admits defeat, not even in the face of “overwhelming consensus.
So the next sneaky strike was electronically launched…
As before emails/letters sent to me are in italic, my responses in bold
I note your statement that, in your opinion "The University has complied with the substituted decision notice of the Tribunal dated 18 January 2012 and proposes to take no further steps".
However I do not concur with your opinion in this matter.
My view is that UEA, quite deliberately, supplied HP Enterprise Security Services with an incorrect search parameter to ensure the failure to find the email that I requested and which the Tribunal required you to make a reasonable search for. In short UEA have not complied with the Tribunal's substituted decision notice and I intend to revisit this matter with the Information Commissioner.
The response from the all-powerful Commissioner was swift and devastating:
Having reviewed the matter, the Commissioner is satisfied that an adequate search has been carried out and that therefore the substituted decision notice has been complied with.
So once again, the ICO had sided with UEA. Strange behaviour, indeed, from an organisation that on the 22nd December 2010, required UEA to sign a commitment to improve the way it responded to FOI requests!
Given that the ICO’s past judgement on matters concerning UEA and FOI have proved fallible when tested in open court, your plucky FOI seeker, amply funded by the usual suspects, reached for the “nuclear option”.
Sir. I am writing to express my profound disagreement with your decision that “the Commissioner is satisfied that an adequate search has been carried out and that therefore the substituted decision notice has been complied with”.
Throughout this whole affair, UEA has acted in a way that has been contemptuous of the FOIA and EIR, seeking at all times to delay and obfuscate the ICO, the Tribunal and the appellant in their lawful requests.
This has culminated in misleading information supplied to HP Enterprise Security Services, designed to ensure that any search would fail.
I have repeatedly stated what the correct search parameters should be and have been repeatedly ignored by UEA in this matter. It is disturbing that the ICO appears to support UEA’s policy of misdirection.
Accordingly I intend to mount an appeal against your decision that "the substituted decision notice has been complied with” and ask that you inform me as to the correct procedure to mount such an appeal.
Then came the 4th of July.
There would be no right of appeal back to the Tribunal. Your only other option would be to apply for a judicial review of the Commissioner’s decision. However, whilst the Commissioner is not satisfied at present that the search was inadequate, if you are able to provide the Commissioner with more detailed arguments as to why you believe that the substituted decision notice has not been complied with the Commissioner would be prepared to reconsider his position.
Was there a glimmer of hope here, a seed of doubt in the almighty Commissioner?
A massive frontal assault was launched.
Dear Sir, it is my understanding from your email of 03/07/2012 that the “Commissioner is satisfied that an adequate search has been carried out and that therefore the substituted decision notice has been complied with”.
However in response to my email of Wed 04/07/2012, in which I expressed my disagreement with this decision, your response stated that was I to provide the Commissioner with more detailed arguments as to why I believed that the substituted decision notice has not been complied with, the Commissioner would be prepared to reconsider his position. My (abridged) detailed submission follows.
The key requirement of the Substituted Decision Notice, FER0280033, is absolutely clear:
Whether the police are prepared to provide UEA with a copy or mirror of the data stored on the CRU’s back-up server so that UEA may establish the existence of and recover the email sent by Prof Jones to Georgia Tech on or about 15 January 2009.
UEA confirmed that on 14 February 2012 that the University initiated enquiries of the Norfolk Constabulary as to whether it would be prepared to cooperate in this matter. As a result of these enquiries Norfolk Constabulary confirmed that it would be willing to allow an independent expert to search the back-up server.
On 12/06/2012 Mills & Reeve sent an email attaching a report from HP Enterprise Security Services detailing the search parameters set out by Mr. Brian Summers (Registrar & Secretary, University of East Anglia) that the search was 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.
On receipt of this email and attached report, I replied that the search parameter “@gatech.edu” was not the correct email recipient address for Georgia Tech., rather that it should be “@eas.gatech.edu”.
This is my first point of contention that any search to “establish the existence of and recover the email sent by Prof Jones to Georgia Tech on or about 15 January 2009”, as required in the substituted Decision Notice (FER0280033), would necessarily fail as an incorrect search parameter was used.
My contention is confirmed by the Investigation Summary from HP Enterprise Security Services report which stated that:
“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."
Mills & Reeve responded, reporting an alleged conversation that UEA had with HP Enterprise Security Services:
“HP confirmed that the search terms it used whilst conducting the investigation included "@gatech.edu". Here it is important to note that whilst HP Enterprise Security Services confirm the use of “@gatech.edu” they do not confirm that the search term included “@eas.gatech.edu”.
In reply I sent a further email where I noted that at no point in its written report did HP state explicitly, or implicitly, that any additional or alternative recipient name search parameter other than "@gatech.edu” was employed in their search. At this point I also requested that if I was to have any confidence in the scope and stringency of the search process, conducted by HP Enterprise Security Services on behalf of UEA, I would require a written, signed statement from the author of the report, Mr XXXXXX (Senior Forensic Consultant), confirming the use, or otherwise, of the recipient name search parameter "@eas.gatech.edu", in the aforementioned search. To date no such confirmatory statement has been provided.
This is my second point of contention. That both UEA and the Commissioner now expect me to accept Mills & Reeve’s hearsay report of an alleged conversation that UEA had with HP Enterprise Security Services that their search included the correct parameter (@eas.gatech.edu), despite the fact that HP Enterprise Security Services written report does not support this alleged conversation, either explicitly, or implicitly.
Finally there is well-documented evidence which has been available for some considerable time as to the exact recipient and transmission date of the email that I requested and which is the subject of the Decision Notice (FER0280033). Moreover it is clear that both UEA and Mills & Reeve are fully aware of this evidence because;
a) It was in the “Open Bundle” of evidence presented by Mills & Reeve at the Tribunal hearing on Tuesday 13th January 2011. In this connection I have attached scanned copies of the “Open Bundle 2 Coversheet” and scanned copies of pages 348 (paragraph 15) and 364 (bottom half) from this bundle of evidence.
b) On 14 June 2012 I sent an email to Mills & Reeve reminding them of this evidence, quoting an email sent by Professor Jones on 26th. June 2009, which specifically referred to the email that is the subject of my request and the Decision Notice (FER0280033).
This is my third point of contention. Namely throughout the period from the Tribunal case to date, both UEA and their solicitors, Mills & Reeve, have known with absolute certainty both the name of the primary recipient (Jun Jian) of the requested email, together with its date of sending (15 January 2009).
It is therefore perverse that UEA should specifically instruct for a search to be made not employing those parameters most likely to provide a definitive answer to the requirement in Decision Notice FER0280033, namely “that UEA may establish the existence of and recover the email sent by Prof Jones to Georgia Tech on or about 15 January 2009.”
Indeed the search parameters suggested by UEA appear to be specifically designed to fail to find the aforementioned email. Hence an adequate search has not been carried out and therefore the substituted Decision Notice (FER0280033) has not been complied with.
Apart from a brief acknowledgement, two days later, there was a deafening silence.
Dear Dr. Keiller.
Thank you for your email.
I will take instructions on your submissions and revert to you shortly.
By 27th July, there still had not been any response and as I was about to go on holiday I emailed the solicitor who was acting on behalf of the Commissioner.
Dear Mr. XXXX, I am writing in connection with regards to EA/2011/0152; Dr Keiller v Information Commissioner & University of East Anglia.
If there are any communications/developments between now and 20th August, inclusive, with regards to the above, I will be unable to respond as I am out of the country and will not have internet/email access.
Accordingly please delay any requirement for a response, from me, until after the 20th August.
So with perfect timing and disregard of my request, the Commissioner responded -on the 13th August …
The Commissioner has corresponded further with the University’s solicitors in response to your submission.
The University has now provided formal confirmation from HP that the scope of searches undertaken during May 2012 encapsulated emails to both "@gatech.edu" and "@eas.gatech.edu" and that any email addresses with those derivatives would have been identified. The Commissioner now attaches:-
(1) A letter to UEA dated 20 July 2012
(2) HP's response dated 30 July 2012.
The Commissioner accepts that the evidence attached demonstrates that the terms of the Tribunal's substituted decision notice of 18 January 2012 have been satisfied.
So crushing and final defeat.
Or was it?