Saturday
Oct182014
Informality in the ICO
Oct 18, 2014 Climate: IPCC FOI This is a guest post by David Holland.
When the Information Commissioner's Office investigate a complaint its recent practice is for the case officer to outline what he or she proposes to do, beginning with,
Where possible the Information Commissioner prefers complaints to be resolved informally and we ask both parties to be open to compromise. With this in mind, I will write to the public authority and ask it to revisit your request. It may wish to reverse or amend its position. If it does, it will contact you again directly about this.
However, in the case of Peter Wadhams' Review Editor's reports as discussed here in April, the next thing that happened was a Decision Notice arriving by post. The key paragraph 11 of the Decision Notice reported that the University of Cambridge...
...explained that it had made proper enquiry of the professor referred to by the complainant and that he stated that the work undertaken for the IPCC had been undertaken by him personally on a voluntary basis and that he considered the reports to be confidential to the IPCC secretariat. It went on to say that the work does not form any part of his University duties and consequently, even if the information were held within the University, it is not held to any extent for its own purposes.
The Commissioner's decision, which I am appealing in Tribunal case EA/2014/0115, rested upon the fact that he had reversed his advice in relation to what "information held" means under the EIR. Originally he assumed the literal meaning of Environmental Information Regulations 2004 which is also what the statutory code of practice states. In August 2011, apparently in order to harmonise the EIR and FOIA, his advice became,
Information is not in the authority’s “possession” if it is not being held to any extent for its own purposes. Therefore information merely stored by an authority on behalf of someone else would not be “held” for the purposes of the EIR.
This is what I called the Mitchell defence discussed at CA and is obviously still too tempting for some. Students of Climategate will recall that not even Phil Jones thought it would fly and indeed it took very little time to show that the Met Office annual report disproved it. With Cambridge, unlike the Met Office, accepting that the EIR applied they needed to show not only that Wadhams acted personally but any information that was held was not held for the purposes of the University.
This is hard to believe as Wadhams was only one of several Cambridge participants in AR5. Every IPCC report from the first to the fifth has been published by the University of Cambridge and the copyright form that all IPCC participants are required to sign clearly implies that an agreement exists between the University and the IPCC. Moreover, almost every college in the University has its fingers in the climate change pie.
As to whether Wadhams' work was part of his University duties, the generic role of professors published by Cambridge strongly suggests that it is, as does the VC’s foreword in the 2013 Annual Report. The documents just mentioned and several others have been submitted to the Tribunal, so I was fairly confident, but as ever, I wanted to be sure, so I asked DECC to say how much expenses Wadhams was paid and to see the Excel sheet application form with which he asked to be considered for AR5. DECC disclosed his expenses but, disgracefully in my view, refused to say if Wadhams applied using his private postal email addresses, even though I had made clear that I was not asking for them, but just if they had been used.
To be fair the Commissioner’s Office, this time when I complained they did informally negotiate with DECC, who wrote to me confirming that Wadhams applied using his University departmental postal address and as importantly his University email address. In a letter to the Commissioner, the University had earlier stated that Wadhams had used no University facilities. So how did Working Group One invite him to be a Review Editor?
If, as appears to be the case someone was economical with the actuality, prima facie, yet another EIR regulation 19 ‘blocking offence’ has escaped the possibility of prosecution thanks to the ridiculously short time limit for reporting this offence and the failure of both the University and the Commissioner to check their facts. I wrote to the Cambridge VC on 2 October, presenting what I think is strong evidence of wrondoing and hoped by now that the University of Cambridge might have made some comment on this case and preferably reversed its decision to refuse my request.
PS Apologies for the premature unfinished posting noted by ZT.
Reader Comments (24)
'that was held was' (truncated?)
Where are the men of honour? Is every person in a position of authority in this country a charlatan? When the backlash comes it will be all the more vehement.
The point is that this work is by members of a public institution (Cambridge University) for a public institution (IPCC) on a matter of such public importance that the UK Government formulates policy and Parliament enacts legislation to implement policies that flow from the conclusions reached by the IPCC.
Does anybody really believe that the University and its staff owe no moral and legal duty to the public in revealing the basis for its scientific judgments that support IPCC conclusions?
@H2O
where indeed.
I was cynical about the ICO on our first appeal - but they did their job - not in time mind - but they did it.
Second time around - it is clear to me that some pressure was applied and serial abuses of the system got a free pass.
What is deeply disappointing is that where
Deliberate and unequivocal lies are told by public officials (documents destroyed - they weren't and more)
Deliberate delays are connived, by same officials (ignoring repeated identical requests - running out every statutory window)
Procedural escalation driven via stonewalling by same officials (Fabricating spurious justification for withholding docs)
NOBODY GETS PROSECUTED OR FINED - so that the entire process really feels totally futile in terms of remedy - and... remedy is required - that is obvious. If the publicly funded enforcers are ineffective - the remedy will end up being that people take the law into their own hands and things will get confrontational.
What's looking like the definitive academic analysis was linked by Doug Proctor in another topic :-)
YOU CANNOT HARMONISE EIR AND FOI
These are from two different regulatory structures, the EIR based on Directive 2003/4/EC and the UNECE Aarhus Convention.
I would strongly advise you to read the sections below related to Article 4 and Article 9(1) in the Aarhus Convention: An Implementation Guide:
http://www.unece.org/env/pp/implementation_guide.html
References to the findings of the compliance committee in it, which have been endorsed by the Meeting of the Parties, the 47 Countries (Parties), which meet every three years, are binding in both international, EU and National law.
http://en.wikipedia.org/wiki/Malfeasance_in_office#English_law
Pat,
Actually they could harmonise the FOIA and the EIR by taking the E out of the EIR and making it apply to all information. However, the FOIA is so much better for refusing to disclose that I would not hold your breath. Every public authority that I have dealt with has first tried to get away with using the FOIA. Remember UEA and the Met Office stubbornly stuck to the FOIA until after Climategate when the Commissioner forced them to behave.
Even the ICO wrongly used the FOIA when I asked it to disclose the three letters that it and the Met Office were citing as reasons for refusing the AR4 ZODs. The problem is they then come up a reason for refusal that does not apply so easily under the EIR. In case of the three letters the ICO used an FOIA Tribunal case to argue that the IPCC is a business for the purposes of the Data Protection Act and it section 59(1) prohibits disclosure unless the Met Office consented, which it did not. DPA s. 59(2) allows disclosure in certain circumstance which clearly applied, but the ICO decided that the public interest lay in maintaining the confidentiality of the complaints procedure.
The three letters were released yesterday and say absolutely nothing that is new or was not considered in the previous AR5 ZODs case.
David
I remember about five Years ago there was a similar fuss around whether the met office ipcc people were doing work out of the goodness of their hearts or as part of the IPCC.
I attended the Exeter climate change conference where all the great and the good ( and me) were assembled to hear a veritable panoply of ipcc authors and reviewers all organised by the Met office plus Exeter and Leeds University
http://www.exeter.ac.uk/climate2014/abouttheevent/
It stretches credulity to believe such events as these, and no doubt many others, are done purely in the participants own time.
Anyway, good luck with your ferreting. I have a special interest as my son is doing a phd at Cambridge.
At his Masters ceremony you have a clear view of the University book shop, just outside.
Earlier in the day I had gone in to innocently enquire wheth they had a particular sceptical book on climate change. Grown men and women fell to the ground in a faint whilst they called a priest to exorcise me.
Well, I exaggerate a little but they certainly didn't have the book and were highly surprised by my request.
Tonyb
Surely there is a higher authority to which one can appeal to get justice ?
Ross,
Up to the First Tier Tribunal is not too difficult but very time consuming. After that it gets expensive to lose.
David
They are trying to get away with blue murder again and no doubt, unintentionally, people are letting them get away with it. There are exemptions under Article 4 of Aarhus, namely as implemented in the EIR, but they have to be interpreted in a very restrictive way, see the implementation guide referred to on the previous post Furthermore, the definition of environmental information in the Convention, associated Directive and Environmental Information Regulations (EIR) is extremely broad. If it falls into that category it MUST be treated in accordance with that regulatory framework.
The UK is a SERIAL OFFENDER with regards to breaches of the Convention, you only have to look at the total number of findings there are against Parties (countries), see below, to recognise that the UK is way out in front:
http://www.unece.org/env/pp/pubcom.html
Recently they lost a case at UNECE in relation to provision of environmental information in Edinburgh. you can look at Points 32 and 34 below:
http://www.unece.org/fileadmin/DAM/env/pp/mop5/Documents/Post_session_docs/ece.mp.pp.2014.2_aec.pdf
http://tinyurl.com/k7qfrl6
The UK actually got quite tetchy about this decision against it and tried to wriggle as much as it could. However, you should look very carefully at what resulted in Point 10 below:
http://www.unece.org/fileadmin/DAM/env/pp/mop5/Documents/In-session_docs/ece.mp.pp.2014.crp.6.pdf
http://tinyurl.com/qcs2apj
"Notes the commitment of the Party concerned to ensure, through the continued operation of the domestic systems put in place to enable the decisions of public authorities to be reviewed, that the practice of releasing raw data in appropriate circumstances in ongoing decision-making processes is maintained".
The finalised document from the Meeting of the Parties, which is binding in International Law and hence automatically in Community and National Law is below:
http://www.unece.org/fileadmin/DAM/env/pp/mop5/Documents/Post_session_docs/ECE.MP.PP.2014.2.Add.1_aec.pdf
http://tinyurl.com/llkqwld
If you go to the last two pages, you will see in finalised form the decision against the UK on a number of issues, not only on Point 10 above, but also in relation to the UK National Renewable Energy Action Plan (NREAP), while page 65 gives the ruling against the EU over the NREAP implementation with regard to all the Member States.
These rulings on the NREAPs are already leading to further legal action in the national courts, so there will be an interesting few months ahead.
However, to come back to your issue in your blog, if the UK appeal is not conducted in accordance with Articles 4 and 9(1) of the Convention, as elaborated in the implementation guide I referred to in my previous post, then you should lodge a Communication (complaint) to UNECE.
Pat,
I am familiar with the Directive, the Convention, its Implementation Guide, the Almaty Guidelines and the regs but I will go through the points you raised in more detail when I have a bit more time. I think the non-compliance in point 10 relates to the system in Scotland where it is prohibitively expensive to appeal its version of an Information Commissioner.
When I tried to appeal the refusal of the Uni of Edinburgh it was sent back to me saying that needed to pay £180 and get a solicitor. It is obviously noncompliant and probably why the UEA based its Climategate enquiry in Scotland.
David
A lot of things non-compliant, but as the well known Irish playwright George Bernard Shaw put it:
"The reasonable man adapts his needs to the world, the unreasonable man persists in adapting the world to his needs, therefore all progress depends on the unreasonable man".
Keep up the good work, it is what is needed. Currently here in Ireland seven Judicial Reviews against renewable planning decisions are now lined up in the High Court, plus my own case.
The below sums it up in some twenty slides:
http://www.windsofjustice.org.uk/wp-content/uploads/2014/09/To-Err-is-Human-Particularly-when-you-do-not-look-before-you-leap.pdf
http://tinyurl.com/nenhjm4
One way or another, the valid information is starting to get out here, as it is increasingly so in the UK. Keep pushing those doors, it's good to be 'unreasonable'.
Regards
Pat
Wadhams' has multiple institutional affiliations and he must be in the IPCC 'from' one part or the other. There are only a few self-employed authors in the the IPCC - there is a lady in the IPCC AR4 health section who wrote/reviewed a chapter functioning out of her own limited liability company. There are no unaffiliated inidividuals.
David Holland,
What follows may be a totally impractical suggestion - but here goes!
In Canada we have a small right-wing news organization called the Sun News Network. It has a tiny market share for a number of reasons - mainly because the 'system' has conspired to keep easy cable access to its programs limited.
However, the SUN punches above its weight and creates entertaining programming by challenging authority in an unusual way. When it sees the appropriate populist cause the network raises money for legal fees to 'fight city hall' by crowd sourcing. The SUN benefits greatly by gaining much needed low cost programming content and often gets the job done simply by persistently embarrassing the authorities in a highly public forum.
Is there a 'SUN' in your neck of the woods?
The Sun used Freedom of Information legislation do an absolutely brutal expose of David Suzuki.
http://www.youtube.com/watch?v=6nARIP90l9Q
A little off topic, but tiny SUN is now after bigger fish. Ezra Levant has a series of videos on the Sun News Network about a Canadian Broadcasting Corporation led ‘consortium’ of TV networks to block political ads that they don’t like (i.e. those that show news clips of Justin Trudeau - Liberal candidate for PM - saying stupid stuff!). The top news executives from the networks foolishly signed a document to agree to this - SUN has a copy.
This appears to be an absolutely clear cut violation of the Competition Act. Penalty – up to 14 years in the slammer and a fine up to $25 million, or both. Only six Canadians need to sign a complaint to force the Competition Bureau to start an investigation.
This will get interesting!
Not surprisingly, the network weasels aren’t reporting on raiding the chicken coop.
And, speaking as a proud Canadian our man Steve McIntyre and his friends continue to do good work - do give Climate Audit a peek! Steyn is doing cartwheels an high-fives! Gavin and Mike - not so much.
'the failure of both the University and the Commissioner to check their facts. ' your assuming all those smart people where unable to work out what the lesser of two evils was . I think your wrong , given people the administrative run around until the clock runs out is actual very old and tested approach which a place like Cambridge will be very familiar with.
The chances of him not using Cambridge faculties were zero, and the idea of what is 'official ' or 'unofficial ' is unclear for a good reason, plausible denial . The give away will be if the university took any credit his work for the IPCC , in which case their 'nothing to do with us ' approach , may fall .
But you up against perhaps the best in the busy , they trained and employee some of the very best 'smoke blowers and mirror uses' the civil service and industry has ever see and don't underestimate how hard they live fight to protect the university regardless of facts and how good their connections are to the highest level .
In that Cambridge has already acknowledged to David Holland that they paid Wadhams' travel expenses to an AR5 lead authors meeting in Marrakesh this is pretty outrageous.
https://www.whatdotheyknow.com/request/207631/response/519412/attach/html/2/14%200650%20IPCC%20Expenses%20reply.pdf.html
DGH,
It is DECC that disclosed that it paid Wadhams expenses - and without much argument (see link above). It took a complaint to the Commissioner to get DECC to admit that Wadhams used his University email and postal addresses on his application form to serve AR5. This is another case of the blob at work. It is no secret that DECC pay all travel expenses of those who are selected to serve on an IPCC working group. The Climategate emails show that the the people who were then at Defra always contacted the climate scientist when they had an enquiry relating to climate change. They knew the implication of disclosing that Wadhams did not apply on a private basis because in my request I made it fairly obvious.
Some BH reader may know better than me, but as an 'officer' of the University, as apposed to say a tenured professor, or an emeritus one, I think that by styling himself Professor as opposed to Dr, Wadhams was acting as an officer of the University whatever addresses he used. The 'generic role of a professor that I linked to above leaves absolutely no doubt the Wadhams was doing exactly what he was employed to do.
Do not forget what this is about. The University of Reading released its RE reports without a murmur. Wadhams, and maybe Cambridge, did not want it made public that he had 'bad mouthed' a prominent British MP in his report, which had been made available to the representatives of most of the world's governments. Cambridge has a loose canon.
Andrew, may advice is to appeal to the first tier tribunal.
In my experience the ICO will often side with "the great and the good". And what is more "great and good" than a Cambridge Professor working to "save the World".
As you know I have some experience with the ICO. I would be happy to help.
Sorry, by "Andrew" I meant "David" and I owe you one.
Don,
It is appealed as EA/2014/0115, which seems to be sat in a queue. What I am reporting here is that I have now advised the Tribunal that I have recently received the evidence from DECC that the Commissioner was misinformed by Cambridge into believing that no University facilities were used. Far from applying privately to serve in AR5 Wadhams used his University postal and email addresses. Accordingly it very unlikely that no University facilities were used as was claimed. In fact he must have many AR5 emails in his University account.
David, if so they must have gone through the University server....
Remember my tribunal.
Don
Excellent line of inquiry. Either these people are relying on their conferred academic status or they are not. Either they are using their employer's facilities, or they are not.
Like the US EPA, their definition of "independent" lacks rigour.
http://junkscience.com/2012/03/08/clearing-the-air-on-the-epa/
What he said.