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.