User:A Quest For Knowledge/FAQ: UEA and Freedom of Information Act violations

= FAQ: UAE and Freedom of Information Act violations =

Did the University of East Anglia violate the Freedom of Information Act?
Do the e-mails reveal that the University of East Anglia (UEA) violated the Freedom of Information Act?
 * 1) The Information Commissioner's Office (ICO) - which is the ruling authority regarding FOIA violations - said that the UEA failed to follow FOIA but will not pursue the matter further because the statute of limitations has expired.
 * 2) The review conducted by Pennsylvania State University only examined the conduct of Michael E. Mann, not the UEA.
 * 3) The report issued by House of Commons said they found evidence of FOIA violations, but left it unresolved because a more thorough investigation was required.
 * 4) The investigation conducted by UEA itself said that there was evidence that e-mails might have been deleted to prevent them from being released by FOIA requests and that they didn't respond to FOIA requests properly but blamed the university management.

What do the e-mails say?
NOTE: All of the following is sourced to the HoC report.

I will list additional sources here.
 * 
 * 

E-mail from 2/2/2005:

"And don't leave stuff lying around on ftp sites - you never know who is trawling them. The two MMs have been after the CRU station data for years. If they ever hear there is a Freedom of Information Act now in the UK, I think I'll delete the file rather than send to anyone."

E-mail from Aug 20, 2008

"The FOI line we're all using is this. IPCC is exempt from any countries FOI - the sceptics have been told this. Even though we (MOHC, CRU/UEA) possibly hold relevant info the IPCC is not part our remit (mission statement, aims etc) therefore we don't have an obligation to pass it on."

E-mail: 1228330629

'''When the FOI requests began here, the FOI person said we had to abide by the requests. It took a couple of half hour sessions - one at a screen, to convince them otherwise showing them what CA was all about. Once they became aware of the types of people we were dealing with, everyone at UEA (in the registry and in the Environmental Sciences school - the head of school and a few others) became very supportive. I've got to know the FOI person quite well and the Chief Librarian - who deals with appeals. The VC is also aware of what is going on - at least for one of the requests, but probably doesn't know the number we're dealing with.''' We are in double figures.

One issue is that these requests aren't that widely known within the School. So I don't know who else at UEA may be getting them. CRU is moving up the ladder of requests at UEA though - we're way behind computing though. We're away of requests going to others in the UK - MOHC, Reading, DEFRA and Imperial College. So spelling out all the detail to the LLNL management should be the first thing you do. I hope that Dave is being supportive at PCMDI. The inadvertent email I sent last month has led to a Data Protection Act request sent by a certain Canadian, saying that the email maligned his scientific credibility with his peers!

If he pays 10 pounds (which he hasn't yet) I am supposed to go through my emails and he can get anything I've written about him. About 2 months ago I deleted loads of emails, so have very little - if anything at all. This legislation is different from the FOI - it is supposed to be used to find put why you might have a poor credit rating ! In response to FOI and EIR requests, we've put up some data - mainly paleo data. Each request generally leads to more - to explain what we've put up. Every time, so far, that hasn't led to anything being added - instead just statements saying read what is in the papers and what is on the web site!

What does the ICO say?
The deputy information commissioner Graham Smith said emails between scientists at the university's Climatic Research Unit (CRU) that were hacked and placed on the internet in November revealed that FOI requests were "not dealt with as they should have been under the legislation".

Some of the hacked emails reveal scientists encouraging their colleagues to delete emails, apparently to prevent them from being revealed to people making FOI requests. Such a breach of the act could carry an unlimited fine, but Smith said no action could be taken against the university because the specific request they had looked at happened in May 2008, well outside the six-month limit for such prosecutions under the act.

Smith's statement refers to an FOI request from a retired engineer and climate sceptic in Northampton called David Holland. The CRU had been bombarded with similar requests for data, and the hacked emails between scientists suggest they were extremely frustrated with having to deal with them.

In his statement, Smith said that Holland's request was not dealt with correctly by the university. "The emails which are now public reveal that Mr Holland's requests under the Freedom of Information Act were not dealt with as they should have been under the legislation. Section 77 of the Freedom of Information Act makes it an offence for public authorities to act so as to prevent intentionally the disclosure of requested information."

But he added that it was now too late to take action because the legislation requires that sanctions are imposed within six months of the offence. "The ICO is gathering evidence from this and other time-barred cases to support the case for a change in the law. It is important to note that the ICO enforces the law as it stands – we do not make it."

What does the House of Commons say?
Note: All of the following are exact quotes from the HoC's report.

74. We are not a tribunal reviewing whether breaches of the Freedom of Information Act 2000 (FOIA) have taken place but see as our role in this inquiry as considering whether:


 * (a)  the arrangements for examining whether CRU breached FOIA are adequate;
 * (b) whether the six-month time limit on the initiation of a prosecution where a public authority acts so as to prevent intentionally the disclosure of requested information needs to be revised; and
 * (c) whether UEA ensured that CRU was able to meet the requirements of the legislation when it received FOIA requests.

Freedom of Information legislation

75. The FOIA creating new rights of access to information came into operation on 1 January 2005. CRU, as part of UEA, is classed as a "public authority" for the purposes of the FOIA. In his submission Richard Thomas, who was Information Commissioner from 2002 until June 2009, explained the application of the FOIA to scientific data held by UK universities:


 * the public must be satisfied that publicly-funded universities, as with any other public authority in receipt of public funding, are properly accountable, adopt systems of good governance and can inspire public trust and confidence in their work and operations [...] The fact that the FOIA requests relate to complex scientific data does not detract from this proposition or excuse non-compliance.[105]

76. When he gave oral evidence, we asked Mr Thomas if the legislation drew a distinction between, on the one hand, scientific data and modelling and, on the other hand, administrative records. He replied:


 * the broad answer [...] is no [...] First of all, the legislation applies to information held by the public authority, and information is not elaborated in that sense. [...] It is not ownership. The legislation uses the word "held", and in the Environmental Information Regulations [EIR] that phrase "held" is slightly elaborated. If I can quote the regulation for you there, "It is held by a public authority if the information: (a) is in the authority's possession and has been produced or received by the authority, or (b) is held by another person on behalf of the authority." So that is an elaboration of the concept of "held". It is not ownership.[106]

77. Mr Thomas considered that the issues in this case which were most relevant to the information law appeared to be:


 * (a) the relevance and impact of the information laws on scientific and academic research conducted within universities;
 * (b) the adequacy of section 77 of FOIA to deal with suggestions that CRU researchers deleted information, not in the course of normal work, but to frustrate FOIA/EIR[107] requests;
 * (c) the handling of a large number of FOIA/EIR requests by UEA relating especially to climate change research which (within CRU) it "held"; and
 * (d) whether this case illustrates that there is scope to extend the "proactive" disclosure provisions of FOIA as they relate to universities.[108]

78. Parliament has created a presumption in favour of disclosure but there are exclusions.[109] Mr Thomas explained:


 * There are over 20 exemptions to the fundamental duty to disclose requested information in FOIA.[...] Eight of the main exemptions are absolute and 16 are qualified. Qualified means that there is a "public interest override," which means that, even where the exemption applies, the public interest considerations must be considered. In formal terms, there must still be disclosure—even though the qualified exemption applies—unless the public interest in the exemption outweighs the public interest in disclosure.


 * Mr Thomas added that:


 * The exemptions are similar to those found in other Freedom of Information laws in force in the world. I am not aware which exemptions were considered by the University as potentially applicable to some or all of the requests to CRU. I can speculate that some or all of the following [...] might have been considered:


 * (a) Section 22—where the requested information is intended for future (but imminent) publication;
 * (b) Section 40—where disclosure of personal data would breach any of the data protection principles;
 * (c) Section 41—where the information had been obtained from elsewhere in such circumstances that its disclosure would constitute an actionable breach of confidence under common law;
 * (d) Section 43 (qualified)—where disclosure would, or would be likely to, prejudice the commercial interests of any person, including the public authority;
 * (e) Section 44—where disclosure is prohibited by another enactment or inconsistent with an EU obligation (which may include some intellectual property restrictions); and
 * (f)  Section 14 (not an exemption, strictly speaking)—where the request is vexatious.[110]

79. We were grateful to Mr Thomas for explaining the operation of the FOIA and EIR. He did, however, point out that he did not have detailed knowledge of events at UEA since leaving the Information Commissioner's Office:


 * I have no idea at all what has happened inside my former office. I cannot say because this is a serious matter. It depends a great deal on the circumstances of the particular case, the evidence. I have had no direct contact with the office as to how this case is being handled.[111]


 * Alleged breaches of the Freedom of Information Act 2000

THE E-MAILS

80. Some of the hacked e-mails appear to reveal scientists encouraging their colleagues to resist disclosure and to delete e-mails, apparently to prevent them from being revealed to people making FOIA requests. Below are examples, in chronological order, of e-mails sent by Professor Jones which address FOIA and requests for information.

E-mail: 1107454306 [Extract]

At 09:41 AM 2/2/2005, Phil Jones wrote:

Mike,[...]Just sent loads of station data to Scott. Make sure he documents everything better this time! And don't leave stuff lying around on ftp sites - you never know who is trawling them. The two MMs have been after the CRU station data for years. If they ever hear there is a Freedom of Information Act now in the UK, I think I'll delete the file rather than send to anyone. Does your similar act in the US force you to respond to enquiries within 20 days? - our does ! The UK works on precedents, so the first request will test it. We also have a data protection act, which I will hide behind. Tom Wigley has sent me a worried email when he heard about it - thought people could ask him for his model code. He has retired officially from UEA so he can hide behind that. IPR should be relevant here, but I can see me getting into an argument with someone at UEA who'll say we must adhere to it !. [...]

E-mail: 1219239172 [Extract]

From: Phil Jones 

To: Gavin Schmidt 

Subject: Re: Revised version the Wengen paper

Date: Wed Aug 20 09:32:52 2008

[...] Keith/Tim still getting FOI requests as well as MOHC and Reading. All our FOI officers have been in discussions and are now using the same exceptions not to respond - advice they got from the Information Commissioner. As an aside and just between us, it seems that Brian Hoskins has withdrawn himself from the WG1 Lead nominations. It seems he doesn't want to have to deal with this hassle.

The FOI line we're all using is this. IPCC is exempt from any countries FOI - the Sceptics have been told this. Even though we (MOHC, CRU/UEA) possibly hold relevant info the IPCC is not part our remit (mission statement, aims etc) therefore we don't have an obligation to pass it on.

Cheers

Phil

E-mail: 1228330629

From: Phil Jones 

To: santer1@xxxxxxxxx.xxx, Tom Wigley 

Subject: Re: Schles suggestion

Date: Wed Dec 3 13:57:09 2008

Cc: mann , Gavin Schmidt , Karl Taylor , peter gleckler gleckler1@xxxxxxxxx.xxx

Ben,

When the FOI requests began here, the FOI person said we had to abide by the requests. It took a couple of half hour sessions - one at a screen, to convince them otherwise showing them what CA was all about. Once they became aware of the types of people we were dealing with, everyone at UEA (in the registry and in the Environmental Sciences school - the head of school and a few others) became very supportive. I've got to know the FOI person quite well and the Chief Librarian - who deals with appeals. The VC is also aware of what is going on - at least for one of the requests, but probably doesn't know the number we're dealing with. We are in double figures.

One issue is that these requests aren't that widely known within the School. So I don't know who else at UEA may be getting them. CRU is moving up the ladder of requests at UEA though - we're way behind computing though. We're away of requests going to others in the UK - MOHC, Reading, DEFRA and Imperial College. So spelling out all the detail to the LLNL management should be the first thing you do. I hope that Dave is being supportive at PCMDI. The inadvertent email I sent last month has led to a Data Protection Act request sent by a certain Canadian, saying that the email maligned his scientific credibility with his peers!

If he pays 10 pounds (which he hasn't yet) I am supposed to go through my emails and he can get anything I've written about him. About 2 months ago I deleted loads of emails, so have very little - if anything at all. This legislation is different from the FOI - it is supposed to be used to find put why you might have a poor credit rating ! In response to FOI and EIR requests, we've put up some data - mainly paleo data. Each request generally leads to more - to explain what we've put up. Every time, so far, that hasn't led to anything being added - instead just statements saying read what is in the papers and what is on the web site! Tim Osborn sent one such response (via the FOI person) earlier this week. We've never sent programs, any codes and manuals.

In the UK, the Research Assessment Exercise results will be out in 2 weeks time.

These are expensive to produce and take too much time, so from next year we'll be moving onto a metric based system. The metrics will be # and amounts of grants, papers and citations etc. I did flippantly suggest that the # of FOI requests you get should be another.

When you look at CA, they only look papers from a handful of people. They will start on another coming out in The Holocene early next year. Gavin and Mike are on this with loads of others. I've told both exactly what will appear on CA once they get access to it!

Cheers

Phil

E-mail: 1237496573 [Extract]

From: Phil Jones 

To: santer1@xxxxxxxxx.xxx

Subject: Re: See the link below

Date: Thu Mar 19 17:02:53 2009

[...] CRU has had numerous FOI requests since the beginning of 2007. The Met Office, Reading, NCDC and GISS have had as well - many related to IPCC involvement. I know the world changes and the way we do things changes, but these requests and the sorts of simple mistakes, should not have an influence on the way things have been adequately dealt with for over a century.

Cheers

Phil

81. In his submission Andrew Montford stated that:


 * Research materials should be made available to outsiders as a requirement of the scientific method. That scientists have failed to do so is reprehensible, but the fact that they have apparently also resorted to breaches of the Freedom of Information Act in order to do so requires urgent attention from policymakers.[112]

82. As we explained in the previous chapter, David Holland was the author of several FOIA requests that were mentioned in the leaked e-mails. In his submission he pointed out that on 9 May [2008] in e-mail 1210367056, Professor Jones sent "my formal information request to 'team' members Mann, Hughes and Ammann" writing:


 * You can delete this attachment if you want. Keep this quiet also, but this is the person who is putting in FOI requests for all emails Keith and Tim have written and received re Ch 6 of AR4.[113] We think we've found a way around this.[114]

83. Mr Holland also drew attention to e-mail 1212063122 dated 29 May 2008 in which Professor Jones asked Professor Mann:


 * Can you delete any emails you may have had with Keith re AR4? Keith will do likewise. Can you also email [Eu]Gene [Wahl] and get him to do the same? I don't have his new email address. We will be getting Caspar [Ammann] to do likewise.[115]

What does the UEA's investigation say?
Note: All of the following are exact quotes from the HoC's report.

1.3.5 Compliance with the Freedom of Information Act (FoIA) and the Environmental Information Regulations (EIR)

On the allegation that CRU does not appear to have acted in a way consistent with the spirit and intent of the FoIA or EIR, we find that there was unhelpfulness in responding to requests and evidence that e-mails might have been deleted in order to make them unavailable should a subsequent request be made for them. University senior management should have accepted more responsibility for implementing the required processes for FoIA and EIR compliance.

In the aftermath of AR4, attempts were made to demonstrate that the IPCC process had been abused by CRU members. Jones was accused of attempting to exclude reference to a 2004 paper by McKitrick and Michaels42, and Briffa of including reference to Wahl 200743 before it was in publication, contrary to IPCC rules. These accusations were accompanied by Freedom of Information FOI requests. In an email dated 10/12/08 (1228922050.txt) Jones wrote: “Anyway requests have been of three types - observational data, paleo data and who made IPCC changes and why. Keith has got all the latter –and there have been at least 4. We made Susan aware of these - all came from David Holland. According to the FOI Commissioner's Office, IPCC is an international organization, so is above any national FOI. Even if UEA holds anything about IPCC, we are not obliged to pass it on, unless it has anything to do with our core business - and it doesn't!”

Over the period under review, data accessibility was also being driven by major changes in the law that had important implications for research scientists working in the UK. Whilst the precursors of the Environmental Information Regulations date back to the 1990s, the current EIR came into force on 1st January 2005, on the same date as the general right of access under the Freedom of Information Act 2000 (FoIA). These are described in more detail in Chapter 10. The EIR applies exclusively within a rather broad definition of environmental and related information; this area is then excluded from the FoIA. The extent to which both regimes apply to access to information from publicly funded (or part-funded) research is still an evolving area. Whilst it is broadly recognised that these do apply to data and supporting metadata, algorithms, etc. at the point when a research paper is published, how to interpret the legislation and regulations in terms of data held for a long period prior to publication and also pre-publication drafts and other correspondence is work in progress. The ‗public interest test‘, applicable to both EIR and FoIA, again described in Chapter 10, remains key to such interpretation.

For some years prior to the coming into force of the general right of access to information under FoIA, CRU had received requests for data, including station identifiers. An example of the attitude to these requests is given in the following e-mail extract: Jones to Mann on 2nd February 2005 (1107454306.txt): “And don't leave stuff lying around on ftp sites - you never know who is trawling them. The two MMs have been after the CRU station data for years. If they ever hear there is a Freedom of Information Act now in the UK, I think I'll delete the file rather than send to anyone. Does your similar act in the US force you to respond to enquiries within 20 days? - our does ! The UK works on precedents, so the first request will test it. We also have a data protection act, which I will hide behind. Tom Wigley has sent me a worried email when he heard about it - thought people could ask him for his model code. He has retired officially from UEA so he can hide behind that. IPR should be relevant here, but I can see me getting into an argument with someone at UEA who'll say we must adhere to it !”

A request was made to CRU for both station identifiers and access to the raw data for these stations. This was formally logged by the UEA Information Policy & Compliance Manager (IPCM) in January 2007 and was dealt with under the FoIA. The request was initially refused entirely on the grounds that raw station data was publicly available (from GHCN, NCAR and the NMOs), but without reference to providing station identifiers. Following further correspondence, an internal UEA appeal process and further prompting by the applicant, the list of the 4138 stations used in CRUTEM3 was finally released on 1st October. The issues that this raises on compliance with the FoIA are dealt with in Chapter 10.

Misc stuff that needs to be added to this FAQ

 * As the Parliamentary Committee said in its recommendations: We regret that the ICO made a statement to the press that went beyond that which it could substantiate and that it took over a month for the ICO properly to put the record straight. We recommend that the ICO develop procedures to ensure that its public comments are checked and that mechanisms exist to swiftly correct any mis-statement or misinterpretations of such statements.
 * As it happens, I have a copy of Graham Smith's original message to the Sunday Times journalist, dated 22 January 2010, obtained through a FOIA request, and can confirm it matches pp. 8–9 of this pdf which google picked up from www.whatdotheyknow.com. The covering letter from the ICO said "Firstly, it would appear helpful if I clarify that the ICO has not issued a formal statement in regard to this matter. The ICO did however receive a specific enquiry from a journalist in relation to University of East Anglia on 21 January 2010. It appears that the ICO's answer to this specific enquiry may have been reported in the media as being a 'decision'. For your information the ICO provided the following response to the enquiry;" A similar request made by a blogger apparently received a similar response, see Desdemona Despair: ICO responds to Desdemona’s ‘Climategate’ query. . ..
 * Based on the e-mails you provided, it looks like this dispute is over whether the ICO issued a statement or a formal statement and over whether this was a statement or a decision. Either way, it doesn't change the fact that the ICO looked into allegations and found that that the UAE did not follow FOIA but did not pursue the matter further because the 6 month statute of limitations had expired.
 * This dispute seems to be over whether the ICO issued a statement or a formal statement and over whether this was a statement or a decision, not on the finding as a whole.