Inquiries from Jonathan Leake of the Sunday Times resulted in the following statement on Jan 22, 2010 by Graham Smith, Deputy Commissioner, Information Commissioner’s Office. Smith stated that David Holland’s FOI requests were “not dealt with as they should have been under the legislation”, that it is an “offence for public authorities to act so as to prevent intentionally the disclosure of requested information”, but that the particulars of the offence only came to light after the six-month statute of limitations under the FOI Act had expired. Smith stated that the Information Commissioner’s Office would request a change in the law to enable the prosecution of such time-barred cases.
While Smith did not propose a name for the amendment to the FOI law, it seems to me that the logical name would be the Jones et al (2010) Amendment (Jones et al being Jones, Philip W., Michael Mann, Keith Briffa, Caspar Ammann and Eugene Wahl.) This might prove a more permanent contribution than any of the Team hockeysticks.
The full statement:
Norfolk Police are investigating how private emails have become public. The Information Commissioner’s Office is assisting the police investigation with advice on data protection and freedom of information.
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. Mr Holland’s FOI requests were submitted in 2007/8, but it has only recently come to light that they were not dealt with in accordance with the Act.
The legislation requires action within six months of the offence taking place, so by the time the action taken came to light the opportunity to consider a prosecution was long gone. 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.
It is for government and Parliament to consider whether this aspect of the legislation should be strengthened to deter this type of activity in future. We will be advising the University about the importance of effective records management and their legal obligations in respect of future requests for information. We will also be studying the investigation reports (by Lord Russell and Norfolk Police), and we will then consider what regulatory action, if any, should then be taken under the Data Protection Act.”
My guess is that this is not the end of this particular story.
The six month statute of limitations would not apply to the consideration of these actions by the various universities under their investigations.
It is also possible that the Information Commissioner’s Office may consider other approaches to the problem with longer statutes of limitations.
Climate Audit 
114 Comments
A fitting way for history to remember them.
Prince Charles was at the CRU yesterday giving support, he took time to speak privately to Jones, seems Jones is still working at the CRU just not in charge.
Wonder if Charles is still speaking to his plants.
As reported in ITV’s Anglia Regional News. Christopher Booker helped write Prince Charles’ most famous speech 26 years ago (on architecture) and has some useful reflections on the man’s strengths and weaknesses. I think Charles is very genuine but has been misled, like so many, about the strength of the science indicating carbon dioxide’s influence. An East Anglian politician sums up the situation well in the ITV report – worth remembering that voice would not have heard three months ago. But a typical bit of PR from the ‘establishment’ and not well judged by the Prince.
The Charlie will be talking to his trees, just like Jones and Briffa and Mann do.
The six month limit on prosecutions for “summary” offences should not be a problem and would not want to get a parking or speeding summons years after the event. The problem may be that section 77(4) of the FOIA states,
“No proceedings for an offence under this section shall be instituted except
by the Commissioner or by or with the consent of the Director of Public
Prosecutions”
and section 50(2)(a) of the FOIA states
“On receiving an application under this section, the Commissioner shall make
a decision unless it appears to him that the complainant has not exhausted
any complaints procedure which is provided by the public authority in
conformity with the code of practice under section 45”
Now I am not a lawyer but I don’t see any provision in the code of practice for public authorities to review an accusation of “blocking” and it would be against natural justice to give them the right to decide if they have committed an offence and thereby delay its prosecution.
Accordingly I believe a complaint to the ICO for “blocking” has to made directly to the ICO making clear that it is a complaint under section 77 of the FOIA or regulation 19 of the EIR.
I do not know what to think.
‘active’ vs. ‘reactive’
Personal Bias: ‘Pro-active’ is not in my dictionary.
I’m sorta dumb,
Can I commit a crime and then get off, ‘scot-free’, after only 6 mos?
If that’s the ‘case’, I would still hide the decline.
Aw, it’s just a hypothetical…
reply to me (Jimchip} just in case.
Prince Charles here
Yes, that’s extremely unfortunate. But that’s your whole problem Steve. You keep going on about those little blips. Thank goodness.
The whole episode (and especially Prince Charles compliments for Jones, while Steve suffers vicious personal attacks) reminds me of the great scene from Man for All Seasons:
Margaret: In any State that was half good, you would be raised up high, not here, for what you’ve done already. It’s not your fault the State’s three-quarters bad. Then if you elect to suffer for it, you elect yourself a hero.
More: That’s very neat. But look now … If we lived in a State where virtue was profitable, common sense would make us good, and greed would make us saintly. And we’d live like animals or angels in the happy land that needs no heroes. But since in fact we see that avarice, anger, envy, pride, sloth, lust and stupidity commonly profit far beyond humility, chastity, fortitude, justice and thought, and have to choose, to be human at all … why then perhaps we must stand fast a little ― even at the risk of being heroes.
Steve: No need for such extravagant comments
Charles’ timing is interesting. His mere presence puts pressure on the investigators. His visit makes a statemen (whether intended or not) that he believes that Jones et al are the victims in this whole thing. I only hope that the investigators are not susceptible to this kind of pressure.
Not aimed at the investigators – rather, aimed at public opinion
He is well known here for his behind the scenes meddleing. I agree with mpaul- dont underestemate the power of the establishment here.
Did he really say “down-heartened”???
I do miss the preview! Is that what this Sandbox is?
You need to use Firefox as your browser and install CA Assistant to get Preview these days David. (Others can explain why.) But it works very well once you do.
Re: Richard Drake (Jan 27 08:53),
Great to have CA Assistant.
Side note: When I increase the text size in Firefox, the header wraps and is then hidden by the “Steve McIntyre” heading. e.g. try above:
snip – OT venting. This is relevant to the glacier thread, not here.
It seems the ICO who released this to the press, was the group that advised Jones to ignore the FOI’s in the first place.
Steve: Be careful to distinguish between what came from the ICO and what was from the internal UEA FOI office.
“These are not the droids you are looking for”
Steve, in my post there are two emails which say the same thing. The second one has this:
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!
I don’t know if there’s a difference between the freedom of information commissioners office and the information commissioners office but they sound like the same thing to me.
Steve: Jeff, I’m aware of this email. As I recall, this is partway through the process and some of the earlier actions are based on info from the UEA FOI officer.
I’m not sure that the timing of when the story was told by Jones makes any difference because it’s not when the events actually happened. But this reference below is before the next and it’s clear that they were being advised by the information commissioner.
Email – 1219239172.txt
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.
Email – 1228330629.txt
> 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.
Jeff I think it goes like this.
In the May June time frame at CRU Palmer was using the
following excuse.
1. they are confidential
2. Too much time and money.
MET had used there are no files, no wait they are personal,
By this mail:
1219239172.txt
which is august, the ICO had given them the “right” exception to reply
and all such requests would be taken that route. The exception is
you cannot FOIA CRU or MET for IPCC stuff because IPCC work is not a part of their remit. and you cant FOIA IPCC cause you can’t
So, even though they are CRU employees the work they do for IPCC is
not part of their “job” get it? CRU’s mission doesnt say “support the IPCC”
therefore, work they do for the IPCC is “not their job” so you cant FOIA it.
Slick. Cool hack.
So, Palmers lame excuse “confidential” doesnt work. because its not confidential. It’s different from confidential. It’s not work product.
neither is it personal. Its IPCC work. that work is not personal. Its not
official. its not confidential. pretty slick if I read it right.
Steve
If as you may imply, and it crossed my mind too, Jones’ email does not ‘fully reflect’ any conversation he ‘may have had’ with the Information Commissioners’ office, his denial of response to FOIs is even more serious, and likewise the ‘loss of data’. What on earth might he be avoiding releasing?? The need to find out is somewhat enhanced, and one hopes the matter can be heard in a higher court, as suggested by Bishop Hill.
I’d be interested if anyone knows where the Statute of Limitations is coming from for the FOIA. Generally, under English/UK law, there are exemptions in the case of fraud/deliberate concealment such that “the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it.”
It would be completely bizarre if that does not apply here, although the quality of jurisprudence in this country has been woefully low in recent years.
It’s clearly outrageous if true but like you I doubted this was the final answer the moment I saw it on Bishop Hills’ blog last night. As Dickens said the law’s an ass but surely SOL has been debugged reasonably well by now and can’t be screwed up this much. If it has, I’m sure that MPs, having been significant victims last year of a series of FOI requests on their expenses followed by a devastating whistleblower … er, thinking about it, it could go either way. But, joking aside, I think this will be rectified very quickly.
cjm99
We do not have a statute of limitations as such. But no indictable offences at summary trial are subject to the following:-
The 6 month limit is enshrined in law. Namely, The Magistrates Court Act 1980 :
section 127 Limitation of Time
(1) Except as otherwise expressly provided by any enactment and subject to subsection (2) below, a magistrates’ court shall not try an information or hear a complaint unless the information was laid, or the complaint made, within 6 months from the time when the offence was committed, or the matter of complaint arose.
(2) Nothing in–
(a) subsection (1) above; or
( B) subject to subsection (4) below, any other enactment (however framed or worded) which, as regards any offence to which it applies, would but for this section impose a time-limit on the power of a magistrates’ court to try an information summarily or impose a limitation on the time for taking summary proceedings,
shall apply in relation to any indictable offence.
(3) Without prejudice to the generality of paragraph ( B) of subsection (2) above, that paragraph includes enactments which impose a time-limit that applies only in certain circumstances (for example, where the proceedings are not instituted by or with the consent of the Director of Public Prosecutions or some other specified authority).
(4) Where, as regards any indictable offence, there is imposed by any enactment (however framed or worded, and whether falling within subsection (2)( B) above or not) a limitation on the time for taking proceedings on indictment for that offence no summary proceedings for that offence shall be taken after the latest time for taking proceedings on indictment.
Always be wary when a bureaucrat specifically quotes a rule or law; sometimes such a response is designed to misled the recipient such as to follow the wrong avenue, and sometimes such a response is deftly wrong based upon ignorance or inexperience.
Somehow, now that there has been discovery of the FOIA violations as well evidence revealed that the “FOIA enforcers/advisors” purposely misled the original FOIA submitters, someone needs to file a legal complaint requesting a formal ruling from a court. Is that possible in the UK? Who are the real villains in this case? The Hockey Team Members or the UEA FOIA bureaucrats or both? Ignorance of the law is no excuse in the USA, particularly in administrative court, but what about the UK?
Re: cjm99 (Jan 27 10:28), If followup requests, or requests for explanations of the refusal are posited, do they extend the six-month period?
If not, can such requests, if similarly refused, constitute a fresh violation?
This mess reminds me of Hitch Hikers Guide To the Universe, where the Highway Bypass Notice is “posted in public” on the bottom of a filing cabinet drawer in an unlighted basement!
Even if by some legalistic means the Deputy Information Commisioner is avoiding prosecution is this case, at least we now know the ‘Establishment’ is aware of shennanigans at CRU.
The response still does not preclude other pertinent prosecutions for FOIs inside last six months, and definitely puts a shot across Jones’ bow!
Re: Dr Iain McQueen (Jan 27 10:37),
I agree with this, Iain. I don’t think prosecution or jail time for these people is so crucial. What’s important is the exposure. There will be no more of what might be called “secret-society science” for want of a better term. Everything they publish will have to be fully documented with all code and data available for replication. There will be no more “shenanigans,” as you describe it. Or at least that is my hope.
With Inspector Steve and others on the case, there is a good chance that on the issue of AGW some clarity and light might be shed that will allow mitigation policies to proceed, if necessary.
snip – OT
OK, maybe OT (personal stuff) –
I wonder if this will have any impact on the Mann investigation, which I believe is due in a couple of days. I believe the committee is to decide whether this warrants further investigation.
Is it possible to prosecute in a higher court, with an indictment and a jury.
Steve: It would have to be under a different charge.
A conspiracy to commit an offence is subject to a longer statute of limitations, even if the underlying offence committed by an individual is a misdemeanour.
In other contexts, I’ve read that governments “routinely” use a conspiracy charge to extend statutes of limitations. It would certainly be open to the ICO to examine whether the conduct of Jones and associates satisfied the elements of a conspiracy to commit an FOI offence.
I also noticed that Damian Green in a UK leaking controversy earlier this year was charged with misconduct by a public official (a charge later dropped). While Jones’ role and Green’s role are rather different, to say the least, the Green affair shows the availability of the offence if the elements are satisfied. The statute of limitations for this offence hasn’t expired. Whether the elements of the offence have been met is a question for the ICO and others.
After the passing of the Criminal Law Act 1977. Conspiracy in the UK now only applies in two specific instances:
– Conspiracy to defraud
– Conspiracy to corrupt public morals or to outrage public decency
Neither of which applies in this case despite what various outraged persons may hope based on the plain text.
Defraud requires to prove that the victim was dishonestly deceived by one or more of the parties to the agreement into running an economic risk that he or she would not otherwise have run.
Public morals relates to lewd or disgusting behaviour.
In other jurisdictions conspiracy may well apply – e.g. USA or Canadian law, but not in the UK.
Steve: I’m not sure that you’re right here. See here for example. Under the 1977 Act, there appears to be a statutory offence of conspiracy. The point that you seem to have in mind is that the common law offence of conspiracy was abolished except for the cases you refer to. However a statutory offence was created in their place. This source also says:
Having reread the original act and your commentary I think you are certainly correct. In which case the only issue is whether conspiracy charges can be applied even though the actual crime is no longer prosecutable due to time lapse.
The two charges you mention [conspiracy and malfeasance] are probably not handled by the ICO’s office. Those sound like garden-variety offenses likely initiated by a public prosecutor.
I think a good case can be made that Jones, et Al “conspired” to mislead public perception of climate history – but that’s political advocacy / public relations / propaganda. It’s not likely a criminal offense. Not all conspiracies are criminal in nature.
Supposing Jones et. Al really didn’t want to respond to FOI in good faith. The case against the same for a conspiracy to subvert FOI is weak, because they got David Palmer, et. Al. to handle the rejections for them after consultations on procedure.
[There is one exception to this statement – I do see one single occurence that looks to fit the bill for conspiracy to undermine FOI. I’ll not mention it b/c it could actually be under investigation.]
Whether its appropriate to charge a felony is another thing. We all want to see our adversaries receive their comeuppance, but if the authorities wanted to stick it to Jones, sacking + public humiliation would seem plenty harsh. Bankruptcy from criminal defense + prospective prison time is overkill.
What angles would there be on the US side of the fence related to potential deletion of mails by mann, ammann, wahl?
I don’t know.
I think Mann is at Penn State [possibly covered by Penn FOIA], Wahl is at NOAA [covered by Fed FOIA], and Amman is at NCAR [which, I recall Steve determining, is not directly covered by any FOIA].
Regarding the particular e-mail you’re talking about:
Mann has publicly stated that he didn’t delete the requested e-mails. That could be true [or not]. If he didn’t, I don’t see how he did anything that could get him in trouble with the university or state law. If he did, I don’t know how Penn FOIA applies, if at all. I’d be really surprised if there were serious legal ramifications for an academic deleting e-mails from his state computer.
The worst that could be said re: federal law is that he might have passed on a request from a foreign colleague to a federal employee that the federal employee delete some e-mails. Unless you could show that Mann made some promise in exchange for the deletion [a bribe] I have trouble seeing anything illegal.
Amman apparently received a request to delete e-mails, which he complied with or not. If NCAR isn’t even subject to FOIA, I fail to see the legal problem.
Wahl works for the federal gov’t, at NOAA. Any e-mails on his gov’t computer should be covered by federal FOIA. I don’t think we know for certain whether he used a gov’t computer to send and receive any e-mails in question, so that assumption must be made. Remember, FOIA doesn’t apply to Wahl, it applies to his employer. It’s NOAA that must provide documents; Wahl doesn’t have to – but he can’t destroy gov’t documents.
I don’t know if the NOAA mainframe backs up e-mails, automatically. If so, there couldn’t be any harm if Wahl cleared space on his hard drive, because NOAA would still be able to comply with FOIA requests.
It’s possible that Wahl improperly deleted the sole copies of e-mails, but that doesn’t mean he’d actually suffer prosecution.
I think you’d have to show that he deleted e-mails for pecuniary gain in order to really bring him under fire, legally.
As a reference point, ex-National Security Adviser Sandy Berger went into the National Archives and stole [and subsequently destroyed] classified documents that were alleged to show the Clinton administration’s response to al Qaeda in a bad light. He was convicted and served no jail time.
Nothing stops each employer from treating this as a personnel matter.
I’m sure someone has covered this before, but…
Deleting an email from the email client doesn’t delete it from the server as such. For many companies I’ve worked for, I had to constantly delete emails in order to keep my mailbox under a proscribed limit. If I wanted to keep something I had to save it locally. So it’s irrelevant whether anyone deleted emails from their email clients.
What the email trail DOES show is intent to thwart FOIA requests, and that’s the important thing.
Re: Jeff Alberts (Jan 28 22:28),
Yes. My take has been that ‘they’ wanted ‘plausible deniability’. Playing innocent, deleting emails is sop, stalling for time. It’s hard for me to think they didn’t know about server stores but it wasn’t an important consideration.
Perhaps they were thinking more about questions wrt what’s on their workstations and having fuzzy memories. Dr. Jones wasn’t great about keeping data around, anyway.
It could have been a tactic. Delete emails locally and it will be such a hassle for ‘central stores’ to retrieve them that other administrators will feel more comfortable denying the request.
I commented earlier about the author and his main source.
The use of common law “conspiracy” where a substantive offence cannot be charged was generally deprecated by the judiciary. It’s been the tool of an oppressive executive – unlawful conspiracies to do lawful acts, conspiracies to a public mischief – that sort of thing. This was the reason for the CLA 77.
There’s now a statutory definition of conspiracy, common law conspiracy having been abolished, and in most cases the consent of the Director of Public Prosecutions is required. This is meant to filter out the “shady” cases.
Even if consent were obtained, it would be subject to judicial review and even if the decision survived that a charge of conspiracy where the substantive offence is time barred would, almost certainly, be struck out as an abuse of process.
Misconduct in public office is another common law offence, generally not looked on with favour by the judiciary, it applies to “office holders” under the crown – constables, elected officials, judges – that sort of person.
Re: Steve McIntyre (Jan 27 10:44),
As a defender of civil liberties, I think you have to be careful when you start discussing the government using conspiracy charges to prolong investigations. Its’ a process that can be easily abused. There have been examples of promiscuous abuse of conspiracy laws by governments to destroy people they dislike for political or other reasons. I don’t like the idea of charging people with crimes that they did not commit. For example, if I carefully plan to rob a bank and then have second thoughts based on moral concerns or the prospect of imprisonment, I haven’t committed a crime and should not be prosecuted. I should be left alone with my conscience. While there may be some culpability on the part of Jones et al, I don’t think they should be hounded for years on end, and particularly if we are only talking about misdemeanors.
Perhaps I’m over-reacting, but the goal should be to open up the process and fix the science and not drag people through endless years of investigations and trials over what are essentially questions of scientific integrity.
I agree that, in general, conspiracy charges should not be used to increase the statute of limitations. However, in this case, the law was evidently written so poorly that it cannot be prosecuted. So I would favor applying the conspiracy loophole (if legally possible) until the law is fixed with a reasonable statute of limitations. These scientists seem to think their status is somewhere above God, and it would be good for science if they were reminded that human laws apply to them, too.
The quote is from Robert Bolt so your comment is misplaced. As an aside, I studied the court of King Henry VIII fairly intensively (at Oxford), and would be happy to debate your opinion of Thomas More offline.
Apologies … ignore this comment … ended up in wrong place.
not to worry. we will ignore it.
I knew it was Bolt, but it fits with a general but IMHO mistaken view of More. Suggest a recent book, review it at Amazon and we can carry on there.
The argument by Jones et al that IPCC is an international organization and thus they do not need to respond to FOI about it seem to me invalid because:
1) They were doing their work for IPCC as part of their government funded work and
2) They did work for IPCC at government offices using government computers.
One could apply this logic of Jones to government employees doing work to assist a lobbying organization or Greenpeace, and say the secondary organization is not subject to FOI, or that emails with foreign nationals (like Mann) are outside FOI. But the question is about what did a government employee at a gov’t facility on gov’t time do and say, not who he did or said it to/with.
Steve: Craig, read the ACt which has an exemption if the disclosure would interfere with relations with an international organization. The application of the exemption makes IPCC immune everywhere in the world – this is an issue that I posted on last year some time.
While the libel laws in England appear to be easier to prosecute than in the states, the FOI(A) laws appear to be the opposite. The amendment seems like a fix to a faulty law, and worth the passage.
Smith stated that David Holland’s FOI requests were “not dealt with as they should have been under the legislation”, that it is an “offence for public authorities to act so as to prevent intentionally the disclosure of requested information”, but that the particulars of the offence only came to light after the six-month statute of limitations under the FOI Act had expired. Smith stated that the Information Commissioner’s Office would request a change in the law to enable the prosecution of such time-barred cases.
Huh?
I lack the qualifications to assess whether SOL limitations prevent potential prosecution of the original underlying conduct but I wonder whether new FOIA requests by Steve(or others)for previously declined information might reset the clock. One might use the public e-mails as a guide for creating new specific requests for information to instances where the e-mails reasonably indicate their intent to improperly w/hold information.
If performed in coordination w/an appropriate prosecutoral authority, perhaps a potential second failure to provide documentation would run afoul of existing law.
The following would appear to be on point. It is section 32(1)(b) of the Limitation Act 1980:
32. Postponement of limitation period in case of fraud, concealment or mistake.— (1) Subject to [F1 subsection (3)] [ F1 subsections (3) and (4A)] below, where in the case of any action for which a period of limitation is prescribed by this Act, either—
(a)the action is based upon the fraud of the defendant; or
(b)any fact relevant to the plaintiff’s right of action has been deliberately concealed from him by the defendant; or
(c)the action is for relief from the consequences of a mistake;
the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it. References in this subsection to the defendant include references to the defendant’s agent and to any person through whom the defendant claims and his agent.
(2) For the purposes of subsection (1) above, deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty.
This Act applies to civil proceedings. There is no general period of limitation which applies to criminal proceedings in the UK but there has been a statutory limit of 6 months on very minor offences for centuries.
– snip – editorializing and venting
The worst Jones Et Al can expect is a reprimand from the Commons committee about to investigate the FOIA issue, back to their jobs, and a comfy retirement at 65.
Steve,
I got a sick feeling that the ICO may be saying this.
CRU did not deal with the FOIA properly because they gave the wrong excuse.
Let me clarify here. I entirely agree that, at the end of the day, it’s important that things be kept in perspective. At this point, I’m not advocating anything. We’re just chatting about interesting legal points. I sometimes like to chat about such things. There;s a difference between chatting about it and advocating a course of action.
It seemed pretty silly that a statute of limitations expired before the offence was even discovered. The language in the Computer Misuse Act is different. For the misdemeanour section 1 offence, the statute of limitations begins running when the prosecutor has enough information. Funny that the drafters of the FOI ACt wrote their clause so differently.
A reader observed that judges in the UK don’t generally like to use conspiracy charges to extend statutes of limitations. I can well understand the wisdom of this. However, if the statute of limitations created an impossible situation, as the FOI statute did in this case, then this might be the sort of exception that made sense.
As to what is the just thing to do in the present situation? I don’t know. Perhaps merely memorializing the amendment as the Jones et al (2010) Amendment to the FOI Act might be a sufficient disposition of the matter.
Re: Steve McIntyre (Jan 27 14:04),
Precedent.
Judges hate to create a precedent as judges that follow “pile on”.
If you use the conspiracy argument and win — then you create a precedent that can be used to dispose of all sorts of inconvenient cases. If you leave it go — then the “perpetrator” wins. Interesting conundrum. It seems deliberate.
Have you ever come across the Environmental Information Regulations 2004 (SI 2004/3391),in particular pt.2 reg.4,to see if it has any bearing on all this?
One other point to keep in mind on this, David Holland’s first inquiry was not to CRU, but to the Met Office, concerning John Mitchell’s Review Comments (one of which turned up in the Climategate Letters and which I haven’t discussed much yet.) Holland discussed the matter with Susan Solomon who urged that nothing be provided. See https://climateaudit.org/2008/05/02/no-working-papers-no-correspondence/ Mitchell forwarded the correspondence to Keith Briffa.
You also discussed the CRU element of David Holland’s FOI/EIR requests at https://climateaudit.org/2008/06/20/fortress-cru/ seven weeks later.
I believe these requests (as they have environmental impact) should also have been considered under the european environmental information legislation (with actually has bigger teeth than the FoI).
Maybe they can be nailed under that instead.
What about the refusal to release information to Steve McIntyre dated November 13th 2009? Is that refusal under investigation yet? What would it take to get it to be under consideration?
“What about the refusal to release information to Steve McIntyre dated November 13th 2009? Is that refusal under investigation yet? What would it take to get it to be under consideration?”
It will take another 141 days by my calculation.
snip – politics
I make it 105 days till 13th May. But a lot can happen in the UK during that time (without trying to say what this time.) Were the same reasons for refusal given to Steve as to David Holland?
As folks have noted above, if the statute of limitations applies as Norfolk Plice interpret it, it is hard to imagine any action ever being successfully brought under Section 77. But surely Parliament cannot have intended that a provision to punish concealement would be rendered meaningless by the very concealment that Parliament sought to punish.
A better interpretation focuses on the word “conceals in the act itself. Since each of the various acts is (in the alternative) an offense, we can read the sentence with all of the irrelevant ones omitted, and it would read:
“any person to whom this subsection applies is guilty of an offence if he … conceals any record held by the public authority … with the intention of preventing the disclosure …”
The act at issue is concealment and the question is: when did the act occur? Limitations run from the date (or dates) of the act. Concealment clearly occurred from a short time after the information was requested until the emails were released.
You could debate whether the concealment was a continuing action (vs. viewing it as a lingering effect of a positive action taken earlier), but since the latter position would effectively render Section 77 meaningless, I’d be willing to bet that a court would say that the limitation period began with the release (ie the ending of the concealment) of the emails.
The problem with your interpretation is that the ordinary meaning of ‘concealment’ is ‘hiding’.
If somebody used FOIA to request international agreements re: non-disclosure of climate data, for example, and Mike Hulme took the agreements out of a filing cabinet and dropped them in a shoe box, claiming they were “lost”, that would be concealment. People are allowed to have a sloppy filing system, so you’d also have to demonstrate intent to ‘conceal’ the documents to prevent release pursuant to a FOIA request.
Saying “you can’t have the documents, because I don’t want to give them to you” isn’t concealment.
snip –
Steve: Unfortunately I no longer have a widget to move comments. There is a recent thread about NASA. It’s discourteous to insert NASA material into this thread.
The civic minded rationale for government Freedom of Information acts is to bring government maintained information out in the open, for public scrutiny.
It can get confusing for some of the eco-scientists if they get genius grants from the MacArthur Foundation or all sorts of other lofty professional honors. They forget that its not just about their genius, but if you are a government scientist you have obligations to the public you serve to make data transparent. On a ultra-high stakes, the world is at stake topic like Global Warming, society has a stake in providing for FOIAs and the government scientists in turn (or in the case of CRU those entrusted with public funds) have a professional responsibility of the highest order to disclose their data and methods, fully.
If some of the climate-gaters had taken their legal and ethical responsibilities to comply with and honor FOIAs more seriously, then errors might have been brought to light, at a much earlier point. The civic purpose of FOIAs is to help catch unintended errors and the consequent unintended provision of bad data to policymakers and others in society.
snip – piling on
snip – policy
This website is addictive. It will be a sad day, when the warmers are persuaded to give up.
“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.”
That’s a lovely and bold unequivocal statement by responsible authority. Of course, he could afford to make that statement knowing that he couldn’t do anything about it, nor “prejudice an ongoing investigation”.
But a lovely statement nonetheless that is going to stick in quite a few throats on the other side given who is making it.
they could mean this: CRU denied the FOIA for the wrong reasons, but the right reasons still obtain.
Holland could always re apply and test that theory.
Interesting idea, Mosh. I think Holland should, unchanged, and copy Graham Smith at the same time to make sure Smith has the biggest jump on his 6 month hourglass as possible.
I do not know if any of you have seen the article in the National Post with regards to Andrew Weaver.
Here: http://www.nationalpost.com/opinion/columnists/story.html?id=90f8dd19-4a79-4f8f-ab42-b9655edc289b&p=1
It has a nice line in it:
“In the language typical of an IPCC report, one might say that the radiative forcing created by Climategate and Glaciergate strongly suggest this is very likely to bring about cataclysmic melting of the organization within the next portion of the current decadal period.”
See also
http://www.timesonline.co.uk/tol/news/politics/article7005393.ece
Information Commissioner has the power, but not the resources
The ICO has a pretty broad remit but limited capability to enforce. Politically, this may have been intended.
Along the lines of what Mosher said, the ICO may have advised CRU to reject the FOI requests if the information CRU provided the ICO was incorrect or misleading. This was a potential downside to the multiple requests in that it could have then become considered vexatious, even though an individual request would have arguably been legitimate under FOI or EIA.
An aspect of this, material in my view, that has not yet been discussed in any detail is the fact that IPCC is a (self-appointed?) supra-national body, accountable it seems to nobody – at least in a formal sense.
What the events of the past few weeks show though is that ‘we the people’ have very substantial power to raise questions and to demand an appropriate level of responsibility of organisations like IPCC.
The role of the MSM is supposed to be to be the voice of ‘we the people’, holding those in power accountable by asking pertinent and informed questions.
Until very recently, MSM all over the world (with a very few notable exceptions – UK Telegraph, The Australian, Andrew Bolt, Lawrence Solomon, George Will) has avoided its responsibility. Fortunately, it now appears that may be changing.
Certainly the public mood is changing. In a current poll at The Australian where the question is: How much do you trust scientific projections concerning global warming?
The response:
Completely: 743 votes (9%)
Somewhat: 942 votes (11.41%)
A little: 1236 votes (14.97%)
Not at all: 6333 votes (64.61).
That is, 91% of respondents have reservations (or worse) about the science.
Of course the results of such polls should be taken with a grain of salt.
Scientists in stolen e-mail scandal hid climate data
http://www.timesonline.co.uk/tol/news/environment/article7004936.ece
The Information Commissioner’s Office decided that UEA failed in its duties under the Act but said that it could not prosecute those involved because the complaint was made too late, The Times has learnt…
Professor Phil Jones, the unit’s director, stood down while an inquiry took place. The ICO’s decision could make it difficult for him to resume his post…
OT slightly, but Steve and friends- in researching an article I am writing myself I have just come across an amazing observation by Francis Bacon in 1620 that to me sums up the whole Climategate, IPCC, Himalayagate and all the other gates that I would like to share with you:
“Those who have taken upon them to lay down the law of nature as a thing already searched out and understood, whether they have spoken in simple assurance or professional affectation, have therein done philosophy and the sciences great injury. For as they have been successful in inducing belief, so they have been effective in quenching and stopping inquiry; and have done more harm by spoiling and putting an end to other men’s efforts than good by their own.” (Bacon)
The full text is in translation here: http://www.constitution.org/bacon/nov_org.htm
Just something to reflect on. Best wishes and thank you for all your hard work.
“Steve: Craig, read the ACt which has an exemption if the disclosure would interfere with relations with an international organization. The application of the exemption makes IPCC immune everywhere in the world – this is an issue that I posted on last year some time.”
………………
We ran into an example like this in the late 1980s when a United Nations World Heritage listing was proposed over land we held under Federal Mining Leases. The leases required us to work the land, the WH legislation prohibited all forms of mining. Something had to happen. After days of frustrating discussion of alternatives with QCs we eventually mounted a case on “denial of legitimate expectations”, which is hard. There was some relevant case law from other countries.
Holland must have had a legitimate expectation that the law would work and his input would be processed.
BTW, we won in the lower Federal Court but on appeal ended up in the High Court. The Gov’t amended a law at the last minute so that we could not win. The amendment was related to harm to international relationships and treaty powers.
There are aspects of conduct in the CRU emails that must be close to criminal but I shan’t point to them because that might jeapordise investigation. I have however named some in a submission to the UK House of Commons inquiry.
………………
That said, the purpose is not a witch hunt, but an attempt to change procedures to lessen chances of a repetition.
I am a lawyer in Ohio, so I don’t know British law. I agree with most of what is posted on this site. However, people who are not British lawyers should avoid attempting to interpret British statutes. It is very possible that a court decision interpreted the FOI in an unpredictable way. It is also possible that the FOI or conspiracy statute interacts with other laws in unpredictable ways. There have to be British lawyers (solicitors) interested in this issue. I would seek their input. I am pretty sure that I understand the statutes involved much more than most of the posters here, and I would not venture to make a judgment as to their meaning based on my experiences in dealing with laws outside of my jurisdiction and my surprises as to how weirdly they can be applied.
JD
My thoughts entirely and I’m in Britain!
Both the BBC (http://news.bbc.co.uk/1/hi/uk/8484385.stm and their news bulletin this morning) and The Times (link above, from ‘D’) and the Telegraph (http://www.telegraph.co.uk/earth/environment/climatechange/7088055/University-scientists-in-climategate-row-hid-data.html) are reporting the story this morning. The Guardian also.
They are all saying that UAE broke the FOI rules, according to the Information Commissioner, but that it is too late for any legal action.
Anyway, it is good that the story is getting big publicity in the UK.
There is also a letter in the Times (of London):
http://www.timesonline.co.uk/tol/comment/letters/article7006829.ece
It’s the second letter, from Dr Don Keiller, that is of interest!
Here is another letter, in the Daily Telegraph this time, published: 12:02AM GMT 30 Jan 2010, supporting Lord Lawson’s call for an independent inquiry into globalwarming predictions:
Testing climate prediction
SIR – Your criticism of the predictions by the Intergovernmental Panel on Climate Change (Leading article, January 26) raises questions over the reliability of published scientific research.
In reaching its conclusions, the IPCC has to rely on published papers. The hallmark of a good paper is that it has been peer-reviewed and published in a journal with a high academic reputation.
But that does not mean that the results it contains meet the standard of proof required in a legal inquiry. After exhaustive investigations of the Flixborough chemical plant explosion, for example, the Court of Inquiry reached a conclusion about what happened. That involved much searching scrutiny of alternative theories.
Even then, the court’s conclusion was qualified as being only “within the balance of probabilities”.
Arguments and conclusions that can resist detailed cross-examination by a skilled lawyer are much more likely to stand the test of time than conclusions approved by peer review.
That is why I support Lord Lawson’s call for an independent inquiry into global warming predictions. So much depends on those predictions; it is not enough to leave them to the scientific community.
David Newland
Emeritus Professor of Engineering Cambridge University
Ickleton, Essex
Note that the title in the link is highlighting the first letter which is about an matter unrelated to CAGW. The letter of interest is just over half way down the page.
Here is the link:
http://www.telegraph.co.uk/comment/letters/7104596/A-hole-in-the-evidence-that-puts-the-value-of-the-Chilcot-Inquiry-in-doubt.html
Steve,
All the politics on CA has got me concerned. So much so that I am breaking my own rule, which is: I only post comments on WUWT after the first bottle of Australian red, not on CA. While the political melt down is entertaining, there is a paper attacking Anthony (Menne et all) that is in serious need of auditing….
Re: Konrad (Jan 28 05:48), this is a historical moment to be savoured, witnessing the twilight of the climate gods. Anthony now has a good post responding to Menne; he says there’s more to follow, together with Pielke. Plus, there is a lot of deconstructing to do wrt the whole IPCC science, and more experts I hope will appear, like Paul Reiter (malaria epidemiology) and Nils-Axel Moerner (sea levels). All this needs to come out while the public feel their way into the science they have, with dire consequences, left to the “experts”. Then it will become clear where the audit spotlight needs to be shone next. IMHO.
So now ICO have said withholding info is illegal, maybe now is a good time to renew requests for the raw temperature data. Making sure that a complaint is lodged well within the 6 month limit if they are stalling.
I would expect CRU to be much less cocky and more careful now they now the world’s eyes are upon them.
Presumably Jones has some spare time now he has been temporarily relieved of some of his duties. He should find it easier to deal with FIOA requests.
Britain has no rule against ex post facto laws, so East Anglia can’t breathe completely freely now. If there’s no prosecution, it will be because the Government doesn’t want to prosecute, not because it can’t. For more, see
http://rasmusen.dreamhosters.com/b/2010/01/an-interesting-ex-post-facto-law-case/
As a lawyer, I have real problems with ex post facto laws and have criticized James Hansen for advocating the imposition of ex post facto laws on energy company executives. Not being British, I don’t know whether the Universal Declaration of Human Rights would be incorporated into British law, but it does prohibit ex post facto laws. (See http://en.wikipedia.org/wiki/Ex_post_facto_law#Treatment_by_international_organizations_and_treaties) The same Wikipedia article does state that ex post facto laws are technically permissible in the United Kingdom.
As I said previously, I don’t think it is productive for non-lawyers to try to independently interpret statutes. You guys are so good at uncovering data manipulations that that it what your emphasis should be. Again, I would suggest obtaining the opinion of British solicitors, some of whom would probably be very happy to give you a good read on the law.
Best wishes,
JD
Update here on BBC this lunchtime.
http://www.bbc.co.uk/blogs/opensecrets/2010/01/climate_data_why_ministers_ref.html?s_sync=1#comments
And a BBC interview with David Holland:
http://news.bbc.co.uk/1/hi/uk/8484385.stm
Private prosecutions are permitted. Go to the Clerk’s Office of the Magistrates Court for the jurisdiction in which the offence was committed and “lay an information” – just tell the person behind the counter what your complaint is. They will issue the summons –there’s no charge. However, the Clerks are very familiar with S127, its an old saw, so when you say “on such and such, more than 6 months ago,” they will say “this is a summary only offence, you’re too late, more than 6 months have expired”. You have to respond – “ But this is a continuing offence, on such and such a date they blocked/concealed and continue to block/conceal today”. On the return date you will be expected to prove your case by calling admissible evidence against the persons named in the summons, otherwise it will be dismissed. That’s the hard part.
A commentor said:
It’s good to speculate, though, and people who know the law intimately can reply. The reason we shoudl speculate is that bureaucrats are a lot like airlines. When they don’t want to do something, they say “Legal technicalities” or “Technical problems” and hope you’ll believe their lies about the law or the airplane. So it’s good to ask questions. That’s actually one of the big thigns in life that climatology has taught us.
The problem is that English law relies as much, if not more, on the way the caselaw defines the meaning of statute, as it does on statute itself. With caselaw, it can turn out that the ‘obvious’ meaning of the legislation is completely opposite to the reality.
I hadn’t realised until just now how much caselaw already exists – but then the law is a decade old. It does seem that, based on the caselaw, the ICO is correct. It’s not impossible for that to be overturned, but it means that this isn’t fresh ground. I rather suspect that there are only half-a-dozen or so lawyers in this country (and therefore the world) specialised and expert enough to actually know what the chances of a verdict are if it came to court.
I’m still not sure how the postponement of limitation section of the Magistrates Act fits into all this.
Sorry, correction:
“It does seem that, based on the caselaw, the ICO is correct.”
Make that ‘might be correct’…
The UAE breech of FOI was on the main BBC evening news at 6pm, Harribin or Black (was cooking at the time so not sure which of them was on) was asked a number of questions, didn’t catch it all but he repeated the ‘swamped by FOI requests’ excuse at some sort of mitigation. Also said all governments (and he included China in his list) are committed to the science and to reducing Carbon emmissions but public opinion may not be the same.
Jonathan Leake on having looked so far at WG2 and expecting to find more problems because they neglected peer review and a self-critical stance to present a too-simplistic narrative. Not expecting the same with the science of WG1. Rajendra Pachauri’s position is untenable, a tragic situation for the IPCC, because of the very important work it has done. Thoughtful guy, by no means a zealot for all things sceptical.
There is no doubt that one way forward is to repeat previous FOI requests but to limit those to Steve and others who have been refused. We don’t want to “swamp” them!
Climategate as an Ebook
Thanks mr Pete for CA assistent.
The police statement makes explicit reference to the section of the FoIA 2000 which was broken by CRU. Anyone interested can see the Act here http://www.opsi.gov.uk/Acts/acts2000/ukpga_20000036_en_1 .
Have they anywhere made explicit reference to the Act and section which contains the 6 month limitation? I can’t find it in the FoIA, though I sdmit I haven’t read it cover to cover.
Steve – as others have mentioned on several occasions elsewhere, it’s in the MAgistrates’ Act by reference.
According to his interview on tonight’s pm programme on BBC Radio 4(still available on Listen Again), the specific information David Holland was after was a spreadsheet produced by the IPCC WGI technical support unit (at Hadley Centre) that would help explain which critiques of the Hockey Stick were and were not included within the IPCC review process that went into its brief “retraction” in AR5 in 2007.
He said that UEA were not the first port of call as he had already had his request turned down by the Met Office who were able to wave a Ministry of Defence (the Met O’s parent Department in Government) certificate saying that the spreadsheet need not be disclosed. Now that would be interesting – getting a reaction from the Ministry why they decided to legitimise the denial of access.
That’s around 43 min here. “Emails were hacked into and published on the Internet” is still how the scene is set, never allowing the thought to arise that it was a whistleblower, even though this is by now by far the most likely scenario. One layer of dishonesty on another. But the rest of the report gives a fair crack to David Holland and the findings of the ICO, better treatment than I’ve heard before on the BBC. The government’s chief scientist John Beddington isn’t at all bad after that, emphasizing making all data available in future and how wrong the IPCC were about the glacier claim. Over ten minutes in all.
Also on the Beeb tonight, the TV program Question Time featured (Lord) Nigel Lawson, with the last question about the UEA and FOI. Three out of five on the panel said the right kind of things. The chairman David Dimbleby (one of the most famous names in the British media) quite rightly can’t hide his exasperation with the weasel words of the government minister Ben Bradshaw at the end. Around 49 min here – another good ten minutes.
Background checks. John Sullivan was born in England but resides in New York and isn’t a qualified attorney. Norman Baird lives in London – Primrose Hill, one of my favourite spots – and has taught criminal law for over 25 years. The view the Crown Prosecution Service (CPS) takes will be crucial, as John says. (And who is the owner of climategate.com? It’s a bit strange to mention the site owner at the end of John’s article and not reveal your identity – at least that I can see.)
Has anyone mad an FOI about the recent fiasco?
Well within the SOL.
EJ
There is something very odd indeed about the statement by the Information Commission on its investigation into “Climategate”, the leak of emails from East Anglia’s Climatic Research Unit. Gordon Smith, the deputy commissioner, confirms that the university’s refusal to answer legitimate inquiries made in 2007 and 2008 was an offence under S.77 of the Information Act. But he goes on to claim that the Commission is powerless to bring charges, thanks to a loophole in the law – “because the legislation requires action within six months of the offence taking place”.
Careful examination of the Act, however, shows that it says nothing whatever about a time limit. The Commission appears to be trying to confuse this with a provision of the Magistrates Act, that charges for an offence cannot be brought more than six months after it has been drawn to the authorities’ attention – not after it was committed. In this case, the Commission only became aware of the offence two months ago when the emails were leaked – showing that the small group of British and American scientists at the top of the IPCC were discussing with each other and with the university ways to break the law, not least by destroying evidence, an offence in itself.
http://www.telegraph.co.uk/comment/columnists/christopherbooker/7113552/Climategate-confusion-over-the-law-in-email-case.html
No. The law is relatively straight forward. S77 FoIA 2000 creates 6 offences ( alteration, defacement, blocking, erasure, destruction or concealment of any relevant record ) all of which are triable summarily only (before a Magistrates Court) and carry a maximum penalty of £5000. Imprisonment is not an available disposal. S127 of the Magistrates Court Act 1980, which says “a magistrates’ court shall not try an information or hear a complaint unless the information was laid, or the complaint made, within 6 months from the time when the offence was committed, or the matter of complaint arose”, applies to all 6 offences. So, the information must be laid within 6 months of the commission of act complained of. The only gloss on this is that if the offence is a “continuing offence” time runs only from the moment the offence ceased. Thus alteration, defacement, erasure and destruction cannot be tried if complaint is made 6 months after the day on which those acts are done. Blocking and concealment, however, are “continuing offences” and time only starts to run when the blocking or concealment ceases, which can be when a third party makes the record available.
It is not possible to say whether the Information Commissioner’s opinion is correct or not, no detail of the facts on which he relies has been disclosed. The Commissioner, of course, is not a prosecuting authority. Presumably he simply refers, what he considers prima facie cases, to the Crown Prosecution Service (CPS) to consider prosecution. We do not know whether this has been done or what advice was received from the CPS if it was. If this has not been done it should be done.
More generally, given the systematic approach to non-disclosure agreed between the academic staff and the UAE FOI officers, which amounts to a joint enterprise, it is difficult to believe that all the information improperly blocked or concealed as a result this joint enterprise has been unblocked or revealed not less than 6 months ago. That would require a detailed factual examination. There may be prosecutions in respect of the non disclosures in response to requests by others than David Holland.
A question for readers: I’m 99.999% certain that I saw a copy of the Graham Smith statement as a News Release at the Information Commissioner’s Office website http://www.ico.gov.uk/. When I looked at their press releases today, I didn’t see such a press release. Did anyone else notice whether the statement was posted at the http://www.ico.gov.uk/ website and keep a copy of this version?
Jones on FOI requests
http://www.timesonline.co.uk/tol/news/environment/article7017905.ece
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