“Hard to Imagine More Cogent Prima Facie Evidence”

Another East Anglia misadventure yesterday, this one about the written testimony of Sir Edward Acton (VC, U of East Anglia) to the UK Parliamentary Inquiry about a recent response by the Information Commissioner Office (ICO) to apparent but time-barred FOI violations. Acton decided that a trick was a “good way” to deal with the problem – in this case, the “trick” was mischaracterizing a stern letter from the ICO. Unfortunately for Acton, this particular trick was exposed yesterday by the publication of the original letter on Bishop Hill’s blog, exposing the trick. Here’s how this particular situation unravelled.

On January 28, 2010, Ben Webster and Jonathan Leake of the Times reported here (also here) about the now notorious email from Phil Jones to Mann, asking him to delete emails pertaining to AR4 and to contact Wahl to do the same, noting that Briffa would do the same and that they would ask Ammann to do the same. (The key emails pertained to contact between Briffa and Wahl that were in violation of IPCC procedures.)

A spokesman for the ICO said: “The legislation prevents us from taking any action but from looking at the emails it’s clear to us a breach has occurred.” Breaches of the act are punishable by an unlimited fine. [SM - actually, the maximum fine is only 5,000 pounds.]

In a statement, Graham Smith, Deputy Commissioner at the ICO, said: “The e-mails 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 Act makes it an offence for public authorities to act so as to prevent intentionally the disclosure of requested information.”

He added: “The ICO is gathering evidence from this and other time-barred cases to support the case for a change in the law. We will be advising the university about the importance of effective records management and their legal obligations in respect of future requests for information.”

VC Acton immediately issued a statement on behalf of the university saying that the ICO’s opinion was a source of “grave concern”, claiming that they had always “responded fully to any requests for information”:

The ICO’s opinion that we had breached the terms of Section 77 is a source of grave concern to the University as we would always seek to comply with the terms of the Act. During this case we have sought the advice of the ICO and responded fully to any requests for information.

He added that FOI issues were part of the Muir Russell remit and that the university would act accordingly if the hapless Muir Russell (whose Inquiry secretariat is now known to be staffed by climate activist Geoffrey Boulton’s RSE employees) so requested:

“Sir Muir Russell is currently conducting an Independent Review of the issues surrounding what has become known as ‘Climategate’ and we very deliberately made our handling of FOI requests part of the terms of reference. I look forward to receiving his report and as I have said before it will be published and I will act accordingly if he finds there is indeed substance in these allegations.”

From the context of the ICO reply (dated Jan 29), it appears that UEA contacted the ICO on Jan 28, complaining about the ICO’s statement to the Times. The ICO sent back a sharply worded reply refusing to back off one inch from the statements provided to the Times. (Neither side of this exchange was public until yesterday.)

Yesterday (prior to the publication of the ICO reply), VC Acton submitted the following account of the exchange between the UEA and the ICO to the UK Parliamentary Inquiry:

3.7.6 On 22 January 2010, the Information Commissioner’s Office (ICO) released a statement to a journalist, which was widely misinterpreted in the media as a finding by the ICO that UEA had breached Section 77 of the FOIA by withholding raw data. A subsequent letter to UEA from the ICO (29 January 2010) indicated that no breach of the law has been established; that the evidence the ICO had in mind about whether there was a breach was no more than prima facie; and that the FOI request at issue did not concern raw data but private email exchanges.

This characterization of the ICO letter would obviously leave a member of the Parliamentary Committee thinking that ICO had backed off the statements made to the Times and been an effort to reassure the university. In fact, it was nothing of the sort. The ICO did not back off an inch.

Here is a lengthy excerpt of all the relevant sections of the ICO letter:

I write in reply to your letter of today’s date, faxed to me this morning and copied to the Commissioner.

I think it is important first to distinguish the current situation from your previous experience of dealing with the ICO on an FOI complaint. Complaints are made under section 50 of the Act following refusal by the public authority. If they require a full investigation, we allocate them to a complaints officer and, unless they are resolved informally, a decision notice is issued. The decision notice is the Commissioner’s statutory adjudication on a complaint. In the present case, the section 50 complaint has not yet been fully investigated and there will be exchanges of correspondence between the ICO and UEA as those investigations progress. Unless there is agreement on an informal resolution, a decision notice will be issued. This process is likely to take some months.

Meanwhile, the ICO has been alerted by the complainant and by information already in the public domain via the media, to a potential offence under section 77 of the Freedom of Information Act. The prima facie evidence from the published emails indicate an attempt to defeat disclosure by deleting information. It is hard to imagine more cogent prima facie evidence. Given that this was in the public domain and has been discussed in the media and on various websites over a number of weeks, the ICO’s view, as I indicated when we spoke yesterday, is that the University must have understood that the question whether an offence under section 77 had been committed would be looked at. In the event, the matter cannot be taken forward because of the statutory time limit.

I can confirm that the ICO will not be retracting the statement which was put out in my name in response to persistent enquiries from the Sunday Times journalist, Mr Leake. He was specifically seeking a statement as to why the ICO was not prosecuting under section 77 in this case. The statement was not inaccurate and the ICO is not responsible for the way in which the media and others may interpret or write around an ICO statement.

In response to the specific points which you think should be clarified in a further press statement:

1. As stated above, no decision notice has yet been issued and no alleged breaches have yet been put to the University for comment. That matter has yet to be addressed, but it will be over the coming months.
2. The fact that the elements of a section 77 offence may have been found here, but cannot be acted on because of the elapsed time, is a very serious matter. The ICO is not resiling from its position on this.
3. The ICO’s position is as stated in point 2 above. The statement may be read to indicate that. Under section 77, an offence may be committed by an individual, not necessarily the public authority itself.
4. Errors like this are frequently made in press reports and the ICO cannot be expected to correct them, particularly when the ICO has not itself referred to penalties or sanctions in its own statement. [SM- this is presumably the point about "unlimited" fines as opposed to a maximum of 5000 pounds, but I'm guessing here.]

For all the above reasons the ICO will not be issuing a further press statement covering these points. The ICO does not wish to encourage further media reports on the matter, indeed our original press statement was only drafted for one journalist in response to a specific enquiry.

As Bishop Hill observed, the ICO letter did not characterize email exchanges made in the course of employment by an institution subject to FOI as “private” email. This embellishment by Action appears out of thin air.

The ICO did not say that this was “no more than prima facie”. The term “no more” is a complete misrepresentation of the ICO letter. The ICO said that “it is hard to imagine more cogent prima facie evidence” -(an independent opinion that should be borne in mind when one is evaluating the Penn State Inquiry charged with determining whether there was prima facie evidence concerning Mann on the same matter).

The ICO said “the fact that the elements of a section 77 offence may have been found here, but cannot be acted on because of the elapsed time, is a very serious matter. The ICO is not resiling from its position on this”.

In my opinion (for what it’s worth), Acton should not have attempted to represent the ICO letter to the Parliamentary Inquiry as somehow ameliorating the situation for the University. Acton should have left well enough alone on this topic. He could easily have said the same thing in his Parliamentary submission as he said in his initial statement – that the University was “gravely concerned”, had included FOI issues in the Muir Russell remit and would act appropriately when they received the Muir Russell report.

Instead Acton resorted to a “trick” – what Gavin Schmidt and the climate science “community” call a “good way” of dealing with a problem. Acton’s trick has blown up on him with the release of the actual ICO letter. I think that the “community” would have concluded by now that the public is fed up with “tricks” from the “community”. My guess is that Acton will get a very frosty reception from the Committee on this point.

64 Comments

  1. David S
    Posted Feb 26, 2010 at 10:05 AM | Permalink

    Appears the fish rots from the head. This must be very demoralising for honest scientists at UEA.

  2. Stacey
    Posted Feb 26, 2010 at 10:10 AM | Permalink

    There appears to be a mind set or group think at the UEA which is that the truth and integrity are unimportant also that whatever they say will not be checked.

  3. geronimo
    Posted Feb 26, 2010 at 10:22 AM | Permalink

    My guess is Acton didn’t bother to look at the ICO response, if the committee is serious, and I have every reason to doubt they are, they would simply have pointed to Jones’ statement that he would rather erase the data than give it to people who might check it.

    OT. Steve, but are they now saying that the have all the data, and will share it with the world do you know?

  4. b_C
    Posted Feb 26, 2010 at 10:24 AM | Permalink

    Didn’t Sir Walter Scott have something to say about “tangled webs …”?

  5. Coalsof
    Posted Feb 26, 2010 at 10:28 AM | Permalink

    Why not use this trick? Michael Mann has been successfully making a virtue out of the Wegman report for years now. And doing it with a straight face. There is a Pulitzer prize in this whole mess for some enterprising journalist with the influence to present the true story to the MSM. Where is Bob Woodward for heaven’s sake?

  6. Stew
    Posted Feb 26, 2010 at 10:34 AM | Permalink

    Acton et al don’t seem to realise yet that everything they say for the next few years will find its way to the public domain. The cosy club they strived to join years ago has now gone.

    • philh
      Posted Feb 26, 2010 at 11:20 AM | Permalink

      Nor do they realize how quickly their bone-headed plays will be displayed (pun intended) around the globe. Welcome to the 21st Century, guys and gals.

      • Chants
        Posted Feb 26, 2010 at 11:59 AM | Permalink

        That internet is a mother.

  7. mpaul
    Posted Feb 26, 2010 at 10:58 AM | Permalink

    I was also struck by the phrase:

    “… the evidence the ICO had in mind about whether there was a breach…”

    In US English the phrase ‘had in mind’ is often used as a mild insult to the other party’s intelligence. I don’t know if its the same in ‘real’ English.

    • David S
      Posted Feb 26, 2010 at 12:15 PM | Permalink

      Yes, it is over here as well. There is a subtext of “you don’t understand” lurking in there.

  8. Craig Loehle
    Posted Feb 26, 2010 at 11:10 AM | Permalink

    It is clear these guys have never had a watchdog before. Just a cozy academic department going about its business.

  9. Pete Ballard
    Posted Feb 26, 2010 at 11:29 AM | Permalink

    It has been fascinating to follow the blanket coverage in the UK and compare it to the muted coverage here in the U.S. Putting aside Fox News and the Wall Street Journal, the only real U.S. story I have seen was in the New York Times a few weeks ago which maintained the “settled science” line, vindicated the IPCC and blamed the skeptics for derailing needed policy action. We should start a pool to bet on which caves first, Time, the Washington Post/Newsweek, or the New York Times. My money is on the Post.

    • Ray Girouard
      Posted Feb 26, 2010 at 1:11 PM | Permalink

      Andrew Revkin posted this response on DotEarth yesterday following post #20 at community.nytimes.com/comments/dotearth.blogs.nytimes.com/2010/02/24/signs-of-life-and-change-in-climate-inquiry/?sort=oldest&offset=1 My response follows.

      “As for the failure of the media in uncovering things like the CRU emails, we don’t have insiders sifting for files on others’ servers. Once out, we covered the contents on the front page and in ongoing blog work here. As for challenging scientists when spin mixes with data, that’s been a focus of mine for many years, in print and online.
      Note this piece from well before glaciergate: http://j.mp.dotIPCC

      RayG
      San Francisco Peninsula
      February 25th, 2010
      11:07 pm
      Mr. Revkin re your 2/25 post at 7:09 AM, the issue isn’t the failure of the MSM to uncover the HADLEY/Cru tapes or uncover poorly sourced data, unsupported and unsupportable claims, non-melting glaciers, questionable money trails, etc., but rather the failure to report on these discoveries after someone else made them for you. Afterall, the NYT did not go out and find the Pentagon Papers. They were delivered into the laps of the NYT which did report them. The blogosphere has handed the story to the world’s media. Thus far it has been reported on in the British, Canadian, Australian, New Zealand, Indian German, Finnish and Icelandic press to name a few. Where are is the NYT, WaPo, LATimes, NPR, PBS, NBC, ABC, CBS coverage? Only the Wall Street Journal among the print media and, yes, Fox News among TV news have provided any coverage.

      I am grateful to Al Gore for inventing the internet so that I am able to read the foreign press coverage as well as the blogosphere.”

      I, too, hope that an inquisitive, enterprising journalist will step forward to tell the tale of intrigue, malfeasance and yes, to follow the money. However, I am not holding my breath because my wife doesn’t think that I look good in blue.

      • Jeremy
        Posted Feb 26, 2010 at 6:06 PM | Permalink

        Am I the only one that *wants* the mainstream press in the U.S. to continue with clinging to their absurd individual narratives so that the internet fully replaces them? The game has changed, positions like Revkins are numbered and we’re better off for it.

  10. Posted Feb 26, 2010 at 11:33 AM | Permalink

    Whether it is “cogent” prima facie evidence or not, it is still merely (no more than) prima facie evidence. Acton’s correct about that. The letter gives it away when it discusses “alleged” breaches. Surely that would not be the phrasing if the ICO had ruled definitively. And surely they would not rule definitively if the investigation was still ongoing (as it is).

    Of course, the claim that the original statement could “be read” as indicating that the evidence the ICO quotes is prima facie is a bit disingenuous. I notice they are blaming J. Leake for the mix up. Pretty safe strategy at this point, I suppose, given all his noted screwups.

    Steve: Puh-leeze. The ICO stood by their remarks. They were quoted in the original article as saying: “The legislation prevents us from taking any action but from looking at the emails it’s clear to us a breach has occurred.” Their letter to UEA stated: “I can confirm that the ICO will not be retracting the statement which was put out in my name in response to persistent enquiries from the Sunday Times journalist, Mr Leake.” They do not “blame” the Times (reporters on this story being Ben Webster and Jonathan Leake) for reporting the statement; they stood by their statement.

    • johnh
      Posted Feb 26, 2010 at 11:51 AM | Permalink

      It has to be alleged until the section 50 procedure is exhausted, the UAE has to disagree to an informal resolution before the section 50 decision notice can be published, then the alleged can be dropped and it becomes a breach. Hopefully this can happen before the inquiry is finished.

    • Paul Coppin
      Posted Feb 26, 2010 at 11:57 AM | Permalink

      Michael, “prima facie evidence” has a legal meaning. Here is but one example from jurisprudence: “Prima facie evidence is evidence that, until its effect is overcome by other evidence, will suffice as proof of fact in issue. R. v Davis and Dorion, (1954) 108 C.C.C. 257. (NBSC) i.e. good evidence. “…more cogent prima facie evidence”, is the ICO’s opinion that it will take solid contrary evidence to knock the ICO off its viewpoint. This is NOT the context of “in the first instance….” Back to trolling for real estate.

    • Dave
      Posted Feb 27, 2010 at 1:38 PM | Permalink

      BigCityLib>

      “Whether it is “cogent” prima facie evidence or not, it is still merely (no more than) prima facie evidence.”

      The point you’re missing is fairly simple: you can say that evidence is ‘merely’ prima facie only if you provide an explanation of *why* it should not be treated as evidence of what it appears to be.

      Prima facie evidence is, by definition, evidence that will be accepted as proof in the absence of an explanation. There has been no explanation (yet) so (as of now) the evidence is agreed by all the parties involved (including UEA) to (currently) be proof of the offence having occurred.

      In the absence of any official explanation, I’d love to see you have a go at explaining how the quotes at the heart of this matter could possibly have meant anything that isn’t a breach of the FOIA as described.

  11. Tim
    Posted Feb 26, 2010 at 11:45 AM | Permalink

    Bugs,

    Look up what “prima facie” means: http://en.wikipedia.org/wiki/Prima_facie

    In common law jurisdictions, prima facie denotes evidence which — unless rebutted — would be sufficient to prove a particular proposition or fact.

    i.e. the ICO is saying it has proof a breach occurred.

    • Tim
      Posted Feb 26, 2010 at 11:50 AM | Permalink

      Sorry I meant Bigcltiylib not Bugs.

      In any case, there are lots of cases where alarmists can have a legimate difference of opinion. But the attempts to spin the ICO statement are quite rediculous. The ICO and everyone else with an open mind who reads the emails sees clear evidence of an intent to break the FOI laws. It is realize pointless to deny it.

    • Eric
      Posted Feb 26, 2010 at 12:18 PM | Permalink

      I am not an attorney so I should probably keep my mouth shut but I am pretty sure that the ICO they would not say they have “proof” of anything.

      what they are saying is that there is sufficient evidence that they would have intiated a formal investigation if the statute of limitation had not expired.

      In other words they are saying that it certainly looks like there was a violation but that they are prevented from seeking further proof.

      • Dave
        Posted Feb 27, 2010 at 10:35 AM | Permalink

        I don’t think that’s quite correct. Broadly, I agree, but I don’t think the ICO is prevented from following it up in an investigatory sense – only from pursuing a prosecution.

        As I understand it, the prima facie evidence – as has been explained elsewhere, simply evidence that ‘on the face’ of it seems to be proof – is more than sufficient to put someone in court and require them to explain it away (if they can). If there is a reasonable explanation, nothing stops it being given without a court case – if it existed, the ICO would happily accept a good explanation, or allow a possibly-reasonable one to be tested in court. The time-barring does nothing to negate the need for the explanation.

  12. Eric
    Posted Feb 26, 2010 at 11:52 AM | Permalink

    Regarding NYTimes coverage. Pete, you are right about the material published under control of their editorial board but the tone at Dot Earth has most certainly be impacted by the events of the last months.

    Regarding ICO ruling definitively. As I understand it, the only definitive ruling the ICO has made is that there can be no investigation despite the strong prima facie evidence because the statute of limitations has elapsed. The fact that the ICO letter cites this case as reason for justifying change in that statue of limitation is a strong statement of how compelling that prima facia evidence is to the ICO.

    Indeed it is “hard to imagine more cogent prima facie evidence”.

    and cue Yakkety Sax

  13. Posted Feb 26, 2010 at 12:04 PM | Permalink

    Tim,

    Nevertheless as far as I know they have denied it (arguing that no emails were in fact deleted) and the ICO is careful to use such circumlocutions as “may have occured”.

    Eric,

    No, the letter is quite clear that the (section 50) complaint is still under investigation.

    • Posted Feb 26, 2010 at 12:12 PM | Permalink

      Re: Bigcltiylib (Feb 26 12:04),
      Rubbish. The letter says the ICO is not retracting its statement made to the Sunday Times and that statement is not inaccurate. That statement said “looking at the emails it’s clear to us a breach has occurred.” and “The e-mails 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.”

      • Posted Feb 26, 2010 at 12:23 PM | Permalink

        Well, that’s the interesting part. The letter says that the origonal statement from which you quote “may be read” to reflect point 2) of the letter

        “The fact that the elements of a section 77 offence may have been found here,but cannot be acted on because of the elapsed time, is a very serious matter.”

        Note the MAY HAVE BEEN FOUND. And this is where they blame Leake for any misinterpretation. Sounds like the ICO is doing some backpeddling, if not retracting.

        • Paul Coppin
          Posted Feb 26, 2010 at 12:47 PM | Permalink

          [...]
          ““The fact that the elements of a section 77 offence may have been found here,but cannot be acted on because of the elapsed time, is a very serious matter.”

          Note the MAY HAVE BEEN FOUND. And this is where they blame Leake for any misinterpretation. Sounds like the ICO is doing some backpeddling, if not retracting.”

          [rolling eyes icon] They’re not discussing the interpretation of the offence here, nor are they backpedaling, nor are they assigning blame, nor retracting anything. They are commenting [only] that if a section 77 violation has occurred (whatever it may have been), the fact that the time has run out for action on it is a “very serious matter”. Back to remedial reading comprehension 101 for you. BTW, you mispelled your website name… [rolling eyes icon, again]

        • Posted Feb 26, 2010 at 12:54 PM | Permalink

          Remedial reading for who? “May have found” is a lot weaker than “found”. Indeed, “if a violation” occured it would be a serious matter. They’re not saying it did.

        • Paul Coppin
          Posted Feb 26, 2010 at 12:56 PM | Permalink

          Hole, shovel, digging deeper, capiche?

        • Duster
          Posted Feb 26, 2010 at 1:42 PM | Permalink

          The ICO cannot, as a matter of law, assert that a violation DID occur. That is a matter that could ONLY be determined in a court. If the ICO were so foolish as to assert that a violation HAD occurred and then a court decided otherwise they would potentially be exposed to a suit for liable or slander. Read with that necessary legal caution in mind, the ICO is telling Acton that in the view of the ICO a violation clearly DID occur and that only the sunset clause in the British FOIA saved their bacon.

          We civilians often get impatient with lawyers and courts seemingly unwilling to call a horse a horse, but there are reasons for that, harking back to mob violence, lynchings, and witch burnings.

        • Posted Feb 26, 2010 at 1:49 PM | Permalink

          But in the first statement it appears to do just that.

          “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”.

          That might be the reason behind the back-peddling.

        • Paul Coppin
          Posted Feb 26, 2010 at 2:19 PM | Permalink

          Michael, what “back-pedaling” are you talking about? Really, you’re way in over your head here.

        • Posted Feb 26, 2010 at 3:28 PM | Permalink

          I’ll try to explain this slowly. Here’s a bit from the letter:

          “2. The fact that the elements of a section 77 offence may have been found here,
          but cannot be acted on because of the elapsed time, is a very serious matter.
          The ICO is not resiling from its position on this.

          3. The ICO’s position is as stated in point 2 above. The statement may be read
          to indicate that. Under section 77, an offence may be committed by an
          individual, not necessarily the public authority itself.”

          What he’s saying in 3. is that the original statement (“the statement”) “may be read” as the statement in point 2. In other words, in the ICO’s view, the statement is now taken to mean 2. But of course 2. is a lot weaker than the original.

          hence backpeddling.

        • toxguy
          Posted Feb 26, 2010 at 4:56 PM | Permalink

          Now can you please explain what the definition of “is” is.

        • Dave
          Posted Feb 27, 2010 at 3:02 PM | Permalink

          You’re making very little sense here. The statement ‘may be read to indicate that’ does not imply exclusivity.

          I would note that my interpretation of the ICO’s letter is that it strongly reiterates the points from the first letter, whilst providing the usual polite opportunity for the addressee to back down gracefully. I think it would read that way, too, to anyone who has experience of formal correspondence.

        • JimS
          Posted Feb 26, 2010 at 1:50 PM | Permalink

          I’m not a lawyer but I believe that Jones’ email to Mann requesting the deletion of emails IS a violation of the law and constitutes a criminal act. Whether the emails were deleted or not is largely irrelevant.

          I also find it stunning that Jones could make such a request to Mann without fear that Mann would expose him for having done so. That tells me a great deal about the mind set of the players involved in this little morality play.

        • Posted Feb 27, 2010 at 12:16 AM | Permalink

          And depending on the conspiracy provisions in British law, it may well be a prosecutable offence for which the statutory limitation has not run out.

          Steve: it probably has. Jeff Id has a discussion somewhere.

    • Tim
      Posted Feb 26, 2010 at 12:17 PM | Permalink

      Then where are the emails? They were subject to an FOI request that was denied. If they were deleted the law was broken. If they still exist then the law was broken because they were not provided. Even if there is some technically the intent is clear and that alone is enough to deserve a serious reprimand.

    • Eric
      Posted Feb 26, 2010 at 12:31 PM | Permalink

      That is correct, I am referring to section 77 issues.

      But I confess that I don’t really understand which is what so I will return to lurking until I understand what the difference is between sections 50 and 77.

    • Eric
      Posted Feb 26, 2010 at 12:55 PM | Permalink

      here is a useful resource :)

      The UK’s Freedom of Information Act 2000

      In my non attorney reading…

      Section 50 deals with the response to a complaint that information held but a public authority and subject this act was not provided.

      Section 77 deals unlawful manipulation of information to prevent its release under that act.

      Here is my non attorney interpretation relevant to this case.

      ICO is investigating a Section 50 complaint that UEA did not release requested information as required by law.

      No person or organization can be investigated tampering with information to prevent its release under a section 77 complaint because the statue of limitations has expired.

      that and $3 will buy you a latte.

    • JCM
      Posted Feb 26, 2010 at 4:08 PM | Permalink

      Mr Murphy just think ‘mens rea’. Not hard to figure the mind of Jones.
      If he was a Tory in Ottawa you would be all over him, and with good cause.

  14. IanP
    Posted Feb 26, 2010 at 12:42 PM | Permalink

    All this is very interesting, but there’s a very long way to go to make an impact on the politicians who, lets face it, are the ones spending our money. On the BBC Parliament Channel yesterday, I watched the responsible Minister, Ed Miliband, brush aside any suggestion that AGW was in any way less than 100% happening. What’s worse, he seemed to have the ear of most MPs. Ms Winterton, a Tory MP, was again shouted down when she dared to query the approach.

    To illustrate the urgency, I also read yesterday (truth or otherwise being checked by my MP) that Tata has been given £1billion carbon credits to keep a UK steel plant running, but has just closed it down anyway and has pocketed the money. Sick, if true.

  15. Posted Feb 26, 2010 at 12:47 PM | Permalink

    Steve,

    One of the lines of argument on this ( see nick stokes on Lucia’s) is that there was no FORMAL finding of a violation.

    A neat trick. The ICO has a prima facia case. They look at SOL and decide the best course of action is to recommend changes to the law.

    BigcityLib and Stokes parse the failure on the ICO’s part to file a meaningless finding of wrong doing as a victory.

    It’s like this. On his deathbed 50 years hence Bigcitylib confesses to to stealing the CRUTAPE emails. The police investigate and find a copy of the files on his computer dated Nov 13th, 2009. Since bigcity is in the big castle in the sky, the police wisely decide not to pursue the case or file charges. They make their discovery know. And bigcity’s friend defend his honor by claiming that he did nothing wrong because there was no finding of wrong doing.

    If UEA thought it were blameless, then they should push the ICO to make a finding.

    • Paul Coppin
      Posted Feb 26, 2010 at 1:10 PM | Permalink

      “A neat trick. The ICO has a prima facia case. They look at SOL and decide the best course of action is to recommend changes to the law.”

      This really is the only course of action. The summary conviction restriction has eunuched them legally. The IPO’s statment of …cogent prima facie evidence is the IPO’s bureaucratese for saying “we’ve got a prosecutable case against you, but because we can’t prosecute you, the only option is to change the law so that when we get another one of these we can prosecute”. This has moved past the facts of the emails to some extent, to the general case of how to deal with obvious failure of the FOI legislation in the future.

    • Jimchip
      Posted Feb 27, 2010 at 1:47 PM | Permalink

      Re: Steven Mosher (Feb 26 12:47),

      People can argue “no formal finding” but it looks to me that ICO isn’t done with the whole issue yet. My take on their submission to CCE was that they volunteered to keep going. It takes time to unravel a (poorly) woven piece by pulling on the loose threads. It could turn out that many at UEA won’t like “Formal” when it hits. meh, just trying to be optimistic.

  16. Steve McIntyre
    Posted Feb 26, 2010 at 1:06 PM | Permalink

    Mosh,

    the UEA seems to have fallen for the same sort of futile wordsmithing that Nick Stokes and BCL attempt here. Nick Stokes does this all the time.

    Here’s my prediction: if the UK Parliamentary Inquiry actually turn their mind to what the UEA VC said in his letter – and there’s little guarantee that they will – they will be angry with the VC’s characterization of the ICO letter. They are lawyers and understand perfectly well what prima facie evidence is – and what it means for a tribunal to say “more cogent prima facie evidence” can scarcely be imagined. The Nick Stokes/BCL approach would just make them mad.

    • Gil Grissom
      Posted Feb 27, 2010 at 3:22 AM | Permalink

      Since you mention Nick Stokes’ wordsmithing here, I am not sure that you and other readers here are aware that the name “Nick Stokes” is probably wordsmithing in itself. To use an internet handle such as “Bigcitylib” is one thing and understandable, but to claim to have a specific and legitimate proper name such as Nick Stokes is somewhat dishonest. “Nick Stokes” is a character on the hit U.S. television show “CSI: Crime Scene Investigation” played by actor George Eads. I’m sure our alarmist friend Nick views himself as some modern day “CSI” version of Sherlock Holmes who will discover the hidden link between you, Anthony, and other skeptics to Big Oil or some other such nonsense.
      Nick, now that the beans have been spilled due to Climategate, why don’t you put your CSI skills to work finding the data that Steve has requested in his FOI requests? You’re not really some sort of a cop in real life, are you Nick? MI5 maybe?
      Now get back to work on that casino robbery case I gave you Nick, somebody is trying to steal a whole lot of money!

      Gil

      • Prof Langston
        Posted Feb 27, 2010 at 2:28 PM | Permalink

        Like the name, the wishes that are expressed, about how this supposedly all “nothing” are fictional in nature. They have no foundation. Steve’s right, at this moment, playing a political campaign, trying to misrepresent solid fact, is the realm of the delusional. Maybe he thinks he is Nick, but sadly, he lacks even the common sense and down to earth observational acuity of even the fictional character.

    • Posted Feb 27, 2010 at 1:19 PM | Permalink

      I hate to make generalizations but they all seem fundamentality unable to see past the next step in their behavior. They are horrible liars. Like with Jones saying that the agreements precluded release to “non academics.” What a horrible lie as lies go.
      It’s obvious how we would respond. In all cases they act as if there is a PRESUMPTION OF TRUST. And so they think no one will catch them out. Now, WRT Nick, I fully expect him to say this one day:

      It depends upon what the meaning of ‘is’ is.

      It’s one thing to engage in this behavior when sex is involved, but science?

  17. Brooks Hurd
    Posted Feb 26, 2010 at 1:20 PM | Permalink

    Graham Smith of the ICO was careful to craft a letter which stayed within legal boundaries. One can parse his words to make it appear that he is uncertain of a violation. The tone of his response is not favorable to VC Acton’s statement and he certainly believes that the FOIA has not been followed by East Anglia.

  18. Harold morris
    Posted Feb 26, 2010 at 2:00 PM | Permalink

    Regardless of the legal discussion above of the FOI handling of the subject request, does anyone have a pending FOI request at CRU for the same data/emails?

    Surely CRU would be expected to observe the law in response to a current request?

  19. Posted Feb 26, 2010 at 2:32 PM | Permalink

    I cannot believe that the ICO letter did not characterize email exchanges made in the course of employment by an institution subject to FOI as “private” email.

  20. JCM
    Posted Feb 26, 2010 at 4:20 PM | Permalink

    Don’t need to be a PhD to see where the ICO is headed. They know the UK legislation is weaker than the US and they intend to use this as part of a campaign to get better legislation. They are not happy that UEA is trying to make them look foolish and they intend to make an example of UEA.

  21. Jean Demesure
    Posted Feb 26, 2010 at 6:58 PM | Permalink

    Maybe it’s a stupid question but I wonder why, since the disclosure of correspondance between Briffa-Jones to Wahl-Mann in the IPCC authoring process has been evaded by Jones et al in Holland’s precedent FOI request, nobody has resubmitted this FOA request against ?

  22. Posted Feb 26, 2010 at 8:27 PM | Permalink

    Hilarious.

    No one with a complete and accurate understanding of the English language could possibly have written, or even approved, the phrase “the evidence… was no more than prima facie.” To the normal, non-lawyer English speaker, prima facie evidence (whatever its precise legal definition) has always meant; the best evidence there is. You could only write this phrase if you’d never encountered the word.

    Vice-Chancellor Acton – the great-grandson, it turns out, of Lord Acton himself is obviously not Oxbridge material. Yet curiously enough, his PhD is from Cambridge itself. The trouble, therefore, must rest with his flacks – who are understandably overworked.

    And our Vice-Chancellor’s specialty? You guessed it: Soviet history. Frankly, I fear VC Acton may have learned a little too much from his own profession…

  23. Tom FP
    Posted Feb 26, 2010 at 11:43 PM | Permalink

    Booker claimed to have confusion over the time limit.

    http://www.telegraph.co.uk/comment/columnists/christopherbooker/7113552/Climategate-confusion-over-the-law-in-email-case.html

    Which would put the cautious language of this letter in a rather different light. If you are still in fact contemplating a prosecution, you don’t want to ruin your case by making prejudicial statements.

  24. Tom FP
    Posted Feb 26, 2010 at 11:49 PM | Permalink

    Sorry that shhould have been “Booker claimed to have FOUND…”

  25. justbeau
    Posted Feb 27, 2010 at 8:34 AM | Permalink

    -snip –
    Sir Acton has done his own credibility no favors by a lame-brain attempt to mischaracterize the views of the ICO, thereby inviting more attention to the ICO’s views and highlighting the university’s disrespect for FOI responsibilities. Thanks a lot, Sir Edward!!

  26. Peter Oneil
    Posted Feb 27, 2010 at 7:17 PM | Permalink

    Cogent is defined as CLEAR,LOGICAL and convincing. Add this to Frima Facia (at first view) and it sounds like FAIR COP to me.
    But, they still just don’t get it do they. I genuinely believe that they think that they have done nothing wrong and that is the most frightening aspect of this whole affair.
    I defy any fairminded individual to read the e-mails and make any attempt to justify the actions of the members of this sick cabal.
    However, the cracks are starting to appear and the wheels are loosening on their band waggon. Pachuari will be gone by this time next month and i doubt that phil jones will escape the slowly tightening net.
    I take my hat off to all those people who have spent a great deal of time and effort on my and a lot of other peoples behalf, for persevering with this just cause. We really do appreciate the IMPORTANCE of what you are trying to do.

  27. Posted Feb 27, 2010 at 7:22 PM | Permalink

    Just out from Channel 4 UK:

    But Steve McIntyre, a Canada-based sceptic deeply involved in challenging the climate change consensus, has unearthed an apparent copy of Professor Boulton’s CV from 2007 in which the last line says he [Boulton] was a “contributor to G8 preparatory groups and Intergovernmental Panels on climate change”.

    It is not clear whether this is meant to refer to the IPCC itself but the curious case of the purported CV has been leapt upon by many in the sceptic blogosphere who are convinced Professor Boulton has something to hide.

    In a statement, the email review panel said: “Professor Boulton has had no formal contact with the IPCC. He has not been a member of the panel nor made any submissions to it”.

    And when Channel 4 News asked about the claim on the CV, we received this puzzling reply: “The CV published online today is not correct. Professor Boulton has no idea where the final statement referring to the G8 and IPCC comes from, or where/when it has been added. The statement has not featured in his previous CVs.”

    Professor Boulton sent Channel 4 News a copy of his 2007 CV which did not have the final line. Asked whether he was implying dirty tricks we received another email: “Professor Boulton has no CV with that line on it, because there is no reason for it”, adding: “people are free to draw their own conclusions as to why it seems to have appeared now”.

    http://www.channel4.com/news/articles/science_technology/sceptics+seek+second+climategate+panel+casualty/3564682

  28. Jimw
    Posted Feb 28, 2010 at 3:57 AM | Permalink

    Has this any bearing on the GISS and CRU data?
    “The U.S. Office of Research Integrity has found the removal of samples from a data set in order to reach a desired conclusion to be grounds for disbarment from funding.
    http://en.wikipedia.org/wiki/Scientific_misconduct

  29. Larry Butler
    Posted Mar 1, 2010 at 3:14 PM | Permalink

    http://www.yorkshireeveningpost.co.uk/latest-national-news/Climate-change-data-was-withheld.6113975.jp

    I found this and thought you’d be interested in its content. Thank you for all you do to save us from ourselves.

6 Trackbacks

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    [...] January 28, Ben Webster and Jonathan Leake of the Times reported (see links here) that it was the ICO’s view that East Anglia had violated the FOI act, but they could not be [...]

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