At the hearings yesterday, after being stonewalled by Muir Russell about Muir Russell’s refusal to investigate Jones’ delete-all-email request, Stringer turned his attention to Acton, who claimed that he had carried out his own investigation, the results of which were on the UEA website. Here is a rough transcript:
Stringer – … Prof Acton, are you satisfied that these questions weren’t asked? That people in your university were sending out emails suggesting that emails be deleted and that it hasn’t been investigated.
Acton – It has been investigated. I’ve asked them and they’ve assured me that they’ve never knowingly deleted emails subject to [inaudible]
Stringer – Did you ask them under caution?
Acton – My relationship is rather different. It is part of my duty to address that kind of spirit and make sure that I drive it out and establish the fact. Can those emails be produced? Yes, they can. Did those might have deleted them say they deleted them? No, they say that they did not.
Stringer – and you’ve recorded those meeting with Prof Jones
Acton – – if you examine our website
The relevant location at the UEA website appears to be a July 26, 2010 statement by Jones as follows:
Phil Jones comments on questions concerning deletion of emails
Mon, 26 Jul 2010“As I have said on a number of occasions I do delete emails from time to time – this is usually as part of a regular clear out but sometimes as I go along”.
“Most people seem to do the same to keep their email account manageable and because we are regularly reminded when storage space on our email system is nearly full”.
“There is also an environmental and economic cost to storing emails so it seems to me that it is not good practice just to keep everything”
“It would be very difficult to guess what might be asked for in future so I don’t go around deleting emails just because they might be asked for at some point.”
“I have previously confirmed that I have never knowingly deleted an email that was the subject of an active Freedom of Information request and neither have I deleted data”.
Watch the pea very carefully. Acton is on the thimble.
The emails in most controversy were the surreptitious 2006 emails between Eugene Wahl and Keith Briffa, described by Fred Pearce as a “subversion” of IPCC policies. In these emails, Eugene Wahl substituted his self-serving assessment of the impact of the MM2005 critique of MBH for the assessment that had been distributed to external reviewers in the Second Draft. Although Jones was often and perhaps even usually copied on Briffa emails, Jones wasn’t copied on these furtive emails between Wahl and Briffa.
Let’s look at the narrowest possible construction of Jones’ statement as it pertains to the delete-all-emails incident. At the time of Jones’ delete-all-emails request, it’s possible that the only copies of the furtive Wahl-Briffa exchange were held by Wahl and Briffa, both of whom were asked by Jones to delete the exchange.
Jones’ carefully crafted statement says only that he hadn’t personally deleted the Wahl-Briffa emails. It is silent on whether Briffa and/or Wahl acted on Jones’ request to delete the email record of their surreptitious IPCC correspondence.
Nor does the East Anglia statement explain Jones’ email to University officials that Briffa should (untruthfully) deny the existence of the Wahl-Briffa correspondence, an important part of this incident that Muir Russell didn’t investigate.
The University of East Anglia promised an “independent investigation” into the emails. Yesterday, Muir Russell confirmed what everyone knew – the he didn’t actually carry out an investigation. The only person who claimed to “investigate” was Acton – neither “independent” nor an “investigation”.
Climate Audit 
89 Comments
To repeat what I said earlier, in the end, it appears we have had inquiries for their own sake, the goal of which was to look furtively in the wrong direction and find nothing.
Any claim by Jones, Wahl, and Briffa that either of the investigations clears them of misconduct will be very weak tea indeed.
As you have pointed out, the whole investigation since the start has been a ‘shell game’ and as such it is pointless trying to follow the pea- the punter is guaranteed to lose…
http://en.wikipedia.org/wiki/Shell_game
“Prof Acton, are you satisfied that these questions weren’t asked?”
I don’t understand that question at all. Doesn’t seem to make any sense.
My interpretation (speaking as a linguist) would be that it means: ” … are you satisfied (i.e. ‘comfortable with’) [with the fact that] these questions weren’t asked?”
Not ideal phraseology in this context, I would suggest.
I understand that “satisfied with” means what you’re saying, but the phrasing is very strange. If Simon’s response below is correct, then it was perhaps a semi-sarcastic question based on the context of the interview at that point.
I interpreted this as borne of Stringer’s frustration with Acton’s habitual ducking and diving.
The question makes sense, but implicit in there is that either Stringer believes Acton did not WANT the question to be asked of Jones, or that Stringer suspects that the question was asked but that the answer, and the question that prompted it, were purposefully omitted from the reports.
“Most people seem to do the same to keep their email account manageable and because we are regularly reminded when storage space on our email system is nearly full”.
This is true when speaking of individual email accounts, but not the “email system”. Each account, in an Outlook environment at least, is assigned a certain amount of space. But he should also know that deleting from your inbox or emptying the trash isn’t the same as deleting from the server. Jones couldn’t have deleted emails from the server without someone else’s help. But his intent was clear, and that’s what needs to be investigated.
Jeff, I’ve been configuring/maintaining mail systems off and on for about 20 years. These have all been based mainly on unix servers and now linux servers. The mail clients generally use POP and/or IMAP protocol to access the mail.
With IMAP, when you delete the mail it simply moves it to a designated trash folder. When you empty this trash folder it deletes it from the server.
POP is different in that it doesn’t have the concept of folders so when your mail client deletes an email it will be marked as deleted and then cleaned up later when the session ends.
In both cases the email is deleted from the server
My wife works at a Univeristy and gets the same kind of periodic requests to delete stuff to keep under quota, which she does. Once something important was deleted and IT were able to retrieve it from the ‘archive’. Exchange based system.
This is the same at my company. IT departments routinely back up the email server on some type of archival system. This does not mean that EAU archived all the Wahl-Briffa emails, but it is likely that they did.
I’ve worked for two major telecom (2 of the “big three”) companies in the last 20 years. I’m sure that the older systems in use 20 years ago probably didn’t have much in the way of archiving or saving after deletion from the mailbox, but it seems that since Sarbanes-Oxley, things would have changed. Our company had to be SOX compliant, but we still had to delete email regularly to keep mailbox from filling up (exchange quota). Anything we wanted to save needed to be moved to a local folder, not one on the exchange folders. So it would seem that even if something is “deleted”, it can still be retrieved. Otherwise SOX compliance is meaningless.
If we’re dealing with an MS Exchange-based email system, which is likely but not certain, then there is a fairly low practical limit on mailbox size per user to prevent the Mail Store – the entirety of the mail system data – becoming too large to work properly.
That’s why, despite the cheapness of hard disks, we still have limits on email account storage.
However, and this is important, reaching your mailbox limit should *never*, *ever* result in deleting emails. They should be archived – that is, hived off into a non-live system to reduce the load on the live system – but never deleted.
These archives are not the same as backups. A backup would be a snapshot of the mail server as it was on X date, so it would be possible to restore it somewhere and grab some deleted emails out of it, but it’s not normal to delete emails in the first place. I have worked in many offices where that would be considered gross misconduct.
Is it really possible for a working scientist in the 21st century to truly believe “There is also an environmental and economic cost to storing emails[…]”? For years it has been impossible to buy a disk that will hold less than 100s years-worth of even prolific emailings. Does he think it uses more electricity to spin a disk with more data on it? He’s clutching at ridiculous straws.
Roy, my thought exactly only you expressed it better than I would have.
Not to mention the CO2 exhaled whie doing the work of deleting the emails.
I wonder what Jones means by “active” in “active Freedom of Information request”.
David, excellent observation.
Excellent parsing as usual. The Parliamentary Committee could certainly have used a QC or someone trained in cross-examination.
Jones was the head of the unit. He was directing people to delete emails that were subject of a FOIA. It makes no difference whether he deleted emails on not. The issue is that he was directing people to violate the law.
It would be like Andy Fastow (former CFO of Enron) telling people to move messy assets to off-balance sheet accounts in order to hide losses from investors. It matters not one whit whether he actually made the journal entries himslef or not.
Its amazing to me that this point seems lost on Acton and Davies.
Indeed, the question of whether Professor Jones deleted any e-mails is not the issue. There is prima facie evidence from the CRU e-mails that Jones asked other people to commit an offence. At the first HoC S&T Inquiry Jones admitted that he had indeed sent this e-mail.
As Steve keeps saying you need to watch the pea.
The law in question only binds the relevant organisation and its staff. It would not have violated any law had Mann or Wahl deleted emails involved in a FOIA request to UEA.
Steve: Nick, you say things that you don’t really know anything about. If Wahl or Mann were found to have “conspired” with Jones to commit an offence under UK law, would they be liable? I don’t know. If it were a securities case, I can think of situations in which a US citizen could violate a UK law. My guess is that there are circumstances and the facts in which Wahl or Mann could commit an offence under UK law, but I haven’t parsed the logic, nor, from your track record on legal speculation, I suspect, have you. To date, there hasn’t been any investigation of Jones’ actions, let alone Wahl’s.
Re: Nick Stokes (Oct 28 13:28),
Do you find solace in that, Nick?
Just trying to stick with the facts.
And it wouldnt have violated the US version or the IPCC rules?
Not impressed with your logic
Well, Steve, here is the current UK FOIA legislation. EIR is similar. The relevant section is 77:
77. Offence of altering etc. records with intent to prevent disclosure.
— (1) Where—
(a) a request for information has been made to a public authority, and
(b) under section 1 of this Act or section 7 of the M40 Data Protection Act 1998, the applicant would have been entitled (subject to payment of any fee) to communication of any information in accordance with that section,
any person to whom this subsection applies is guilty of an offence if he alters, defaces, blocks, erases, destroys or conceals any record held by the public authority, with the intention of preventing the disclosure by that authority of all, or any part, of the information to the communication of which the applicant would have been entitled.
(2) Subsection (1) applies to the public authority and to any person who is employed by, is an officer of, or is subject to the direction of, the public authority.
Subsec 2 is quite explicit. FOIA requires an authority to produce records that it is holding. It doesn’t make any requirement about records that it is not holding, and doesn’t impose any limits on people even within England, who are not subject to the direction of the authority.
In the US there are legal consequences for intentionally deleting email that you might reasonably be expected to believe to be the subject of any current or future civil action.
Microsoft and Intel are just 2 of the companies that have been caught doing this.
I have no idea whether deleting emails that you might reasonably expect a FOI request for would fall into this category but it isn’t a huge step. Especially since the email from Jones demonstrates intent.
As I understand it, deleting mail from your personal inbox probably doesn’t count as this is a perfectly ordinary house-keeping operation. The user can and often does assume an archive is kept elsewhere (server/backups). If the institution also deleted the email from the server, it will have broken the law, as they would have to keep records for a certain period of time in order to comply with their legal obligations. If Jones intention was to remove all copies, then that would be evidence of conspiracy. However you cannot prove that was his intention, although to most people this would appear to be the case.
IANAL (I Am Not A Lawyer), so all of this is simply further speculation :p.
Nick:
I am not an expert on UK law, but it tends to be quite similar to US law, for obvious geneaological reasons.
I believe you’re correct that the non-UK parties’ [possibly deleted] emails are not covered by UK FOI – so UK FOI law would not apply to them.
In the US, conspiracy to commit a misdemeanor can be a felony. The conspiracy is often thought to be worse than the crime, itself. [conspiracy could certainly be applicable to Jones and Briffa, for example – who are both government employees with government documents in their custody…]
I don’t see how the non-UK participants to the possible deletion furthered the destruction of protected UK documents, so I don’t immediately see how they would be part of the conspiracy. [except that, by destroying their copies of the documents, they would presumably make it more difficult to detect Jones’ and Briffa’s destruction…]
I haven’t seen Steve asking for criminal prosecution of anybody, however, and I’ve been following this blog for years.
We all understand that, the UK Information Commissioner has taken the position that the FOI failings, while in clear violation of law, cannot be prosecuted because they are time-barred.
The nature of the UK FOI / EIR legislation has been well fleshed-out on this blog over the last two years. Even Jones and company followed the discussions here, as evidenced in their e-mails. I seriously doubt you’re going to be able to teach anything to Steve in this area. He has practiced in this area.
The statutory language is just a starting point. You next need to look at case law – which has been done at ClimateAudit.
I believe Steve is addressing a simpler point than “Should Jones and friends be sent to jail ?”
There is a difference between being “not guilty of a crime, because the statute of limitations has tolled” and being ‘totally-vindicated, upright-scientists-who-did-absolutely-nothing-wrong-and-were-terrorized-by-a-Canadian.’
Jim,
I was responding originally to mpaul’s assertion that:
“he was directing people to violate the law. “
Arthur Dent commented similarly.
jim edwards:
I don’t see how the non-UK participants to the possible deletion furthered the destruction of protected UK documents, so I don’t immediately see how they would be part of the conspiracy.
The international nature of the request may have been in anticipation of co-ordinated foi requests for the documents in the US and the UK ?
Or, it could be Prof. Jones covering his tracks with regard to deletions that he himself might have made. In my (non-legally trained) opinion, it might qualify as blocking and/or concealing information which had already been erased as well as covering up the aforesaid (hypothetical) illegal erasures.
This had also occurred to me, the last time that Nick Stokes put forward the argument he is advancing here:
jim edwards: [..] the FOI failings, while in clear violation of law, cannot be prosecuted because they are time-barred.
Does this mean that Jones is free to discuss his role in any deletions involved?
oneuniverse:
I would leave that to a UK lawyer to properly comment on.
[My gut instinct would be to tell my client to keep his mouth shut – even though the Information Commissioner has stated legal action is time-barred.]
Nick Stokes>
You’re quite wrong. There may be no prospect of extradition, but the US deletions would still be a crime under English law. If the persons involved came to the UK, they might face criminal proceedings.
Regardless, it was definitely illegal for the request to delete to be made.
Phil Jones – Mon, 26 Jul 2010
“It would be very difficult to guess what might be asked for in future so I don’t go around deleting emails just because they might be asked for at some point.”
“I have previously confirmed that I have never knowingly deleted an email that was the subject of an active Freedom of Information request and neither have I deleted data”.
—————-
My question for Phil Jones is why would he not, as a previously important figure in climate science, promote the idea that all past CRU emails be open to the public? I mean why not release emails beyond the ones in the unauthorized release of November 2009?
Phil Jones, are you worried about that kind of clear act of openness in climate science? If so, why?
John
I think many people are missing the real crux of this thing. In a situation like this when it is pretty obvious to anyone who can read that something very fishy was going on, the public have a fairly clear idea of what was going on without any kind of inquiry.
As such the outcome of the inquiry is as much a test of the ethical standards as an assessment of the public evidence (something the committee seems to have forgotten!). By “exonerating” the climategate team they couldn’t deny the publicly known facts; all they could do was say whether this (abysmal) behaviour was “acceptable” or “not acceptable” — and what they told everyone was that is quite acceptable for British “scientists” to behave like MPs buying duckhouses.
Which is a pretty damning conclusion of British science – and not exactly the kind of publicity you’d appreciate if you were a scientist in the UK!
Very well said.
Slightly OT, Regarding ethics in the UK- the country slid from 13 to 20 in the recently released corruption rankings for 2010- a bit worse than Qatar, a bit better than Chile!!
http://www.transparency.org/policy_research/surveys_indices/cpi/2010/results
“…when it is pretty obvious to anyone who can read that something very fishy was going on, the public have a fairly clear idea of what was going on without any kind of inquiry.”
Ah, but it depends on who and what you read. The MSM touted all these inquiries as exonerations of UEA and the Team. And so did many scientists. If memory serves, even Pielke, Jr. said the same. One must be careful when dealing with this stuff.
I’ve not put that well. What I mean is when you say: “does such and such a behaviour fall short of ethically acceptable behaviour”, the process is not just one way. The judgement is as much a statement of what is ethically acceptable as it is about the behaviour.
The problem with climategate, is that virtually all of the evidence was available publicly before the inquiry and so most people knew what had been going on and as the inquiry singularly failed to come up with new evidence the inquiry ended up being an assessment of whether the known behaviour was acceptable.
In effect the conclusion was simply a broad statement about what counted as ethical behaviour in British science (using the climategate scandal as an example). I suspect not many real scientists were very happy: to find the bar for “British science” had to be set so low that any lowlife could crawl over!
Wow!
You must have been a lawyer in a previous life.
Acton said “they’ve assured me that they’ve never knowingly deleted emails…”. So did Acton also claiming that Briffa assured him that Briffa never knowingly deleted emails?
Thats what you are mean’t to think, but if you could ask some searching follow up questions he would have to admitt he mean’t Jones and the office cat.
Roy: “Does he think it uses more electricity to spin a disk with more data on it?”
LOL! This would be a great subject for a Dilbert cartoon.
[Steve:] “Jones’ carefully crafted statement says only that he hadn’t personally deleted the Wahl-Briffa emails.”
There may be as well the possibility, that Jones deleted those emails already before the FOI request, and asked his collegues to delete them after the FOI request.
Steve: Possible, but the Wahl-Briffa exchange was done with uncharacteristic secrecy and Jones wasnt cc’ed. But either way.
In business for 18 years, I have never deleted any relevant email and keep them all. Having a dinky personal computer, space has never been at issue or an expense.
If a party wanted to delete e-mails to make space, lawfully, “in the normal course of business”, he usually must do so in a way that could be described as a rule with some rational [and legal] basis.
For example:
Delete the oldest files until 300 mB is freed up
Delete all personal photos from family members
Or, if one wanted to be more targeted, perhaps:
Delete e-mails older than 1 year from Joe – because Joe died last month
Delete emails about the Xerxes project, because you changed departments and haven’t contacted any of the Xerxes group in months.
What you can’t do as a government employee is delete only the e-mails that are personally embarassing – and then make the excuse that you were trying to save space on the hard drive. That’s not “in the normal course of business”
Muir Russell didn’t ask Jones whether he deleted emails becuase, according to him, it was a police matter and would’ve involved a possibly involved and expensive process.
Some questions about this dilatory revelation : Was the inquiry blocked from questioning Jones in the way Muir Russell described? Who was consulted prior to the decision to curtail the scope of Jones’ questioning? When did Muir Russell realise he was impeded in inquiry into Jones’s apparent possible FOIA-evasion? Whom did he inform of this problem?
A person (Russell) with reasonable suspicion that a crime has been committed (did not press on because it might become a police matter) has, in any case, a moral and legal requirement to inform the police. It is a crime to act to conceal a crime.
To be fair, doing nothing is an act of omission – and generally not unlawful unless a person has some special duty [e.g. – a parent or childcare provider]
Concealment of a crime is an act of commission, and generally unlawful. The person who conceals is likely an accessory after the fact to the crime.
It seems to me that Muir Russell not asking would probably put him in the first camp.
Acton asked Jones if he had deleted e-mails and basically told Stringer a minute after Russell’s answer about the same issue that he didn’t have any qualms about asking him without first cautioning him.
I’m amazed that Stringer didn’t call Acton to explain that if the emails were being deleted for space reasons on the UEA server, why did Phil Jones ask Mann to delete them on mail servers in America? Was it a global issue? Really?
If I’d have been conducting the inquiry, I’d have demanded that Acton demonstrate that there was any sort of space issue on the mail server at the time. I’d have threatened Acton with jail if a UEA administrator could not confirm that there was any space issue on Jones’ email account at the time.
I’m angered by such transparent lying by supposedly honest academics.
So this is good in the spirit of the law?
………………………….
1228330629.txt
From: Phil Jones
To: santer1@llnl.gov, Tom Wigley
Subject: Re: Schles suggestion
Date: Wed Dec 3 13:57:09 2008
Cc: mann , Gavin Schmidt , Karl Taylor , peter gleckler
Ben,
When the FOI requests began here, the FOI person said we had to abide
by the requests. It took a couple of half hour sessions – one at a screen, to convince
them otherwise showing them what CA was all about. Once they became aware of the types of people we were dealing with, everyone at UEA (in the registry and in the Environmental Sciences school – the head of school and a few others) became very supportive. I’ve got to know the FOI person quite well and the Chief Librarian – who deals with appeals. The VC is also aware of what is going on – at least for one of the requests, but probably doesn’t know the number we’re dealing with. We are in double figures.
…………………..
Prima facie, this is an attempt to encourage people to break the law. Anyone disagree?
“Anyone disagree?”
I’d like more information. What specific law-breaking do you think was being encouraged?
Nick Stokes:
I think the former FOI supremo made it very clear at the parliamentary enquiry that there was prima facie evidence of breaking the law but that the statutory period for prosecution had expired.
Jeff Alberts and Sam the Skeptic:
“Prof Acton, are you satisfied that these questions weren’t asked?”
My parsing is, ‘Has it been established to your satisfaction that the relevant questions were asked?’
I was asking just what it was in the passage Geoff quoted that he thought was encouraging law-breaking.
Nick, already stated. Read again. If you have specific evidence that relevant classes of persons can excuse themselves from the operation of FOI – and that such classes are relevant here – let’s hear them.
Chris 1958 – I know that the FOI supremo said it was too late to investigate past inaction of FOI procedures, but I am now talking about the more general act of an alleged breach, notably, instructing others to disregard the law, especially from a position of seniority. Different time limits.
When Russell and Acton began to slow down because of the thought of police, they were more or less obliged to call in a legal person like a public prosecutor or the police to take matters out of their hands. I would be surprised if they had the power to avoid doing this.
As a (more severe) analogy, one would call in a Coroner if a fatality was revealed during an Inquiry.
@chris1958
“My parsing is, ‘Has it been established to your satisfaction that the relevant questions were asked?’”
That’s exactly opposite.
‘questions weren’t asked’ vs ‘questions were asked’
Geoff, you say already stated, but I see nothing there. All I see is Phil complaining about what he sees as vexatiousness of CA requests (sounds like when all those demands for agreements with 5 countries at a time were pouring in) and getting sympathy from various admin people. Well, vexatiousness is an issue they can raise – nothing illegal about that.
But what actual lawbreaking activity do you see encouraged?
Nick, I think you are being intentionally dense. Geoff’s very reasonable question is whether or not Phil Jones is recruiting people to take part in his conspiracy to withhold documents responsive to an FOIA request. You see, Nick, the law doesn’t allow people to disobey if they don’t like the people who are requesting documents. Bringing up what a bad person Steve McIntyre is has no bearing on the issue of whether documents are responsive or not. So if Phil Jones is charming people into acquiescing to his decision to break the law, is that not a violation of the law as well? From a legal point of view, is it a crime if one person does it but not a crime if a group of people break the law?
Do you understand now?
Not at all, Ron. There are many grounds on which requests can be lawfully resisted. Vexatiousness is one (Sec 14.1). UEA has to state its case, and decisions can be appealed. All lawful.
Admins speak to their staffers about these things, and listen to their arguments. They have to; staffers have the facts. Dr Jones put his view, possibly that the demands were vexatious, and presumably came away thinking there was an improved chance that UEA would argue that case. Again nothing illegal, or even improper.
BTW, I’m not saying PJ’s argument was based on vexatiousness – there are many grounds on which a FOI request can be denied (all subject to appeal).
Steve: NIck, you are far too quick to make statements on legal points about which you have no background and your instincts are wrong. “Vexatious” is a term of art in legal processes. None of the few FOI requests up to the end of 2008 were remotely “vexatious” in law even if Jones was annoyed by them.
Did Jones make that claim? Was the request denied because of vexatiosness? If so, was it appealed? If appealed wouldn’t EAU be legally bound to retain the requested documents in case they lost the appeal? And if the documents somehow got destroyed during this process, wouldn’t that be a matter of law?
I do not think this is what happened.
@Nick Stokes: “All I see is Phil complaining about what he sees as vexatiousness of CA requests (sounds like when all those demands for agreements with 5 countries at a time were pouring in) and getting sympathy from various admin people.”
Nick, as of 3 December 2008 the CRU had received just 6 FOI requests since the act came into force in January 2005. Two in 2007 and 4 in 2008. Jones was clearly battening down the hatches prior to the 5 country FOIs, and indeed it was because of this obduracy that the 5 country FOIs took place.
It’s likely that PJ is more likely to see vexatiousness than you are, and probably UEA also. They’re entitled to a view – it’s not illegal. Who’s right can be settled on appeal, and if UEA is persistently out of line, some administrative correction will occur.
Nick, I hate hair splitting, but the Jones email says “we had to abide” and “it took (words) to convince them otherwise”. i.e. “that we did NOT have to abide”.
You are reading this as “we had to abide”, but “there are defences despite having to abide”. There’s no hint of your interpretation in the email.
People in positions of authority have a special burden to avoid implanting wrong impressions in others, for example, by telling them how to be in breach of the FOI law. One reason is that subordinates might fear for their futures unless they follow the leader.
Heard that syndrome before?
Geoff,
One thing you folks forget in the excitement in raking over people’s private emails is that they aren’t considered public statements and can’t be subjected to this sort of hair-splitting. They may be written in haste – they may refer to previous correspondence – you just don’t know.
But that said, I can’t even see the hair split. Abide isn’t the word I would have chosen, but it’s clear the alternative to acceding to the request is to deny the request, claiming one of the various exemptions provided in the act. Quite legal, provided there are arguable grounds for the denial. And it can be overruled on appeal, and that doesn’t mean that the original denial was illegal.
And it’s quite proper for Jones to argue for that internally. As Jim says, there is a greater responsibility on the FOI officer to ensure that a denial is made only if well-based. But that is still a judgment call.
Nick:
I don’t know if I’d go so far as to say that a denial was “Quite legal, provided there are arguable grounds for the denial”. [At least, in all cases.] The UEA official is supposed to be an honest arbiter; he’s not supposed help Jones deny in bad faith – and then dress up the denial to appear legal.
You’re correct that any mistakes can be corrected on appeal. Appeals are costly and time-consuming, however. Many people don’t bother appealing. The effect of a bad initial determination is to thwart the purpose of the FOI Act.
As to illegality of asking the FOI administrators to ‘see things Jones’ way’, I tend to agree with Nick on this one.
Jones can ask them to ease off on requiring him to comply. They know their job a lot better than Jones does. That’s significant. He’s not expected to understand FOI, they are – and they are the parties on campus to whom Jones, et Al would be expected to go for guidance. It’s not like they are employees / underlings of Jones. They have free will. It’s incumbent upon them to say, “Sorry, Phil, the law doesn’t work that way; you’re going to have to hand over the documents.”
There is universal acknowledgement amongst UK officials, now, that they blew it by allowing Jones to withhold documents. And I think it was in bad form for Jones to lobby that way to get what he wanted. [It borders on defamation…]
It seems a stetch, however, to call it criminal.
When I say it’s not criminal – I mean that the FOI people’s bad acts should not be attributable to Jones as part of some sort of solicitation / conspiracy.
They would still have some sort of liabilty for their own act of preventing members of the public from getting the benefit of the FOI Act. [Although now, supposedly, time-barred…]
Sorry but people undergo FOI training in organisation and it is the individuals reasonability to ensure they comply with it , the buck cannot be passed unto others. And remember Jones planed to avoid FOI requests before he got a any, so he was aware.
1.) There’s a difference between being wrong, and being illegal.
2.) Jones needs to comply with FOI, and he can’t tell his underlings [Briffa] to delete embarrassing e-mails. Violations could be illegal.
UEA officials [Palmer ?], also need to abide by FOI. Violations could be illegal.
Just talking to FOI officials, with the hopes that they’ll make a different determination, without making any promises of benefits to the officials, is probably not illegal. When Jones ‘conspires’ with fellow climate scientists – they’re trying to develop their personal academic reputations [or further their personal political preferences]. That’s a tangible benefit, like taking a cut of ill-gotten proceeds. What’s in it for the officials ? This sounds more like an ex parte hearing [in which the attorney may have misrepresented the other side…].
Jim, I appreciate your contribution to the discussion. The key question you ask is “What’s in it for the officials?” And the answer could be the reputation of their employer. If UEA loses stature then it also loses the ability to gain funding. Surely Palmer (or whoever Jones convinced) can see the wisdom of going along to get along, don’t you think?
The only way in which Palmer (or whoever) may be legally convinced not to comply is if it the decision was based on a reasonable legal interpretation. This goes to state of mind. We have no evidence legal arguments were discussed.
It still stands. In my way of thinking, if Jones convinced Palmer (or whoever0 to go along with his scheme to break the law, then said person has become an accomplice to his conspiracy. I don’t see any way around it, but perhaps I am missing something.
Ron:
You said:
“If UEA loses stature then it also loses the ability to gain funding.”
This is likely true, but the university is required to maintain these FOI officials’ positions, whether the university endowment is large or small. They’re safe, and don’t get bonuses when the endowment increases. In a court of law, I believe the connection between UEA’s ‘stature’ and influence over / benefit to FOI officials would be found to be too attenuated. [again, I don’t do criminal law, and certainly not UK law…]
Consider that these officials almost certainly were not privy to the unsavory actions of Jones and company. That’s important. Without a real meeting of the minds, you can’t form a conspiracy.
Not that I mean that they couldn’t form a conspiracy to unlawfully withhold information without bringing them into the CRU ‘web of deceit’. I read Jones’ letter as saying he took more than an hour to demonstrate how Steve M., et Al were bad actors. In effect, he convinced the officials – through presentation of evidence – that CA were inherently “vexatious”, and requests were solely for the purpose of stifling the work of CRU.
If the officials had seen both sides of the coin, they probably wouldn’t have made this decision.
As I recall many of these denials, they were of the form that “this material is already available at the NCDC website”. Not having a technical understanding of the significance of what was being asked for, the FOI officials appear to have allowed Jones and co. to craft the substance of the responses to requests. Why not ? They believed CRU was filled with saints and they were battling a Canadian Anti-Christ. Don’t the good folks at CRU know best what’s publicly available ?
I don’t see that the FOI officials improperly agreed to deny information to Steve M, et Al; I see that FOI officials improperly agreed to improperly defer to CRU judgement about how to respond to requests for information. There’s a big difference between the two. One smells like crime; one smells like negligence.
The FOI officials are like people who run into a wife [Jones] getting divorced from her husband [Steve M.]. The wife is going to say all kinds of things about her husband – and conveniently leave out her own poor qualities. They, naturally, feel sorry for the wife. They may promise to help her move ‘her’ things out of the house. As I said, above, this looks more to me like defamation by the wife, than a true ‘conspiracy’ between the parties to burglarize the husband’s goods.
I expect prosecuting attorneys might disagree with me.
You also said:
“The only way in which Palmer (or whoever) may be legally convinced not to comply is if it the decision was based on a reasonable legal interpretation.”
I would change “be legally convinced not to comply” with “deny requests for information.”
Steve: In the delete-all-emails incident, Jones discussed Briffa making untruthful statements to Palmer about the existence of Wahl-Briffa correspondence. Palmer may not have been properly informed. Palmer’s own correspondence has been unfailingly cordial. This could have been feigned, but I got the impression that he was trying to do his job within the rules.
I forgot to mention, their reasons for denial do not agree with the notion that they were convinced the requests were “vexatious”. Other reasons were used.
Geoff Sherrington
So this is good in the spirit of the law?
………………………….
1228330629.txt
From: Phil Jones
To: santer1@llnl.gov, Tom Wigley
Subject: Re: Schles suggestion
Date: Wed Dec 3 13:57:09 2008
Cc: mann , Gavin Schmidt , Karl Taylor , peter gleckler
Ben,
When the FOI requests began here, the FOI person said we had to abide
by the requests. It took a couple of half hour sessions – one at a screen, to convince
them otherwise showing them what CA was all about. Once they became aware of the types of people we were dealing with, everyone at UEA (in the registry and in the Environmental Sciences school – the head of school and a few others) became very supportive. I’ve got to know the FOI person quite well and the Chief Librarian – who deals with appeals. The VC is also aware of what is going on – at least for one of the requests, but probably doesn’t know the number we’re dealing with. We are in double figures.
…………………..
Does this email not imply that the ‘VC’ is involved, to some degree, in the FOI requests. Is this the same ‘VC’ the Commons Committee were being assured of no wrong-doing by?
If Jones was not copied on the Wahl-Briffa surreptitious exchange of emails, how did he know that these actually existed ? Obviously he did know, hence his comment that Briffa “should deny their existence”
I’m waiting for someone to ask what the meaning of “is” is…
Great work Mr McIntyre, thank you for good work. I’m hoping the USA election will lead to congressional commmittees, with intellegent help, calling the USA members of the team to testify.I believe at some point the UK will investigate but I’m not holding my breath probably the USA and Canada will act first
This previous question I asked seems to have disappeared fro some reason, so I’ll try again:
how did Jones know of the surreptitous emails between Wahl-Briffa when he was not copied into them ?
That he did know is the basis for his later email statement that “Keith should say that they didn’t exist”
Ian, he didn’t need to know about the emails prior to the FOI request, it was most likely this that triggered him to write to the others telling them to get rid of the evidence. He most likely knew that Briffa was trying to get the Wahl paper entered into the IPCC documentation, but there was no need for him to be involved in the methodology of so doing.
As Prof Acton says the emails weren’t deleted, and as there is an outstanding FOI request for them, why haven’t they given them to the original requestor? I suspect one trained in cross-examination would have asked Acton this.
“He most likely knew that Briffa was trying to get the Wahl paper entered into the IPCC documentation …”
Yes, that is my best current understanding as well. He knew the Wahl-Briffa interaction was going on. His later email statement that “Keith should deny their existence” tells me he also knew it likely transgressed IPCC standing protocols
We don’t know that Jones was not copied into them, we only know he wasn’t cc’d in the e-mails that we have seen. You need to remember that what was in the CRU e-mail release was only a sample of the e-mail traffic that had been assembled by person or persons unknown for an unknown reason.
If the Muir Russel investigation had been a serious one it would have involved a trawl through ALL the e-mail traffic of the CRU staff, not just the ones released to the public.
In fact it looks as if his team didn’t even bother to look at the released e-mails with any diligence
Varco.
No, it is Acton’s predecessor.
“I have previously confirmed that I have never knowingly deleted an email that was the subject of an active Freedom of Information request and neither have I deleted data”.
Note that he is not confirming that here. He is only confirming that he previously confirmed it.
Did you delete any emails that later became the subject of an active FOIr (yes or not please)
Did you have any reason to believe that those emails would likely become the subject of an active FOIr (yes or no)
When you asked others to delete email, was it because you were concerned about their disk storage?
“When you asked others to delete email, was it because you were concerned about their disk storage?”
Lol.
In the July 10 Russell report we read at page 87. “Information can only be withheld if: ―in all the
circumstances of the case, the public interest in maintaining the exception
outweighs the public interest in disclosing the information.”
In the October Commons braodcast at about 9.58.43 minutes, Russell says I was not going to put the review into a position of making the sort of quasi-judicial, prosecutorial investigative judgements (etc)” Why not?
And at 9.59.19, Russell again (about his committee) – “You are getting to the point where you are alleging that there might be an offence.”
I keep raising this topic because it was Russell before the Commons Committees who raised the suspicion of illegality, several times. The thought of police involvement plausibly crossed his mind, with his use of words like “caution” and “criminal offence”. His reason for inaction was that the Information Commissioner was enabled to act. But the IC had already stated that time had passed and he could not investigate SPECIFIC cases. This is not a defence for Russell to fail to proceed with general questions of illegality.
In my book, Russell was obliged to mention illegality, to ask questions about it, and if evidence existed, contact the appropriate officers. There are many inquiries that recommend taking matters to Public Prosecutors or the like. The possibility of illegality was not denied by either Russell or Acton. Indeed, they raised it. Was Jones guilty? Not for me to judge, but re-read the first para here and compare it with Jones email quoted above under my name at Oct 28, 2010 at 6:04 PM.
The whole fiasco, in video format…
Needs a snappier title.
“A Convenient Untruth” maybe.
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