Was there an actual legal opinion?

In today’s post, I discuss the following statement by the Muir Russell “inquiry” – a topic previously discussed here with further information provided today.

Muir Russell stated:

in the opinion of UEA‘s legal advisers, unconstrained access to the contents of e-mails on the server by the Review would raise potential privacy and data protection issues.

This sounds sort of impressive. But imagine the difference if they had said:

in the opinion of UEA Vice Chancellor Acton, unconstrained access to the contents of e-mails on the server by the Review would raise potential privacy and data protection issues.

That would have made quite a difference. Documents obtained subsequent to the publication of the Muir Russell report show that the latter is almost certainly what happened.

In July (almost immediately after release of the Muir Russell report), I had wondered why Muir Russell would not have obtained independent legal advice for the “Inquiry”. Recent documents obtained by David Holland show that the Muir Russell Inquiry paid 22,451 UK pounds for legal advice to two firms (Olswang LLP and Taylor Wessing). Given the existence of such an ample legal budget, it seems negligent that they didn’t ask their counsel for independent legal advice on access to the back-up server. (Dig here: the only legal advice referred to in the report itself is advice on publication of submissions, which resulted in their decision not to publish David Holland’s submission. I realize that UK lawyers can be expensive but it seems hard to believe that they could have spent that much money on deciding whether or not to publish submissions.)

The negligence of the Muir Russell inquiry in relying on UEA legal advice rather than obtaining their own independent legal advice (as happens in even routine real estate transactions) would be bad enough. But what if there wasn’t an “opinion of UEA‘s legal advisers” in the first place? This appears to be the case.

In August, I asked the UEA for any documents provided to the Muir Russell inquiry that evidenced this opinion. They replied that there weren’t any:

In terms of legal opinions relating to Appendix 6 (Data mining – Access to the Original CCRU Email Archive), no document was provided by UEA to the Review. The Review reported UEA’s understanding, as conveyed to Sir Muir in conference.

The only candidate meeting was the March 26 meeting between Muir Russell and Acton, about which the minutes state:

Professor Acton was strongly supportive. He was concerned that due attention be given to the fact that this could raise Data Protection issues because more personal data, possibly relating to more people, might be involved; and the sheer practical burden of handling the possible outputs of the work had to be considered. We agreed to reflect on those concerns and return to the matter, possibly with a more focused proposition, when Jim Norton and I made our next visit the following week.

Watch the pea carefully here.

Muir Russell said that their inquiry relied on the “opinion of UEA‘s legal advisers“. But the university says that “The Review reported UEA’s understanding,” not the opinion of its “legal advisers”.

In my opinion, there are serious questions about whether Acton’s inchoate concerns have any support under the Data Protection Act. If it’s acceptable for a “trusted” forensic analyst employed by the UEA to examine the backup server, it is hard for me to envisage that DPA regulations would prevent examination of the backup server by an “independent” panel commissioned by the university to “examine the hacked e-mail exchanges, other relevant e-mail exchanges and any other information held at CRU”. The Muir Russell report doesn’t resolve this, because they did not cite the sections or regulations of the Data Protection Act that precluded their examination of the contents of the backup server (at least in the form of flash drive contents.)

It seems to me that we have a situation that is very similar to the supposed selection of the eleven publications for the Oxburgh inquiry by the Royal Society. As CA readers know, the eleven publications had actually been actually selected by former CRU director Trevor Davies based on the list of references selected by CRU in their submission to the SciTech Committee. The statement in the Oxburgh inquiry was untrue. And remains uncorrected.

The same thing seems to have happened here. To reflect reality, the Muir Russell report should have read:

in the opinion of UEA Vice Chancellor Acton, unconstrained access to the contents of e-mails on the server by the Review would raise potential privacy and data protection issues.

They should then have obtained their own legal opinion. If Acton continued to refuse unconstrained access to the contents of the backup server (at least in the form of flash drive copies), then Muir Russell and his panel should have resigned.

23 Comments

  1. jim edwards
    Posted Nov 29, 2010 at 12:03 PM | Permalink

    Company President:
    “I need you to audit my operations so you can allay the fears of my investors.”

    Accounting Firm:
    “OK, that’ll be $100,000.”

    Company President:
    “That sounds fair. By the way, some of our operations are on a cash-basis in the warehouse district. My attorney says you don’t need to know the specifics to certify our operations.”

    Accounting Firm:
    “OK.”

    • theduke
      Posted Nov 29, 2010 at 12:17 PM | Permalink

      Exactly. The investigated are dictating the terms of the investigation.

      Whether crimes were committed seems less important than “potential privacy and data protection issues.”

      Let that be a lesson to us all: if you want to commit crimes or engage in unethical behavior, just do it in the privacy of an office at a government-funded university.

  2. Patrick M.
    Posted Nov 29, 2010 at 1:01 PM | Permalink

    Stormtrooper: Let me see your identification.
    Obi-Wan: [with a small wave of his hand] You don’t need to see his identification.
    Stormtrooper: We don’t need to see his identification.
    Obi-Wan: These aren’t the droids you’re looking for.
    Stormtrooper: These aren’t the droids we’re looking for.
    Obi-Wan: He can go about his business.
    Stormtrooper: You can go about your business.
    Obi-Wan: Move along.
    Stormtrooper: Move along… move along.

  3. Posted Nov 29, 2010 at 1:14 PM | Permalink

    If Acton continued to refuse unconstrained access to the contents of the backup server (at least in the form of flash drive copies), then Muir Russell and his panel should have resigned.

    Agreed.

  4. Brian H
    Posted Nov 29, 2010 at 1:34 PM | Permalink

    WTF does privacy have to do with work-related and researchers emails? These are not exchanges of personal data and sex propositions between co-workers. They are evidence of performance or non-performance of duties and details of decisions made about handling of public assets (data and analyses).

    The lawyers should not be arbiters of such examinations and decisions; it is inevitable that they can always gin up some theoretical excuse for secrecy.

  5. Brian H
    Posted Nov 29, 2010 at 1:35 PM | Permalink

    Lord Acton and Phil Jones must share a brain.

  6. Posted Nov 29, 2010 at 1:51 PM | Permalink

    Speaking of Acton and “actual” vs “reality” … there’s an interesting footnote on page 2 of http://www.cce-review.org/evidence/UEA-CRU_IV3_IT_Final_Formal1.pdf, billed as, “Notes of Sir Muir Russell & Prof. Jim Norton’s interviews with Jonathan Colam-French (Director Information Services), Iain Reeman (ICT Systems Director) and Mike Salmon (IT Manager to the CRU – 40 per” [document Number 0147]

    In a subsequent communication, Jonathan Colam-French confirmed that a full analysis of CRU FoI requests was being prepared for the Vice-Chancellor and would be fully available to the Review.

    I know it’s pure speculation, but there’s certainly a question at the back of my mind as to whether or not Acton’s mouse might have been responsible for the “administrative error” which resulted in the initial omission of the rather crucial 08-31 FOI from this analysis – before it was “made available to the Review”.

    Steve: Palmer says that, in the first instance, it was an “administrative error” and I believe him. Given the erroneous Muir Russell finding, it’s an error that someone on the Muir Russell panel should have noticed. I noticed it almost immediately. My greater objection was to the UEA gloating over the Muir Russell finding in Spetember even though their own professional staff then knew of the error.

  7. Boris
    Posted Nov 29, 2010 at 1:58 PM | Permalink

    What’s the over/under on when Steve will make his last post on “climategate”? 2019 seems about fair.

    • RomanM
      Posted Nov 29, 2010 at 2:14 PM | Permalink

      Re: Boris (Nov 29 13:58),

      My guess would be about one month after the first honest inquiry into the whole affair.

    • stan
      Posted Nov 29, 2010 at 2:33 PM | Permalink

      Oh Boris, don’t sell the team and the establishment short. Given that the hockey stick first appeared over a decade ago and we STILL can’t get straightforward responses, 2019 for climategate seems way too short a time period. I suspect a lot of folks will be in their graves before straight answers will be made available.

    • sleeper
      Posted Nov 29, 2010 at 5:19 PM | Permalink

      Re: Boris (Nov 29 13:58),
      Bored Boris?

  8. Posted Nov 29, 2010 at 2:06 PM | Permalink

    But why would Acton want to prevent access to the backup server?
    Surely Acton would want to demonstrate that his researchers did not delete email following the request from Jones?

  9. Stacey
    Posted Nov 29, 2010 at 2:08 PM | Permalink

    “in the opinion of UEA‘s legal advisers, unconstrained access to the contents of e-mails on the server by the Review would raise potential privacy and data protection issues.”

    Well £22.5k for a top lawyer say at £500 per hour is six days work.

    You would need one hour at most to simply state that the data protection act is in place to protect personal information held on staff.

    The email system and other computer systems are not for private use and hence the only place where private information would be held would be in personnel ie not accessible to the inquiry as it also would not be to staff of the University?

  10. curious
    Posted Nov 29, 2010 at 2:09 PM | Permalink

    …”2019 seems about fair.”…

    Hmmm not sure – on current form it seems that the full truth, the whole tuth and nothing but the truth is not in a hurry to emerge.

  11. Earle Williams
    Posted Nov 29, 2010 at 3:06 PM | Permalink

    In the US attorney-client communications are privileged and subject to severe limitations under the FOIA as well as discovery in litigation (e.g. see http://www.justice.gov/oip/foia_updates/Vol_VI_2/page3.htm)

    I wonder to what extent the UK FOI law has similar protections for attorney-client privilege. Anyhow, in the US typically the existence of such communication must be disclosed, just not its content.

    Steve: I am familiar with attorney-client privilege. However, the Muir Russell inquiry was not the client. By the UEA forwarding their advice to the Muir Russell panel, the privilege is probably waived. If Muir Russell got advice provided to the UEA, Muir Russell would not have privilege.

    But such speculation miss the point here. There is no evidence of any legal advice being provded to anyone on this matter.

  12. David S
    Posted Nov 29, 2010 at 3:45 PM | Permalink

    It may be merely speculation, but it looks as though there are three possibilities here:
    1) Acton had an informal chat with either an in-house lawyer (do they have any at UEA?) or someone on retainer, and then passed it on to Muir Russell as a legal opinion.
    2) There was a formal legal opinion produced for UEA but this has not been disclosed to anyone, whether via FOIA or to Muir Russell, hence the lack of evidence.
    3) Acton made the whole thing up.
    None of these scenarios reflects well on either Acton or Muir Russell.

  13. Kenneth Fritsch
    Posted Nov 29, 2010 at 3:49 PM | Permalink

    I have a brother who was a lawyer and I would boldly put forth legal advice that I had received on my behalf without ever getting counsel from my brother. The bluff worked sometimes and sometimes it did not. With all the other contrivances that were apparently used in these cases to avoid revealing otherwise public information what is to say that they did not just kind of, sort of make this up. In the end, if it ever came to that, could not the person making this all up say that he was misinformed about the advice being from any actual legal counsel.

    Is not this all just further evidence that if a public body chooses not to be forthcoming or comply with FOI that they can resist until someone with sufficient resources comes along and decides to litigate?

    Then, of course, there are leaks that can short cut all this time and expense to all parties concerned and make the party who is hesitant to reveal whole once again.

  14. Frank
    Posted Nov 29, 2010 at 4:17 PM | Permalink

    I suspect the Muir Russell inquiry ran up their legal bill by getting advice on how to prevent the inquiry team from becoming personally exposed them to legal action in the course of the investigation. The lawyers probably reviewed every public statement the Inquiry has released.

    In the process of investigating Phil Jones for misconduct or responding to a subpoena, is there any reason the UEA would be unable to access THEIR email systems on THEIR computers? I doubt it. The sensible conclusion is that the UEA refused to grant the Inquiry access to the undisclosed emails or the Inquiry didn’t want to ask for access and both parties tried to disguise their negligence with legal technicalities. (The situation is analogous to not asking Phil Jones if he deleted emails for fear the answer could be incriminating.)

    What is an independent investigation? The Inquiry did not have the power to compel the UEA to do anything it wasn’t willing to do. The only power the Inquiry has over the UEA is the threat to quit or make any disagreement public in order to protect their personal reputations for integrity. Is there anything on the record to indicate that the Inquiry pushed the UEA about any issue?

  15. Alexander K
    Posted Nov 30, 2010 at 8:08 AM | Permalink

    The more one reads about the UEA’s Vice Chancellor and his relationship with probity and veracity, the more one becomes convinced both qualities are singularly absent from Dr Acton’s character.

  16. Watchman
    Posted Nov 30, 2010 at 8:14 AM | Permalink

    Probably worth pointing out that every UK University does have an in-house legal services team who would normally include the data protection officer. Therefore, there is a real possibility that this team was consulted.

    However, if they were, there would be the option to FoI this correspondence, as this would not be a client relationship, but employees of the university. So it is rather unsurprising to find that UEA’s website does not indicate the existence of a legal service team, university solicitor or the like… It does mention Max Moseley giving a talk on the right to privacy though, which made me smile.

    It is quite conceivable that UEA does not have its own solicitors (which leads to questions about how much it costs them to sign agreements and the like), but it seems more likely they are hidden somewhere, and if they can be found, then this information can be FoI’d.

  17. James Evans
    Posted Nov 30, 2010 at 1:21 PM | Permalink

    £ There you go. You can cut and paste that when you next need to talk about those curious ‘UK pounds’.

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