Although NOAA were minor players in the Climategate letters, the recent report from the Inspector General of the US Department of Commerce (re NOAA) is the first report to date in which the investigators made any effort to crosscheck evidence from Climategate correspondents against independent sources.
It does not list the emails that it investigated and its report does not discuss some relevant emails involving NOAA (Tom Karl copied on the post-Arusha discussion that resulted in hide-the-decline; also comments on 1127614205.txt ; 1148307524.txt ; 1182342470.txt;1226451442.txt; 1248902393.txt would have made the report more comprehensive.)
They did an interesting analysis of NOAA’s repudiation of 2007 FOI requests for documents held by NOAA related to IPCC review comments. They rejected NOAA’s assertion that they did not hold any IPCC-related documents (an assertion characterized at CA as “mendacious”) and sought an explanation for the assertion from NOAA employee and IPCC WG1 Co-Chair Susan Solomon, who was specified in the FOI request.
Solomon said that she did so on the basis of legal advice from NOAA attorneys. However, the attorneys denied that they had given Solomon such advice. They asked Solomon for evidence that she had received such advice and she was unable to provide any such evidence. They say observe dryly:
“we were unable to reconcile the divergent accounts [of Solomon versus the NOAA attorneys]”
The section deserves careful reading as it also contains important statements on IPCC process.
The Backstory
The incident arose from games that IPCC WG1 (chaired by NOAA employee Susan Solomon) was playing in 2007 about their obligation to provide a public archive of IPCC AR4 review comments – an incident that CA readers will recall. Solomon later instructed IPCC authors in the UK to be unresponsive to David Holland’s UK FOI requests.
IPCC regulations required that IPCC provide review comments to reviewers and to maintain an archive of review comments for 5 years. My efforts to obtain review comments earlier in 2007 had been rebuffed. In May 2007, they told me (see CA post here on May 27, 2007) that I could attend at a library at Harvard University during restricted hours. Harvard said that copying would be limited due to copyright restrictions.
This was not a reasonable fulfilment of IPCC obligations – a point on which even CA critics agreed.
A few days later (May 31, 2007) – see CA post here, I sent an FOI request to NOAA (WG1 Co-Chair Solomon and TSU Secretary Martin Manning were both NOAA employees and both had used NOAA emails for their IPCC duties) as follows:
I request that a copy of any NOAA records (documents, memoranda, review comments, reports, internal and external correspondence or mail including e-mail correspondence and attachments to or from NOAA employees) be provided to me on the following subjects:
(1) review comments on (a) the Second Order Draft and (b) the Final Draft of the Fourth Assessment Report of the International Panel on Climate Change (IPCC) Working Group I, including, but not limited to, all expert, government and review editor comments;
(2) all annotated responses to such comments by Chapter Lead Authors.
Three other CA readers sent in similar FOI requests.
On this occasion, IPCC quickly caved in to this peaceful demonstration against their authoritarian policies, now stating that they would place the review comments online – see CA post here – (which they did.)
Nonetheless, a few weeks later, NOAA responded to the FOI request (CA post here) in which they made the remarkable assertion that they held no documents responsive to the FOI request:
You have asked for copies of NOAA records concerning review comments on the second order draft and the final draft of the Fourth Assessment Report of the IPCC Working Group 1. In addition, you have asked for all annotated responses to such comments by chapter authors.
After reviewing our files. we have determined that we have no NOAA records responsive to your request. If records exist that are responsive to you request, they would be records of the IPCC and as such can be requested from the IPCC…”
At the time, I observed the absurdity of NOAA’s reply (later even calling it “mendacious”), but, since IPCC had relented, the issue appeared to be mostly moot and I didn’t bother trying to overturn NOAA’s refusal.
The OIG Report
There, matters rested until a few days ago.
The FOI refusal was one of several issues considered in detail by the Inspector General, whose attention had been drawn to this incident by Climategate email 1182255717 which referred to two NOAA employees as follows:
3. CA is in dispute with IPCC (Susan Solomon and Martin Manning) about the availability of the responses to reviewer’s at the various stages of the AR4 drafts. They are most interested here re Ch 6 on paleo.
As part of their assessment of NOAA’s involvement, the Inspector General examined the disposition of this FOI request (and the three similar requests) and concluded that NOAA did not discharge its legal obligation:
Apparently, the only NOAA scientist informed of the request was Susan Solomon (referred to in the OIG report as the Co-Chair of the IPCC AR4 WG1). Solomon told them that she didn’t carry out a search because she understood that her “IPCC-related work product was the property of IPCC”, stating that she had received “verbal guidance” from a NOAA OGC attorney that the IPCC-related documents weren’t “NOAA records.”
The Inspector General then considered the definition of “agency record”, observing that “none of the NOAA employees” with whom they spoke could recall explicit IPCC policies on confidentiality, concluding that IPCC had not “demonstrated a clear intent to retain control over the records created or obtained by NOAA employees”:
They reported that Solomon told them that she had been “detailed” from NOAA to IPCC from 2002 to 2007 and that she (and her supervisor) had been told by a NOAA attorney that her IPCC-related documents were not “NOAA records”:
Unlike the UK and Penn State inquiries who accepted the evidence of Climategate correspondents without any attempt at corooboration, the Inspector General interviewed the two NOAA attorneys to verify Solomon’s assertion that they had advised her that her IPCC-related work product were not NOAA records.
Their evidence contradicted Solomon’s. The first attorney denied ever speaking to Solomon about the issue, while the second attorney said that he was consulted only after the fact and denied that he had provided her such guidance:
The Inspector General returned to Solomon and sought documentation on their discussion with the attorneys -“which they were unable to provide”. They dryly observed that they were “unable to reconcile the divergent accounts”.
They then re-examined the case referenced by one of the NOAA attorneys, finding that the circumstances were distinguishable. They concluded that that Solomon’s IPCC-related work product were “NOAA records” after all and should have been processed under FOI:
All in all, an interesting investigation.
Climate Audit 
52 Comments
I believe that lawyers have a saying, “false in one, false in all.”
It’s too bad all the other investigations related to the Climategate e-mails failed to follow the simple procedure of following up on statements made.
“Solomon’s Divergence Problem.” -ouch. Very good Steve.
I would not want to be Susan Solomon today, what with being tossed under the bus by two NOAA attorneys and all.
For once we have a climategate inquiry actually checking the evidence they are given by IPCC’ers. And the result is the discovery of discrepancies. Unlike Penn State, the IG checked with Wahl if he had deleted emails, and he said he thought he did, which doesn’t square with Penn State’s conclusions based on the information Mann supplied to them. The IG checked with the lawyers if Solomon actually got the legal advice she said she did, and they “specifically told us that they had not advised the Co-Chair or her supervisor on this matter at the time NOAA received the FOIA requests referenced herein.” They go on to say that one of them never talked to Solomon about it at all, and the other said he did only after NOAA had already responded with the claim that it had no records relevant to the FOIA request.
One wonders what else might have been learned up to now if the inquiries had checked the evidence they were given, rather than simply accepting it all at face value.
Another big implication of this report is the IG determination that if US federal agency employees work on IPCC documents, their AR5-related emails and correspondence are likely going to be deemed agency records and are subject to FOIA disclosure rules. The IG Report (pp. 15-16) sets out conditions that determine if the employee is “detailed” to the IPCC. By the sounds of it, it pretty much requires a person quit their agency job and work out of their own home as an IPCC volunteer.
This mirrors findings of officials in the UK after David Holland’s efforts that IPCC review correspondence falls under EIR rules. And the US and UK rules will apply in real time. The IPCC won’t get to sit on the review records until long after the report is published, US FOIA rules require a response within 20 days. I don’t see any way the AR5 can be done in secret the way previous reports were done. By my reading of this report, US and UK federal government scientists should henceforth assume that all their IPCC-related emails and documents will be published, probably before the AR itself is even published.
Hehe, no kidding. When your own lawyers sell you up the river you’re toast.
Mark
“I would not want to be Susan Solomon today”
Why not? What exactly is going to happen to her as a consequence of this? She won’t even get a slap on the wrist. The NOAA has already issued a press release claiming that she was cleared.
Why would any IPCC documents (apart from employee lists containing personal information) need to be confidential? Confidential <> open and transparent.
You really missed your calling, Steve. You should have been a lawyer or an investigator.
I seem to recall somewhere in the IPCC docs that they were going to be totally transparent, which, if true, would be an explicit statement of IPCC intent towards confidentiality.
What striked me most about this “divergence” is something that might seem exceedingly small, but might be the one salient point that puts Susan Solomon in jeopardy; she lied about the REASON she refused the requests.
She might be able to argue that she thought she had legal advice; she might be able to argue that she made a mistake. She might even be able to argue that, based on the supposed legal advice she got, she didn’t think a comprehensive search was required.
But she lied to the public about the REASON for refusing the request.
Even if there are no legal consequences for lying to the public in the course of doing her job, and I certainly hope that there are, it would be a little hard for even Gavin to argue that Susan was not dishonest about this. I hope Judith Curry follows up. 🙂
Just curious, but if the IPCC had already agreed that all such records were to made available, how could Solomon expect that documents on NOAA computers which were (in her view) under the IPCC NOT be made available? I’m not familiar with the ins and outs of the FOIA, but it seems that if she had e-mails, etc which were on point, the IPCC had already waived any claim that she shouldn’t provide them.
They were either subject to the control of the NOAA or the IPCC. Either way, she has to provide them. Right?
The FOIA requests to NOAA would only be applicable to NOAA work product. I think Solomon argued that the IPCC work conducted by NOAA employees is IPCC work product, and that a FOIA request to NOAA is not the appropriate avenue to access them.
I guess she figured you’d have to go through the IPCC for those documents. Is there even a mechanism for that? I don’t know.
No. She argued that he lawyers advised her that the documents were not agency records. It would appear that this statememnt was …. medacious.
I guess there is an issue about where the IPCC documents were kept.If they were stored on NOAA computers then I don’t see how they could seen as confidential to the IPCC. It’s like having someone use your garage to park their car and then refuse to let you see the car.
Steve: no issue whatever about the fact that the documents and emails were on NOAA computers. SOlomon and Manning used NOAA email addresses at all times in carrying out their IPCC duties.
So, is there a statute of limitations in the US, like the UK? Will there be any price paid for non compliance?
What I find strange about the statute of limitations act is that it usually starts from the late date that you’ve received new information. If you find information at a later date that reveals non-compliance, then the statute of limitations applies from that date as far as counting down is concerned, but the limitation itself only starts X days after IF no other information is revealed. That’s how it is in Canada and the US as far as I know. Is it different in the UK?
So if someone tells you they have no data for the FOIA request, and you find out well after the statute of limitations act would apply that they lied, then the timing of the statute of limitations act would be reset to zero. It would not apply for another X days (whatever is specified in the act) as far a liabilities go.
Sorry, the statute of limitations is not reset to zero, but rather the time you have to go to court is reset. And this has a different statute of limitations which is different for each type of liability. Even so, I find it strange how going to court was just tossed aside upon discovery of new information.
Steve:
Dry, very dry – as in rotating slowly over a hot fire.
So, is a new FOIA request for the same records in order or is the archive that is on line sufficiently complete?
It would be interesting to know whether the records that *have* been published have the phrase “do not cite or quote” in them…that would give an indication of whether what has been published is complete.
Steve: the phrase Do not cite or quote was attached to the First and Second Order Drafts of AR4. As I recall, both drafts were subsequently been placed online.
Steve you seem like a smart guy, perhaps you can figure a way to charge a tall cold one to the tip jar. In any event I hit the tip jar for enough to buy a couple of beers, this post is worth it. I’ll be smiling for a while.
Strange that CBC reports no wrong doing and that NOAA acted on the advice of lawyers.
http://www.cbc.ca/news/technology/story/2011/02/24/science-climategate-noaa.html
Read the Article again, BC.
The article says that the investigation cleared NOAA of data manipulation, but that’s not what’s being discussed here.
Pertinent to what is being discussed here, the article says “…[the report] raised concerns about…the handling of certain requests under the U. S. Freedom of Information Act”.
It also says that NOAA says in a press release that scientists were given legal advice…but the article does NOT say that the INVESTIGATION found that the scientists were given legal advice. If you read the careful documentation Steve’s done here, you would find that the investigation did not find that to be verifiable.
Given that the NOAA has just misquoted the findings, I wonder what liability they have? First Solomon lies about her Reason, and then NOAA lies about the findings…
Read the headline, the point is CBC, like most media outlets do not do their own reporting, what looks like a news report is actually a press release from NAOO, the headline is added, that is all most people read.
See Mr. Mcintyre’s next post.
Now if you think AR5 WGI plans to do things differently as far as confidentiality is concerned you should read this.
If you think AR5 plans to behave itself on submission deadlines you should look at what their timetable states and then look at what LLNL say the submission deadlines are.
No problem for late papers in the second draft this time the “Bergen” deal is up front and over three months!
Note that we can start asking to see the first draft of WGI on 16 December 2011 and the annotated comments on it on 16 April 2012
Re: David Holland (Feb 24 17:21),
Your first two links go to http://www.ipcc-wg1.unibe.ch – a URL which is deemed by Google to be “untrustworthy” so will not reveal itself.
Ironic, heh?
Re: Lucy Skywalker (Feb 25 10:55),
That spooked me too! It seems their certificate is out of date.
“They reported that Solomon told them that she had been “detailed” from NOAA to IPCC from 2002 to 2007 …”
I don’t believe that such a provision (“detailed) exists in the US Civil Service Code. Basically the implication being made was that she was granted a leave of absence ‘with pay’ from NOAA to work for the IPCC. I doubt you will find authority for such an arrangement in the Code; it would certainly be a most unusual circumstance and would have necessitated involvement with the Human Resource Department. I wonder if the inspectors requested to see any documentation involving such an arrangement. Clearly the inspectors determined that she was being paid by NOAA and working out of her office.
Actually, being “detailed” to a different job does happen from time-to-time in the federal gov’t. While its not common, its not unusual, either. I work for the feds, and I’ve seen my organization detail people to work in the White House, on Capital Hill, in Iraq, and even once the National Defense University. The agency from which the detailed employee originated continues to pay their salary, but usually the employee works out of space provided by their detailed office.
Here it seems like the IPCC detailees continued to work out of their NOAA offices, on their NOAA computers, and using their NOAA email.
I don’t work in HR, so I have no idea the documentation required to get someone detailed.
Dave L and Scott B, read the last quoted box again.
It states that detailing is real and that they could not find evidence that she or any other scientist was ever “detatiled” to the IPCC.
It seems more like their boss gave them (scientists at NOAA working on IPCC stuff) undocumented and unofficial permission to use their NOAA work hours for non-NOAA business and when questioned they gave the impression that she did have official permission and denied the requests.
Without documented official permission to be detailed, any work done for someone/something else (IPCC) is still the property of NOAA and subject to FOIA.
I am sure I don’t need to give Steve any pointers, but this should be a big note for future FOIA denials regarding IPCC ownership of records. Follow up such a denial with a request for the “memorandum of understanding or SF-52 Request for Detail” the scientist is/was supposedly working under. No document = no reason to deny FOIA request.
I tend towards the account of Solomon and her supervisor. The reason I do so, is it is my belief it would have been an FOIA attorney who responded to the request, and that contains the line “If records exist that are responsive to you request, they would be records of the IPCC and as such can be requested from the IPCC…”
That says to me that the attorneys considered the matter at the time whether they can recall it or not now. I find it difficult to believe that the FOIA attorney who responded to request would have included that line unless they’d considered the matter.
Unless you can show me it is reasonable to think that Solomon herself wrote that FOIA response, that appears to be the most likely read to me.
Steve: to my knowledge, there isn’t an “FOI attorney” involved and I doubt that there is such a thing at NOAA. The report refers to “OGC attorneys” which presumably are Office of General Counsel attorneys.
If it was like U of East Anglia, then the request would be dealt in the first instance by the FOI officer/clerk who, in most cases, asks the scientist (who is higher in the pecking order.)
It seems to me that the language is within the terms of FOI officer/clerks and does not imply the involvement of an “FOI attorney” at this stage.
If there was an FOI attorney, I’m sure that the IG would have interviewed him. I think that the evidence of the OGC attorneys has to be taken at face value – thus the divergence problem.
Re: geo (Feb 24 18:03),
I wonder if the advice was sought from the IPCC rather than the NOAA lawyers?
Steve–
Well, I would hope that whoever is in charge of responding to FOIA requests actually knows what their responsibilities are, even if “lower in the pecking order” than the scientist. If they don’t, that’s a problem all by itself.
We know from the EA CRU case that scientists did in fact engage in some “social engineering” (a hacker term) to get the FOIA officer to come down on their side, because Jones admits to it in the emails (without calling it that, of course). But for me, at the end of the day whoever sent the response out under their signature is primarily responsible for its accuracy.
NOAA is likely to have lawyers who specialize in different areas. While the job may be temporary, at any given time there would likely be an attorney who is an agency’s expert on responding to FOIAs.
AGW is a non-trivial topic. FOIA’s regarding Solomon could reasonably have received careful attention from NOAA’s attorneys. If they did not, then there could be a reason they were causally handled. Solomon may not have wanted any legal opinions in writing, because these might have instructed her to be responsive. The issue may have been handled orally, so everyone could issue denials to the IG.
“…everyone could issue denials…”
and
[Taken gratuitously (not to mention outrageously ) out of context – as a JOKE, Mike.]
“…we benefit from the answers, not necessarily true ones, to those questions. You know it’s not about the truth at all: it’s about something plausible.”
Folks like Solomon would have probably hoped incoming FOIA’s did not get bubble up to NOAA’s top attorney, a political appointee of President Bush, who might have asked for a serious, responsible response.
Me thinks, Solomon’s doggie has lots of homework to eat….
The Appeals Court decision concerning whether records may be withheld (which was referenced in the Inspector General’s report on page 18 of the PDF) is here:
http://bulk.resource.org/courts.gov/c/F3/412/412.F3d.125.04-5206.04-5205.04-5204.html
The court basically found that a federal agency can withhold “documents that would reveal the deliberative processes” of a federal agency. However, the IPCC is not a federal agency so this exemption would probably not apply to discussion concerning IPCC “deliberations”.
“divergent accounts” I’ll have to add that to the growing climatology phrasebook…
“divergent accounts” = someone is lying
Selected additional entries:
“peer-review” = an activity that can be redefined as required by team members
“trick” = not being honest, lying, a good way to solve a problem (when the problem is inconvenient), a means of making a living
“justified disingenuousness” = a hard to spell phrase to be used when caught tricking
All clarifications about sources of documents, confidentiality, discovery, FOI are quite valuable. Blogs have started to step on untested ground. It’s important for us in other countries – how does one determine which country will hear matters like famosus libellus on the Net?
Forensically exquisite, Steve. Thank you.
On more conventional divergence, if I may be oblique, is there a problem with this argument?
A scientist decides to do a calibration of instrumental temperature with tree ring properties for the last 15 years. Um, but the temperature has not changed within the noise, so the tree ring properties should be invariant within their noise if past mechanistic assumptions are correct.
Our researcher next looks at the shaft of the hockey stick and says ‘But these reconstructed temperatures are essentially constant for hundreds of years. It follows that tree ring properties were invariant for hundreds of years also.’ Were they? Does not the hockey stick destroy dendrothermometry?
It will be interesting to see proxy calibration in a time of flat line temperature. “We can record a successful new proxy that stays constant when the temperature stays constant”.(sarc off)
This type of incomplete comment is relatable in logic with the Solomon divergence. “We can record a successful evasion of FOI requirements in NOAA because the documents were with the IPCC”.
and yet… there appears a significant divergence in CA posting any notice or commentary relative to another (of the many) independent reviews that have cleared climate scientists of allegations of mishandling/manipulating climate information/data. Things that make you go… hmmmm
CA has posted on every one of the whitewashes. Where have you been?
Mark
there ya go… we were just missing the official stamp of summary “whitewash” dismissal. So many independent investigations… all with cleared of wrongdoing outcomes… so many “whitewash” dismissals! Things that make you go… hmmmm
They asked Jones if he deleted emails and he said no and they didn’t investigate further. They never even read the archive of climategate emails…some investigation.
Steve – actually the Muir Russell inquiry didn’t ask Jones whether he deleted emails. Muir Russell explained to the Parliamentary Committee that, if he had done so, Jones would have been admitting to an offence.
Read Steve’s comment below… they didn’t even ask if there was any wrongdoing because they were worried it would force him into admitting an offense. That’s a whitewash by any definition.
Mark
Hmmm… indeed.
Supporting the IPCC is one of NOAA’s chartered responsibilities, is it not?
In the absence of specific agreements among the IPCC and NOAA to the contrary, any work performed and any materials produced in support of the IPCC by NOAA employees in the pursuit of their assigned duties are the property of the US Government, regardless of where those materials might happen to reside.
It is even possible that in the absence of a specifically-tailored intellectual property agreement among a particular NOAA employee and the US Government, any and all work performed, and any and all materials produced in support of the IPCC by that NOAA employee — regardless of when, where, or how those materials were produced — are also the property of the US Government.
Perhaps an FOI request might be in order to ascertain whether such a specifically-tailored intellectual property agreement exists between Susan Solomon and the US Government, one which would allow her to support the IPCC on her own time without relinquishing intellectual property rights to the work she performs and to the materials she produces.
For all this fuss, the IPCC did eventually release the documents in question, and there is NO, repeat NO, evidence that there was any inaccurate or misleading evidence about climate change itself.
This whole posting is full of sound and fury, signifying NOTHING!
So climate scientists just like breaking FOIA laws and obsfucation for the fun of it? That’ll boost one’s reputation for integrity!
Edward K, How do you know it was all of the documents?
It clearly was all, because Gene already deleted his.
😉
It’s a good thing that the documents were released (after pressure by Steve McIntyre and Dave Holland).
Just as an example, we can see that concerns raised about the paragraph mentioning the Himalayan glaciers disappearing (the wording is actually contradictory) were either dismissed, or acknowledged but not acted upon by the authors. It’s unusual that such a ‘rookie mistake’ could remain after queries by scientists, and the government of Japan. (See the reviewers comments, and Dave Holland’s article ‘2035 and all that’).
For further examples, try reading this website. eg. the review comment that it was ‘inappropriate’ to show the decline of late 20th C. tree-ring proxy-temperatures (for the infamous study in question).
Apparently you haven’t read the Harry_readme file…
Hey – what happened to my comment?
Seems the IG has one avenue remaining. The explanation given by Solomon sounds very similar to what Phil Jones & Co came up with and was seen in the ClimateGate e-mails. Perhaps there are some emails at NOAA along those lines that have not been uncovered?
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