On March 9, 2011, NOAA scientist Eugene Wahl claimed that the “emails [he] deleted” were “all” “in the public domain” since the Climategate dossier was released. This is more disinformation from NOAA. “All” of the emails are not in the public domain. Attachments to the deleted emails – including Wahl’s changes to AR4 that are in controversy – remain outside the public domain.
Worse, not only are the attachments not in the public domain, but the University of East Anglia has stated (in recent FOI refusals) that their copies of the attachments to the Wahl-Briffa correspondence have also been destroyed. (This contradicts Vice Chancellor Acton’s testimony to the Parliamentary Committee; the Committee observing with visible exasperation that they found it “unsatisfactory that we are left with a verbal reassurance from the Vice-Chancellor that the e-mails still exist”.)
In addition, if the University of East Anglia is to be believed, Wahl has continued to actively opposed the release of attachments to earlier emails that remain in the possession of the University of East Anglia during his employment at NOAA, most recently in connection with my FOI request of April 2010 (EIR 10-03) for eight documents attached to Climategate emails.
Requests for all but two documents were refused by the UEA. In February 2011, the UK Information Commissioner agreed to consider my appeal of the UEA refusal, the outcome of which is pending.
NOAA Scientist Wahl’s 2011 Statement
NOAA scientist Eugene Wahl told Eli Kintisch of Science here that the deleted emails were “all” “in the public domain”:
The emails I deleted while a university employee are the correspondence I had with Dr. Briffa of CRU regarding the Fourth Assessment Report of the Intergovernmental Panel on Climate Change, all of which have been in the public domain since the CRU hack in November 2009. This correspondence has been extensively examined and no misconduct found. As a NOAA employee, I follow agency record retention policies and associated guidance from information technology staff.
In the rest of this post, I’ll refute this by reviewing the progress of my FOI request to East Anglia for the attachments to Climategate emails involving Wahl.
My April 2010 FOI Request
Attachments to Climategate emails are indicated by document trailers at the end of the emails. The attachments are not themselves available. Without the attachment to an email (which, in some cases, are the critical element), it is untrue to say that “all” of the email is available.
On April 5, 2010, a few days after the Parliamentary Committee had urged the University of East Anglia to improve its conduct in respect to FOI requests, I requested eight documents from the U of East Anglia (actually an Environmental Information Regulation request, but the differences are not relevant to this post):
Dear Mr Palmer,
Pursuant to the Environmental Impact Regulations, I request copies of the following eight documents (reference is attached to Keith Briffa letter):
Wahl_MBH_Recreation_JClimLett_Nov22.pdf (attachment mentioned in Jan 4, 2005 458. 1104855751.txt)
Wahl-Ammann_3321_Figures.pdf; Wahl_Ammann_3321_Final_21Feb.doc – attachments mentioned in Feb 21, 2006 647. 1140568004.txt
Wahl_Ammann_3321_Final_21Feb-Revision1.doc – attachment mentioned in 650. 1140838402.txt Feb 24
AW_Editorial_July15.doc; AR4SOR_BatchAB_Ch06_ERW_comments.doc; Ch06_SOD_Text_TSU_FINAL_2000_12jul06_ERW_suggestions.doc – attachments to 716. 1153470204.txt July 18, 2006
Ch06_SOD_Text_TSU_FINAL_2000_25jul06KRB-FJ-RV_ERW_suggestions.doc – attachments to 733. 1155402164.txt from July 27, 2006
Thank you for your consideration,
Regards, Steve McIntyre
The first document in the list was the Wahl and Ammann version that was used for the AR4 First Draft and which should have been in the library of unpublished articles available to reviewers. It was attached to a Climategate email from Mann to Jones in late 2004. I had previously asked IPCC to provide me with the, but IPCC told me that they had destroyed the archive.
The last four documents in the list were attachments to the surreptitious correspondence between Wahl and Briffa in July and August 2006, that became the target of Jones’ delete request. These documents would specifically show how Wahl changed the IPCC assessment to language more favorable to their article than the language sent to external reviewers and are thus at the heart of the ongoing controversy.
The other three documents pertain to versions just before the March 1, 2006 version that was archived at Ammann’s website in March 2006. They were of less interest, but included for completeness.
On Apr 8, 2010, I received a standard acknowledgement letter. On May 5, 2010, UEA notified me that they were extending the response time. On June 2, 2010, UEA responded (see here) , providing two of the eight documents (Wahl-Ammann_3321_Figures.pdf; Wahl_Ammann_3321_Final_21Feb-Revision1.doc), while refusing the other six documents. The two documents were two of the three February 2006 documents and were both of secondary interest.
They stated that they did not hold the four attachments to the surreptitious Wahl-Briffa correspondence: “Information not held”.
Why did the university continue to hold attachments to the February 2006 emails, but not to the July 2006 emails? A good question that remains unanswered.
They refused the other two documents on the following grounds:
Information is a draft and therefore is an unfinished document for the purposes of the Regulations. Much of the information in the draft is contained in a later, published version, and release would adversely effect the interests of the parties that provided the information
In this refusal, they relied on Regulation 12(5)(f) [adverse effect on the interests of third parties], referring to objections by Wahl of NOAA and Ammann of NCAR as follows:
We also cite Regulation 12(5)(f) as Professors Wahl and Amman have indicated, and we are minded to agree, that several documents were provided to this University on the understanding that they were not public documents and that release would have an adverse effect on future sharing of scientific information between researchers and would limit their ability to openly explore ideas and approaches in draft formats. They made it clear that they felt that the proper fora to access this information was by way of the completed version.
One of the documents refused on this ground was the version of Wahl and Ammann that was used in the AR4 First Draft. Unpublished documents were supposed to be available to IPCC reviewers (including me.)
On July 13, 2010, I requested reconsideration of the refusal as follows:
I hereby request a review of this ruling. In its submission to the Muir Russell inquiry, the University of East Anglia stated: “The cycles of review and revision of IPCC Reports from the First Order Draft onwards are fully transparent and overseen by review editors. All comments and responses are publicly available.”
Obviously the information refused is not “publicly available” as represented by the University.
The review comments sent to Briffa were their final comments and were not drafts of their review comments. UEA policies discourage employees from entering into confidentiality agreements if there are reasonable alternatives. Given that IPCC policies require the archiving of review comments, it was improper for Briffa to purport to enter into a confidentiality agreement with Wahl and Ammann that violated IPCC procedures.
Your interpretation of the public interest test surely needs reconsidering. This correspondence has been the topic of extreme public controversy and was supposed to have been consulted by the Muir Russell inquiry. It was the subject of the notorious “delete all emails” request of May 2008.
On August 10, 2010, the UEA rejected my reconsideration request. In respect to the attachments to the Wahl-Briffa correspondence, Colam-French re-iterated that the UEA no longer held the attachments to the Wahl-Briffa correspondence:
I have reviewed the criteria and searches that were undertaken to locate the requested documents and agree with the assessment that these documents are no longer held
Recall that Briffa has admitted that he had taken 4137 emails home for “safekeeping”. It seems, shall we say, odd that the attachments to the Wahl-Briffa correspondence were not kept “safe”.
In respect to the first document ( the Wahl and Ammann version used in the AR4 First Draft), they re-iterated that Wahl and Ammann continued to oppose its release:
Doctors Wahl and Amman have identified that release of these documents [e.g. the version used in the AR4 First Draft] would have an adverse effects on the future sharing of scientific information between researchers and by extension on them personally. On this basis I believe that our use of Reg. 12(5)(f) in relation to both documents was appropriate.
Muir Russell at the Parliamentary Committee
On Oct 26, 2010, Muir Russell appeared before the Science and Technology Committee, admitting (see page 57) to Graham Stringer, that (amazingly) he hadn’t asked Jones about the deletion of emails.
Acton then piped up that he had carried out an investigation of the deletions – the first that anyone had heard about the “Acton Investigation”. MP Stringer asked Acton “Are all the emails now available and can be read?” Acton said “Yes.”
In their subsequent report (published on Jan 17, 2011), the Committee expressed their frustration that Muir Russell hadn’t investigated the deletion of emails and stated that it was “unsatisfactory that we are left with a verbal reassurance from the Vice-Chancellor that the e-mails still exist”.
Appeal to the Information Commissioner
Acton’s assertion that “all” the emails were “available and can be read” obviously contradicted the University’s statement in their FOI refusal that they no longer held the attachments to the Wahl-Briffa emails.
On Nov 28, 2010, based on this fresh information, I appealed the UEA rejection to the ICO (see here)
In respect to their refusal of the attachments to the Wahl-Briffa correspondence, I observed:
At the hearings of the Science and Technology Committee, MP Stringer asked Vice Chancellor Acton “Are all the emails now available and can be read?” Acton said “Yes.” If so, then the university must hold the documents that they had refused on the basis that they did not hold the documents and appeal their refusal on this basis.
In respect to their refusal of the other two documents under Reg. 6(1)(b), 12(4)(d) and 12(5)(f), I argued that these exemptions either did not apply or were overridden by the public interest test to which they were subject as follows:
Regulation 6(1)(b) simply does not apply. It applies if:
6(1) (b) the information is already publicly available and easily accessible to the applicant in another form or format.
This is factually not the case. Neither of the documents in question is publicly available. If they were, the university could have provided me with a URL to the location of the other form or format.
Likewise, Regulation 12(4)(d) likewise does not apply. It applies if
12(4)(d) the request relates to material which is still in the course of completion, to unfinished documents or to incomplete data;
The university claims that both articles were “drafts”. This is untrue. Both articles were submitted to IPCC for use in their Fourth Assessment Report on the basis that they had been submitted to journals.
Similarly, regulation 12(5)(f) does not apply. It applies if:
(f) the interests of the person who provided the information where that person—
(i) was not under, and could not have been put under, any legal obligation to supply it to that or any other public authority;
(ii) did not supply it in circumstances such that that or any other public authority is entitled apart from these Regulations to disclose it; and
(iii) has not consented to its disclosure; or
The university stated that the documents were provided to the university “on the understanding that they were not public documents”. This is absurd. IPCC regulations required all unpublished articles to be posted up at a website to be available to all reviewers. If the documents were not “public documents”, then they should not have been cited in the IPCC First Order and Second Order Draft reports. In addition, IPCC has policies requiring it to be “open and transparent”.
The university’s application of the public interest test is also flawed. They state that it is important that “researchers are able to exchange and explore ideas in a private space”. However, in this case, we are not talking about private exchanges among researchers but articles submitted to an IPCC Lead Author that were used in IPCC documents.
The university observes:
They have also stated that IPCC policies require the archiving of official [my bold] review comments but not every communication received by the authors over the three years during which these reports were prepared.
The qualification that IPCC policies are limited to “official” review comments does not exist in IPCC Procedures, which clearly state;
The review process should be objective, open and transparent. … All written expert, and government review comments will be made available to reviewers on request during the review process and will be retained in an open archive in a location determined by the IPCC Secretariat on completion of the Report for a period of at least five years.
IPCC policies do not limit the archiving obligation to “official review comments”; they include “all” review comments, even if those review comments were submitted through back channels described by Fred Pearce (The Climate Files, 146) as “a direct subversion of the spirit of openness intended when the IPCC decided to put its internal reviews online”
On January 12, 2011, the ICO turned down my appeal on the basis that there had been “undue delay” on my part in bringing the appeal, observing that their policy (which, to my knowledge, is not their website), absent special circumstances, required an appeal within 60 days of the rejection of the reconsideration. (My appeal was brought about 100 days after the reconsideration refusal.)
On January 17, 2011, I requested that they reconsider their decision to close the file, citing special circumstances as follows:
I request that you reconsider your decision not to hear my complaint about the UEA’s refusal of my EIR/FOI request for the following reasons.
You observe that you can hear a complaint filed after 60 days if there is a “special reason”. This most definitely applies here. Almost immediately following the UEA’s FOI refusal (on August 8, 2010), there were hearings of the Parliamentary Science and Technology Committee at which the chairs of two inquiries into this affair appeared: Lord Oxburgh on Sept 8, 2010, followed by Muir Russell and Lord Acton, Vice Chancellor of UEA on October 27, 2010. UEA responses to FOI requests were an important issue of the Muir Russell inquiry and I expected that Muir Russell and Lord Acton would be asked about these issues and that their answers would be relevant to my ICO complaint. This proved to be the case and I filed my complaint on November 28, 2010, almost exactly one month after the Muir Russell-Acton testimony. There was no undue delay on my part after the Muir Russell-Lord Acton testimony to the Science and Technology Committee.
Further, Acton’s evidence to the Science and Technology Committee was directly relevant to my argument against UEA’s refusal to provide documents on the basis that they were no longer in their possession. As I noted in my complaint to you:
At the hearings of the Science and Technology Committee, MP Stringer asked Vice Chancellor Acton “Are all the emails now available and can be read?” Acton said “Yes.”
The university had refused my EIR/FOI request on the basis that they did not hold the documents; however, Acton’s evidence indicates the opposite. This is an important aspect to my appeal and surely qualifies as a “special reason”.
In addition, the document that I requested (and UEA refused) was the topic of Phil Jones’ notorious request to “delete all emails” – about which your office commented as being compelling prima facie evidence of an intent to breach FOI legislation, though time barred for prosecution by your office. There is considerable public interest in this document and the matter is exceedingly unlikely to disappear on the technical grounds that my complaint was not made within 60 days of UEA’s refusal. Undoubtedly someone else will make a similar request to UEA and start the process all over again, with the appeal to ICO this time being made within 60 days. (I have taken the liberty of copying Graham Stringer’s office in case they wish to initiate such proceedings if you continue to refuse to hear the matter.)
In the alternative, while the public authority (UEA) informed me that there was a right to bring the complaint to the Information Commissioner, they did not notify me that the Information Commissioner expected complaints within 60 days of the refusal. Nor, to my knowledge, are potential complainants warned of the 60-day time period in the ICO webpages that an ordinary user is likely to consult. In the present case, the additional delay was not lengthy as the complaint was brought within 120 days. Nor is UEA inconvenienced by the slight delay as they undoubtedly did not anticipate that the matter had ended.
The issue is not merely of personal interest to me. The request is for a central Climategate document. There is a great deal of public interest in Climategate and there have been three inquiries in the UK to date. It is hard to contemplate more compelling “special reasons” for waiving your usual 60-day period and it is doubtful that relying on a technicality will enable you to avoid considering it.
I accordingly request that you re-open this file.
The ICO asked for further particulars, which I provided. In addition, on January 31, 2011, I sent them the following supplementary arguments, based on the report of the Parliamentary Committee which had become available in the mean time:
Further to my previous correspondence to you, the Science and Technology Committee has issued another report http://www.publications.parliament.uk/pa/cm201011/cmselect/cmsctech/444/444.pdf on the University of East Anglia, in which they rely on Acton’s statement that nothing had been deleted:
86. Professor Acton had no such qualms questioning the scientists at CRU about whether or not they had deleted e-mails subject to FoI requests. He told us “Can those e-mails be produced? Yes, they can. Did those who might have deleted them say they deleted them? No. They say they did not”.116
In their findings on this matter, the Committee stated their concern that the Muir Russell panel had not fully investigated the deletion of emails and that they were left merely with a verbal reassurance from Acton that the emails did still exist:
89. We are concerned that the Independent Climate Change E-mails Review did not fully investigate the serious allegation relating to the deletion of e-mails. We find it unsatisfactory that we are left with a verbal reassurance from the Vice-Chancellor that the e-mails still exist. On the basis of the ICO’s announcement made on 7 July 2010, it is reasonable to conclude that there was a breach of EIR by a failure to provide a response within 20 working days. On the allegation that e-mails were deleted to frustrate requests for information, a firm conclusion has proved elusive.
All of this is obviously inconsistent with the University of East Anglia concurrently refusing my EIR/FOI request on the basis that the University was no longer in possession of the requested documents attached to the emails.
On February 4, 2011, the Information Commissioner Office, which, almost uniquely among government institutions, has been straightforward throughout the entire Climategate affair, agreed to accept the appeal, observing that it would take time to study the file.
There are a couple of morals from this particular backstory.
Climate institutions (NOAA, the UK Met Office, CRU) have already made too many misleading and/or outright mendacious statements in refusing requests for documents. Thousands of readers are familiar with these events and are able to judge for themselves. Some commentators advise the climate community that they can restore confidence by telling new “stories”. However, before this tactic can be effective, climate institutions should ensure that any refusal of a request for information be scrupulously accurate, as the past practice of mendacious and/or misleading excuses has been pointlessly corrosive to the credibility of the institutions and the broader community.
NOAA’s recent statement that “all” the emails are in the “public domain” is one more incident. They aren’t. Without the attachments, only part of the emails are in the public domain.
If pressed, I’m sure that their defence would be – well, we didn’t say that the “attachments” to the emails were in the “public domain”. However, the public has seen far too many examples of such unconvincing parsing. Climate institutions should stop such practices immediately.
In my opinion, if NOAA wants to say that the “all” of the emails are in the “public domain”, then they should ensure that “all” of the emails are in fact in the public domain, rather than adding to the inventory of untrue and/or misleading statements. In the case at hand, “all” of the email includes the attachments. Now that a NOAA scientist has spoken out on the matter, NOAA should require that the attachments be placed in the “public domain”.
Secondly, if the climate community wants to get the Climategate affair behind them, the best course of action for them is to voluntarily get any and all documents pertaining to the events on the public record, rather than contesting the production of each and every document. If a NOAA scientist is in possession of documents that have been destroyed by CRU scientists, NOAA should find out precisely what their employees have and voluntarily put it in the public domain.
In the case of withholding the Wahl and Ammann version that was supposed to be in the (destroyed) IPCC archive for the AR4 First Draft, it is beyond incomprehensible to me that NOAA and NCAR would permit their employees to oppose the delivery of this document under UK FOI. (I don’t know whether Wahl and Ammann got the consent of senior NOAA and NCAR officers before registering their opposition to the release of this document or whether they were free-lancing. Regardless, in my opinion, senior NOAA/NCAR officials should require Wahl and Ammann to withdraw such opposition. Needless to say, this presumes the truthfulness of the University of East Anglia’s statement that Wahl and Ammann had registered objections – and the truthfulness of their statement is not a given.)
In the present frayed circumstances, any rational manager would take the opposite approach – they would instruct employees Wahl and Ammann to rescind any objections at the University of East Anglia to the disclosure of documents under UK FOI, copying the UK Information Commissioner. Actually, any rational managers would do more than that – they would place the version that should have been in the (now destroyed) IPCC archive online themselves.
It amazes me how often climate institutions make self-defeating choices on this sort of matter. Perhaps they think that they can win such cases in front of Information Commissioners in the UK or US. But any such victories tend to be pyrrhic victories. Whatever decision is rendered by the UK Information Commissioner will simply generate more commentary down the road. In my opinion, such obstructions, especially when accompanied by untrue or misleading excuses, are far more corrosive to public trust in the institutions themselves than any conceivable benefit to the institutions achieved through the obstruction.