More Mendacity from East Anglia Revealed

More developments from Bishop Hill on the strange relationship between the University of East Anglia and the supposedly “independent” Muir Russell review. On yet another occasion, the University gave untrue answers in order to avoid FOI disclosure, an untrue answer that led to several follow-up FOI requests that they were unable to subvert, but which ultimately showed the mendacity of the original refusal.

In this case, the original request from David Holland in December 2010 (see CA post here) was for the documents, that “in the view of the University, comprises the contractual basis under which Sir Muir and his team operated and under which the University was contractually obliged to pay the sums that you have disclosed”. The request was not limited to Muir Russell, but included, for example, the retainer of professionals, including Luther Pendragon and lawyers.

Please provide me copies of the Correspondence between the University and Sir Muir Russell that, in the view of the University, comprises the contractual basis under which Sir Muir and his team operated and under which the University was contractually obliged to pay the sums that you have disclosed of what, I assume, is taxpayers money.

Please advise me as to how the disbursements were made. For instance, were the fees of the legal advisors paid directly by the University? If not who paid and how were they reimbursed.

In its response, the University denied the existence of relevant documents:

The University does not consider that there was a contractual relationship with Sir Muir Russell or the inquiry team; it was by way of a public appointment (as is commonplace in these circumstances). Nonetheless, it may be helpful to you in understanding the terms on which the appointment was made if we refer you to the agreed terms of reference (see: http://www.ccereview.org/pdf/FINAL%20REPORT.pdf, p.22) and certain email correspondence between Professor Acton and Sir Muir. (see attached .pdf file).

The attached correspondence consisted of a single email from Acton to Muir Russell, referring to an earlier email (never produced) and to a conversation in a taxi, including the following (part of which was blacked out for reasons that remain unclear):


Up to that point, I think that it’s fair to say that anyone who’d bothered turning their mind to the issue would have presumed that either (1) Muir Russell and the various members of the panel had worked under agreements with the University and were paid under those agreements, or, less likely, (2) that Muir Russell had set up the Muir Russell Review Team as an unincorporated entity, established a bank account for the Team and paid and received invoices from panel members and suppliers through that bank account. (Many Climate Audit readers do not work in the public sector and think about details such as this.)

A few months later, Andrew Montford, an accountant by day, tried again, this time asking for general ledger and invoice details.

1. A detailed lists of amounts expended – i.e. at invoice level – for the two inquiries. For each amount processed through the ledgers, I would like the following fields
– invoicer/payee name
– date
– amount
– contents of narrative field
– authorised by
2. Please provide copies of invoices (or equivalent documentation) used to process the above payments.

This time (see CA here plus Bishop Hill) , the University provided the general ledger information but refused to provide invoices, claiming:

The additional work required to actually provide copies of the invoices would place the time required well over the appropriate limit.

At that time (May 2011), I commented:

Even from this information, the UEA’s claim that Muir Russell was a “public appointment” looks increasingly fantastic. If a public appointment had really taken place, then there would be invoices from the Muir Russell Review Group to the University of East Anglia, instead of, as seems to be the case here, invoices directly from Geoffrey Boulton, Luther Pendragon etc to the UEA.

I also observed:

Despite the efforts by the UEA to avoid showing the invoices from Muir Russell and others, I think that they will come out. And will show that the UEA’s attempt to claim Muir Russell as a “public appointment” was just another subterfuge to avoid compliance with an earlier FOI request.

David Holland also followed up with an FOI request to Muir Russell, following up the apparent implication of the University’s claim that he was a “public appointment” – if he was a “public appointment”, then presumably the Muir Russell Review Team was a “public authority” and thus itself subject to FOI. Muir Russell rebuffed the request as follows (referring to FOI (Scotland):

I have however taken advice and I am satisfied that I am not, and the Review Team as a whole is not, a public authority for the purposes either of the 2002 Act or the 2004 Regulations. In the circumstances we are not under any legal obligation to make information concerning the Review available to any person under that legislation. [referring to Scottish Act]

The new development is that Montford requested copies of large invoices, including those from Muir Russell, Boulton and Luther Pendragon, all of which have been provided (see here). As so often, the details of the invoices told a different story that told by the University in subverting the original FOI request.

Remember how the University said that it “does not consider that there was a contractual relationship with Sir Muir Russell or the inquiry team”. However, when it came to collecting his ₤40,000 from the University, Muir Russell had no doubt whatever of the existence of an agreement between him and the university that he should get paid ₤40,000. Muir Russell signed and submitted a UEA Form4/5 for Occasional Work/Self-Employed Work referring in his own handwriting to an “agreed fee” with the University (see here):

Muir Russell’s Forms 4/5 for expenses up to July 2010 were approved by Lisa Williams, while his claim for ₤40,000 in fees was signed by (I think) UEA official Brian Summers. Muir Russell submitted his claim for fees and expenses on July 15, 2010, shortly after delivery of the report. A second claim for expenses of ₤881.25 using UEA Form 4/5 was submitted on Nov 29, 2010 for expenses incurred on Nov 17, 2010, labeled (perhaps) “Brodie’s ???”, also approved by (I think) Brian Summers.

Holland’s original request had covered documents from professionals – also not provided at the time. Four invoices from Luther Pendragon (a public relations firm) were provided – see here. All four invoices (from March 2010 to July 2010) were addressed to Climate Change Emails Review, Box 16, Edinburgh. Three of four invoices were approved by Brian Summers of UEA on his own; one invoice was first approved by Muir Russell with a second approval from Summers. All were directly paid by UEA.

The two invoices from Olswang LLP (lawyers) was similarly addressed to Climate Change Emails Review, Edinburgh, but both were approved by Brian Summers of UEA and paid by UEA. The invoice for the period May 20 to July 31, 2010 refers to an attached “narrative” (standard in legal invoices), but this was withheld from the documents with no apparent justification. The other invoice for the period July 1, 2010 to July 2010 refers to the provision of legal services “relating to Freedom of Information advice”. This was shortly before the apparent destruction of emails by the University of Edinburgh pertaining to activities of Muir Russell panelists. Although Muir Russell had promised transparency, my guess (and it is only my guess) is that they took legal counsel on how they could legally destroy documents.

Marsh, an international insurance firm, provided professional indemnity coverage. There are two invoices, one from 2010 and one just recently in 2011. The first invoice (2010) was addressed to Climate Change Emails Review, Edinburgh; the second to Lucy Mouland, Climate Change Emails Review, University of East Anglia, Norwich. The first invoice was approved by Brian Summers; the second by Lucy Mouland. Both were paid by the University of East Anglia.

Panel member Jim Norton submitted four invoices for fees and expenses, charging a per diem of ₤1250/day. His invoices are all directly addressed to the “University of East Anglia” and include VAT charges (Muir Russell and Boulton did not charge VAT). The first and second invoice were approved by Muir Russell; they were accompanied by UEA Forms 4/5 that were not signed by either Norton or Muir Russell; they were signed by Summers and appear to have been prepared by the UEA Registrar’s office. Norton’s third invoice (dated May 4, 2010) does not have an approval signature from either Muir Russell or Summers; again the UEA Form 4/5 was signed by Summers and appears to have been prepared by the Registrar’s Office.

There are two invoices from Edinburgh Research & Innovation Ltd for the services of Peter Clarke, charged out at ₤800/day. The invoices were sent to the Climate Change Emails Review team, Edinburgh. Both were approved by Muir Russell and, for UEA, by personnel in the Registrar’s Office. No expenses were included with these invoices.

There were two invoices from the Royal Society of Edinburgh, some of which were for room rental – rates were as high as ₤682 for May 26, 2010. They also charged for William Hardie’s services at ₤490/day.

Former BP executive David Walker, hired on as a consultant to salvage the mess in March, submitted three invoices, all addressed to the Climate Change Email Review, Edinburgh. A covering UEA Form 4/5 accompanied each invoice, none of which was signed by Walker. In each case, they were signed by Muir Russell and countersigned by Summers; they were paid by the University. Walker’s rate was ₤1200/day.

Finally, Geoffrey Boulton submitted four UEA Form 4/5s, each of which was accompanied by a schedule entitled “Log of Work: UEA-CRU Review Team”. Details of the schedules appear to have been expurgated prior to delivery, in particular, information on the number of hours charged out by Boulton and his unit rate were expurgated in all but page 6 where Boulton’s daily rate is ₤1500/day, nearly double the rate of Peter Clarke who was charged out through Edinburgh Research. On other Form 4/5s, the corresponding information appears to have been hidden from the FOI requester. Boulton’s Form 4/5s are signed by himself, Muir Russell and countersigned by Summers.

It will not come as any surprise to anyone that Boulton, the most conflicted member of the panel, was brought on board first. His December 2009 log itemizes “Advising Sir M-R on remit, science and personnel for review team, contacting potential members, arranging video conference.”

The invoice (page 6) shows that he spent two days (Jan 13/14) reviewing the emails, one day (January 17) on the “development of criticisms of CRU form published/web/email” and two weeks later (Feb 2) one day on “production and circulation of document “Scoping the Issues”.

Observations

In the past, we’ve speculated on what the Climate Change Email Review was as a legal entity – most of which has resulted from disinformation from the University of East Anglia.

After examining the invoices, invoice approval process and invoice payment process, I don’t think that there can be any serious doubt as to the legal status of the Climate Change Email Review: that it was nothing more than a university committee with outside members.

We now know (and while we may have suspected this, we did not “know” this) that the Review did not have a bank account nor did it invoice the university for interim payments nor did it pay its members according to invoices and then re-invoice the university. It bore no marks of independent legal existence.

As a comparison, consider the Investigation Committee formed by Penn State in respect to Mann. Let’s suppose that such an Investigation Committee established a mailing address in a separate building. That wouldn’t establish a legal existence for the Investigation Committee separate from the University. Suppose now that the Investigation Committee included members from another university or from a professional society. It still remains a university committee with outside consultants. Same thing applies here even when all the members are outside consultants.

The invoices show that the Muir Russell Email Review was a university committee with outside members. Muir Russell was nothing more than a consultant to the university with a fee agreement. The university directly paid all invoices sent to the committee and, in many cases (as shown above) the invoices were directly approved and paid within the registrar’s office. Legally, the Climate Change Email Review should be subject to Freedom of Information, no greater and no less than any other university committee.


90 Comments

  1. Posted Jul 2, 2011 at 12:20 PM | Permalink

    Brodies appear to be Brodies LLP ~ http://www.brodies.com – “Brodies is a client-focused leading Scottish law firm delivering the highest quality and innovative legal services in Scotland and the UK.”

    They make an appearance in the FOI expense list here – http://www.climateaudit.info/correspondence/foi/uea/muir%20russell/Muir%20Russell%20Review%20expenses%20FINAL%20(2).pdf

    • Posted Jul 2, 2011 at 8:21 PM | Permalink

      “innovative legal services” — way too much of that going on…

  2. Posted Jul 2, 2011 at 12:54 PM | Permalink

    As always, Steve, thank you for your persistence and well-honed investigative skills.

    As for UEA/CRU: “When you’re in the bottom of a hole, consider whether it’s best to stop digging.”

    Cheers — Pete Tillman

    “When someone detonates a suicide bomb, that person does not
    have career prospects.” — PJ O’Rourke, “Peace Kills”

  3. Posted Jul 2, 2011 at 1:28 PM | Permalink

    Perhaps the UEA consider themselves to be the legitimate Government of the United Kingdom. Surely, as such, they could issue public appointments and reconfigure the law as they saw fit.

  4. matthu
    Posted Jul 2, 2011 at 1:35 PM | Permalink

    Why do you think they have not revealed any invoiuce from Sir Muir Russell himself?

    Did he not submit a proper invoice? Or did they not like the narrative and decided it was better not to reveal the existence of an invoice? If he was claiming as a self-employed consultant then the UEA financial regulations are clear that he should have attached an invoice.

    The only alternative is that he claimed as a temporary employee (which UEA might have tried to represent as a “public appointment”).

    Steve; my guess is that there is no “invoice” other than what we see here. As to why – there are many oddities here. A quick question – can anyone tell whether the vendor is supposed to fill out and sign the Form 4/5 himself?

    • matthu
      Posted Jul 2, 2011 at 3:47 PM | Permalink

      Steve – When the UEA replied to my own FOI request

      http://www.whatdotheyknow.com/request/records_relating_to_fees_paid_to#incoming-187624

      (currently under review) I asked for the regulations. They included a blank UEA5 form and they also provided guidance for the old-style UEA4/UEA5 form.

      The letter explained as follows:

      “This information is within the attached .zip file entitled ‘Appendix A_Data file’ as the .pdf file
      entitled ‘Form UEA5_Self Employed Work’. Please note that the form provided is the current
      form for authorisation of such payments. The Review team continued to use an electronic
      copy of the previous UEA4/5 form. The University accepted submissions of the old form and
      paid expenses accordingly.”

      I found page 1 of the old style UEA4/UEA5 form on the web.

      Both the new style and the old style have room for signature on page 1, which also collects e.g. banking details and national insurance details etc.

      the old style form on page 1 had the following text at the top

      “To enable the University of East Anglia to pay you correctly complete all sections if this is your first
      payment in the current tax year, otherwise if your circumstances have not changed, enter your name,
      signature and date of birth only. Payment details are completed on page 2.”

      So yes, one would have expected them to sign each claim.

  5. Venter
    Posted Jul 2, 2011 at 1:43 PM | Permalink

    How many lies will UEA be allowed to tell before somebody in the Government should take action? The is absolutely ridiculous.They’ve been lying through their teeth.

  6. kim
    Posted Jul 2, 2011 at 2:35 PM | Permalink

    Lift the heavy rock,
    Watch fearful critters scuttle.
    Please don’t drop it now.
    ===========

  7. Posted Jul 2, 2011 at 2:40 PM | Permalink

    Yes, but did they have a 27B-6?

    • Posted Jul 2, 2011 at 4:18 PM | Permalink

      best movie ever

      • Posted Jul 2, 2011 at 8:00 PM | Permalink

        I still prefer MP and the Holy Grail, but Brazil is one of my top 10.

      • PaddikJ
        Posted Jul 3, 2011 at 7:55 PM | Permalink

        It defined an entire genere. We had Black Comedy, but after Brazil we have Nightmare Comedy.

  8. golf charley
    Posted Jul 2, 2011 at 4:09 PM | Permalink

    Viewing the UK ICO site today I note that the ICO does have the power to audit “public authorities”, and they can make recommendations about criminal prosecutions

    • mpaul
      Posted Jul 2, 2011 at 6:09 PM | Permalink

      The ICO seems to take complaints seriously. They also seem to be reluctant to act absent a complaint. Jonathan Jones was successful in his appeal because he did, in fact, appeal. The rest of us, myself included, simply became frustrated and dropped out of the process too quickly.

      Steve, perhaps if you were to start a thread where people could contribute specific instances where the UEA is thought to have lied or, in some other way, obstructed FOIA, then these instances could be assembled into a formal complaint to the ICO.

  9. matthu
    Posted Jul 2, 2011 at 4:15 PM | Permalink

    There are those who would argue that UEA would make an ideal case to make an example of. Particularly since Acton signed a special undertaking to parliament to be pro-active in encouraging openness and transparency when responding to FOI requests.

    http://www.ico.gov.uk/what_we_cover/promoting_openness/~/media/documents/library/Freedom_of_Information/Notices/uea_foi_undertaking.ashx

  10. golf charley
    Posted Jul 2, 2011 at 4:29 PM | Permalink

    matthu, that’s the one

  11. RayG
    Posted Jul 2, 2011 at 5:02 PM | Permalink

    In the U.S. 2,080 hours or 260 days is typically used for job estimating purposes. I converted the Lbs to USD at today’s rate and extended the daily billing rates for Messers Boulton, Hardie, Walker and Norton. I used a work year of 200 days just to err on the conservative side (as opposed to Labor, I suppose). On this basis, their annual consulting billing rates work out to be $480,000, $158,000, $386,000 and $402,000 respectively. I am glad that so many of us on the skeptic side are on the dole from Big Oil. Otherwise there might be an obscene rush to become consultants to UEA.

    I wonder if someone on the Eastern side of the pond is familiar with any restrictions on the consulting fees that government institutions are permitted to pay.

  12. Arthur Dent
    Posted Jul 2, 2011 at 5:33 PM | Permalink

    There is a very appropriate saying in use in the UK: “Oh what a tangled web we weave when first we practice to deceive”

    • kim
      Posted Jul 2, 2011 at 6:53 PM | Permalink

      But, oh, how we improve our style
      Once we have practiced for awhile.

      H/t Emily Preyer.
      =========

  13. Barclay E MacDonald
    Posted Jul 2, 2011 at 9:11 PM | Permalink

    To look at it another way, if Sir Muir Russel, Geoffrey Boulton, Olswang LLP or Jim Norton did not receive any of their requested payment for respective services, who would they pursue for payment and why?

    Note that so far we have no evidence of a “formal, written” contract. Moreover, I don’t believe we know with any certainty who requested the above services or upon what authority.

    For instance, who asked Jim Norton or Geoffrey Boulton to do anything, and how was the amount and method of payment agreed upon? Of course for a contract to arise there need not, normally, be any writing or formal agreement, only an offer, an acceptance and consideration, or payment. It may be quite informal, but there are exceptions.

    • matthu
      Posted Jul 3, 2011 at 2:28 AM | Permalink

      Acton wrote in an email to Russell:

      “As I suggested in my email this morning, might I propose a fee a bit higher, £40k, to complete the report. Plus travel, accommodation and administrative support. We will cover fees charged for the additional expertise you need, and for such non-UEA administrative support as you require.

      So guess Russell had almost unlimited authorisation to hire outside expertise at UEA’s expense.

  14. Barclay E MacDonald
    Posted Jul 2, 2011 at 11:29 PM | Permalink

    Though when Acton responds to Sir Russell, “Do let me know if there are any other nuances for adjustment. Were you content,the advice to me is that the ideal is for us to announce your name tomorrow”, and we add the invoice showing payment of the same suggested amount from UAE, it certainly appears that UAE was fulfilling its contractual obligation to Sir Russell.

    • Posted Jul 3, 2011 at 2:33 AM | Permalink

      UEA not UAE ;)

      • Venter
        Posted Jul 3, 2011 at 6:18 AM | Permalink

        Yeah, it is very important to show the difference between UEA and UAE.

        One is a temple of intolerance preaching a dodgy religion, tolerates no dissent against the official position, has no freedom of expression, does not consider itself answerable to anybody and generally expects to get away autocratically with anything they deem right, making up their own interpretation of rules and regulations and renowned for dodgy behaviour.

        The other one is a Middle Eastern Nation.

  15. Posted Jul 2, 2011 at 11:35 PM | Permalink

    It is odd that some were charging VAT (Norton) and others not (Muir and Boulton). Could this inconsistency mean that Muir and Boulton have forgotten to make their 17.5% contribution to the green revolution? or that the University is due a refund from Norton? I am sure that Her Majesty’s Revenue and Customs would be delighted to clear up any open questions on this topic. (Should Norton, Boulton, or Muir be reading, just call the VAT helpline on: 0845 010 9000).

    • matthu
      Posted Jul 3, 2011 at 1:34 AM | Permalink

      VAT liability depends on whether an individual or a firm is registered for VAT and the need to register is dependent on whether the individual or firm has crossed (or expects to cross) a laid down VAT threshold during the year in question. In this case, the VAT threshold (70,000) is relatively high and not all of them would have needed to register if the UEA work was their only revenue for the year.

      • Posted Jul 3, 2011 at 10:15 AM | Permalink

        Muir Russell made more half of the threshold then in this one gig. I wonder if sold his services to anyone else during the year?

  16. Posted Jul 3, 2011 at 12:41 AM | Permalink

    Surely you must know — creative modelling also requires and inspires creative accounting! The creative legal services are then invoked to eliminate any confusion created by the first two.

  17. TerryS
    Posted Jul 3, 2011 at 3:04 AM | Permalink

    The VAT number on the “Edinburgh Research and Innovation Ltd” invoices actually belongs to:

    THE UNIVERSITY OF EDINBURGH
    OLD COLLEGE
    SOUTH BRIDGE
    EDINBURGH

    EH8 9YL

    So those invoices are, in reality, from University of Edinburgh.

  18. bobdenton
    Posted Jul 3, 2011 at 3:08 AM | Permalink

    To go back to cleaners.

    The university, no doubt, has a janitorial department of full time employees. Those departmental records are subject to FOIA. From time to time it will engage agency staff, maybe to clean up after an event, maybe to cover holidays, maybe just because it’s cheaper. The agency staff do the same work as the employed janitorial staff. Nonetheless, the agency is not part of the university and is not directly subject to FOIA. This is so, if that is the reality intended by both parties, and will be so regardless of the route by which payments are made or the financial pro forma’s used. These only become relevant as evidence of the true nature of the relationship if it is alleged that the agency is merely a fraudulent subterfuge to evade tax or employers’ obligations and in reality the agency was a creature of the university.

    Muir stands in the same position as the agency. If you accept that both parties, the UEA and Muir, intended that his review should be independent, then it was not a committee of the university. If you are alleging that they intended it as a fraudulent subterfuge to con the public, evade tax, employers’ obligations or even FOIA I do not see that the financial documents support that. You may think that it could have been more independent or done things better, but that is a different issue.

    What is not clear is whether any records made as agents of the university by the cleaning agency or by Muir are subject to FOIA as information held by another on behalf of a public authority. The act requires the request to be made to the public authority, so in the case of both the cleaning agency and Muir, the request would need to be made to UEA. Quite how it would be determined whether any, and if so, what information is held by Muir on behalf of UEA I don’t know, this area is legally opaque. The ICO may have already have guidelines from previous determinations. UEA is likely to say that Muir holds no information on its behalf and the matter taken from there.

    • TerryS
      Posted Jul 3, 2011 at 9:09 AM | Permalink

      If the agency’s sole client was the University and/or if the University performed many of the functions you would expect an independent entity to normally perform itself then it would be reasonable to conclude that the agency was in fact part of the University.

    • Latimer Alder
      Posted Jul 3, 2011 at 10:07 AM | Permalink

      ‘This is so, if that is the reality intended by both parties, and will be so regardless of the route by which payments are made or the financial pro forma’s used’

      I find it difficult to believe that it is only the intention of the parties, not their actions, that determines the nature of the business relationship in law. Has this ever been tested in Court? Does ‘intention’ override all other considerations.

      I imagine that HMRC aren’t usually satisfied with ‘We really didn’t mean to evade the tax, so that’s all right then – we owe you nothing’ as an excuse. Nor the ‘honest officer, I didn’t intend to drive while over the limit. I was suddenly taken unaccountably pissed while at the wheel’

      • TerryS
        Posted Jul 3, 2011 at 10:43 AM | Permalink

        It is their action that determines the nature of the business. Two entities can have signed contracts that explicitly state they are separate and that no employment relationship exists but the Inland Revenue (and the courts) don’t care. They look at how the actual relationship worked.

  19. Varco
    Posted Jul 3, 2011 at 4:10 AM | Permalink

    Anyone spot that the MR invoice doesn’t add up? Made me smile.

    • DaveS
      Posted Jul 3, 2011 at 8:20 AM | Permalink

      Given his record in managing the costs of the Scottish Parliament building, this comes as no surprise :-)

    • Navy Bob
      Posted Jul 3, 2011 at 12:18 PM | Permalink

      I believe he’s applied the standard reverse UHI correction.

  20. Ian Blanchard
    Posted Jul 3, 2011 at 4:11 AM | Permalink

    A few points to assist others with Consultancy work in the UK:

    1 – Admittedly in a different field, my boss charges out at £150 per hour (+ VAT) for Expert witness work, so £1200 per day. Based on this, the rates charged by the various members of the committee are on the generous side of realistic, especially as they will have fewer overheads than us.

    2 – It doesn’t surprise me that those billing as individuals have not invoiced excluding VAT, whereas Norton billing through Edinburgh University has separated the VAT (correctly for a commercial invoice). For an individual Consultant, they will be required to include for VAT in their end of year tax declaration.

  21. Jimmy Haigh
    Posted Jul 3, 2011 at 4:28 AM | Permalink

    This whole sorry tale is a textbook example of jobs for the boys.

  22. Brooks Hurd
    Posted Jul 3, 2011 at 8:19 AM | Permalink

    We now know that the UEA paid for an investigation of UEA. it appears to me that the UEA got what the paid for. They were exonerated by the “investigators.” I would imagine that the UEA considers this money well spent.

  23. Don Keiller
    Posted Jul 3, 2011 at 9:56 AM | Permalink

    Where are you, Nick?

  24. Posted Jul 3, 2011 at 12:54 PM | Permalink

    As I recall, the reason this matters is that attempts to get records of the review panel from the UEA were met with claims that the panel was a “public body” and separate from the Univ. If the individuals were under consulting contracts, then the work products belong to the Univ and can be obtained from them by FOIA.

  25. John A
    Posted Jul 3, 2011 at 2:50 PM | Permalink

    Where did I get the impression that the Muir Russell investigation was setup by the Commons Committee under Graham Stringer MP?

    Now we see this was a deliberate smokescreen by the UEA?

  26. Barclay E MacDonald
    Posted Jul 3, 2011 at 6:44 PM | Permalink

    I’ve been concerned with the weakening U.S. dollar against the Euro and Pound. But now, reviewing the invoices, I am really impressed how much you Brits must pay for mediocrity.

    You really should consider outsourcing to the U.S. We have an abundant, if not endless supply. We could not only provide a much better price, but more drama and even better names for the panelists, such as “The Politician Formerly Known as Representative Weiner”.

  27. Joltinjoe
    Posted Jul 4, 2011 at 2:50 AM | Permalink

    Such grudging release of information is always indicative of a cover up. It is the only rational explanation other than sheer ignorance on the part of the university. CRU seems to want to perpetuate this nightmare. With their credibility shot full of holes they have nothing better to do to continue their existence than withhold the facts.

  28. Posted Jul 4, 2011 at 3:45 AM | Permalink

    The more I think about this, the more it sticks in my craw, and the more I admire the doggedness of people who actually succeed in levering information out.

    It’s not as if any of the information now being requested has or ever did have any commercial value – like decade old data series for instance.

    How on earth can anyone justify this sort of constant, pointless dodging and feinting to provide access to what should be entirely uncontroversial information about a process that’s loudly trumpeted as transparent, I have no idea.

    Meh.

  29. Alexander K
    Posted Jul 4, 2011 at 4:42 AM | Permalink

    The UEA’s efforts as managers are ridiculous in the extreme. They appear to have a child-like belief that they can make anything up as they go along and are accountable to no-one. The hypothetical bloke running a hypothetical suburban corner shop would appear to be a management and accounting genius compared with the ‘top people’ at UEA.
    The entire affair is way below the standards that could apply in a fictional university in a fictional banana republic created for a ‘Carry On’ film, but this is real life in the UK, not ‘Carry On Up the University’.
    The cast of charlatans are a disgrace and should be stripped of power, prestige, dignity, reputation and above all, should be forced to pay the money back to the long-suffering and endlessly gulled taxpayer.

  30. Posted Jul 4, 2011 at 8:20 AM | Permalink

    Viewing the panel as independent contractors, all work they perform in almost any jurisdiction and set of laws you can think of belongs to the University, even if they neglect to collect said work from the panel. Thus the reports, emails, etc should be subject to FOI, even if not in possession of the Uni. If they allowed the panel to destroy all this, then the U is pretty neglectful of its job (imagine that). They are using the “independence” as an excuse. If the contractors had created something for which a patent could be obtained you can bet they would assert ownership in a heartbeat.

  31. David Holland
    Posted Jul 4, 2011 at 9:47 AM | Permalink

    I think the best indication of just how independent the Russell Review was and just who was running it, can be seen in the 15 April 210 email from Boulton to Lisa Williams. This is one of the emails in:

    http://www.whatdotheyknow.com/request/69023/response/185394/attach/4/Appendix%20A%20Data%20file.zip

    It also illustrates a increasing tendency to make information releases in awkward formats (or else I am missing something) that make “cut and past” commenting difficult. I have, therefore, transcribed it:

    “Dear Lisa

    I agree with Professor Jones when we met last Friday that I would send on a set of issues and questions to him. They are attached to this email. I would be grateful if you could forward them to him in confidence.

    William and I have agreed that the proper route for such communications is through you but that they should be kept strictly confidential.

    Best wishes

    Geoffrey Boulton”

  32. anon
    Posted Jul 4, 2011 at 12:06 PM | Permalink

    The blanked section reads, “no, there is no danger the panel will reach an adverse decision.”

  33. Geoff Sherrington
    Posted Jul 4, 2011 at 9:59 PM | Permalink

    Up above, we read “The University does not consider that there was a contractual relationship with Sir Muir Russell or the inquiry team; it was by way of a public appointment (as is commonplace in these circumstances).”

    A ‘public appointment’ appears to be a defined structure attracting certain actions. The subsequent actual actions do not seem to fit ‘public appointment’ in the defined sense.

    Is there a comeback for UEA making statements plausibly and allegedly intended to deceive? Is there a comeback for failure to comply with stipulated FOI procedures?

  34. Posted Jul 5, 2011 at 6:30 AM | Permalink

    I believe the relevant legal concept is “work for hire”. Any subcontractor doing work usually is and should be told that all work products for the contract belong to the contracting agency. This goes for engineers, programmers, anyone. There are work products here.

    re Nick Stokes assertion that one would not be required to track down books you loaned, try this one. Your files need organizing, so you pack them up and take them to an independent secretarial service who gets them in shape. Now you get an FOIA request for them. You can not claim you “don’t have them” just because they are in the possession of a private contractor. You are still the owner and need to retrieve them. Just so with the UEA and Muir Russell panel materials.

  35. Posted Jul 5, 2011 at 6:38 AM | Permalink

    Re Nick Stokes comment on not searching out books you’ve lent.
    consider that you sent your files to be organized to an independent business and then get a court order to produce them. You can not claim you “don’t have them” because you still own them.
    In the context, the work products of a subcontractor are “works for hire” and belong to the contractor (UEA). That UEA did not ask for them does not nullify this ownership.

  36. AngusPangus
    Posted Jul 5, 2011 at 3:30 PM | Permalink

    Steve,

    what appears to be the original Russell – Acton email (the reply to which you mention in your post) was disclosed as part of the response to an FOI request from David Holland. It’s dated 2 December 2009, timed 09.02. Interestingly, at point 5, Muir says that he can probably find 15 – 20 days for the work. A bit further on, he suggests a daily fee of “something in the region of” £1,500 (probably expecting to be knocked down a bit). This implies a total fee of £22,500 – £30,000 for the job. Nevertheless, and in direct response to MR’s fee quote, Acton offers an uplift to £40,000. Bizarre! Who ever got a quote from a contractor but then offered a third more than the upper limit suggested by the contractor???? Wonder what the University’s fianncial regulations say about paying 133% of a quoted price? Presumably, such a practice is to be discouraged in order to avoid accusations of buying favours.

    The email is in the document “Russell-Acton_091202_red”, which itself is in a folder called “Acton-Russell correspondence final” in the 9.6MB zip file at this link:

    http://www.whatdotheyknow.com/request/communications_between_uea_russe#comment-19041

  37. AngusPangus
    Posted Jul 5, 2011 at 3:40 PM | Permalink

    The first part of the redaction in the Acton email reads “Trevor Davies, PVC Research, spoke today to David King and he was most supportive AND WOULD BE PLEASED WERE YOU TO INVITE HIM TO ADVISE.” (my emphasis)

  38. Ryan S
    Posted Jul 7, 2011 at 5:08 AM | Permalink

    Times Dec 3rd 2009

    “The university at the centre of a climate change row today appointed a former civil servant to head an inquiry into claims of misconduct by its scientists. ”

    Was there any real doubt that this was a university appointed body that was set up to provide a white-wash? The Times seemed to be under that impression right from the start. I am not sure that there was ever much of an attempt to hide the fact (or at least not one that was very effective). Maybe outside of the UK it seemed different?

  39. bobdenton
    Posted Jul 3, 2011 at 3:26 PM | Permalink

    Don’t get too hung up on the tax evasion issue. For the purpose of taxation the members of the review panel were independent contractors. All the facts and records, including the financial records support this. There is absolutely no evidence that there was evasion of tax or an arrangement to evade tax.

    The issue is whether the arrangement amounts, to use an analogy with taxation, to an evasion or an avoidance of FOIA. There is no evidence that the Review Panel was set up to evade FOIA. The issue is whether and to what extent the arrangement avoids the FOIA. There is little learning available on this, though the Act has been in force for 5 years now and this may be an issue which the ICO has dealt with before and there may be applicable criteria known to the ICO.

    In contract law the intention of the parties is the legally enforceable framework, so far as it is consistent with public law. Here we have a reasonably clear contractual framework colliding with public law – the FOIA. As a matter of public policy, how far can a public authority avoid the reach of FOIA by engaging independent contractors to carry out its internal functions. As with tax cases, each case will turn on its own facts, but there must be some generally applicable criteria. I don’t expect that the fact that the contractors carry out internal functions of a public body will make them a public body. They don’t fall within the definition. However, I anticipate that the ICO would be reluctant to conclude that such an arrangement accidentally placed information, that was created at the request of the public authority and in discharge of the public authorities functions, beyond the reach of FOIA. In appropriate circumstances, my guess is that the ICO would decide that information was held by another body on behalf of the public authority.

  40. Posted Jul 3, 2011 at 5:22 PM | Permalink

    Personally I don’t mention this in connection with any kind of tax evasion at all – I don’t believe any was attempted in any deliberate fashion, and IR35 always was a blunderbuss where a snipers rifle was required.

    But the way that he revenue view the relationship between the two parties might inform any precedent that other authorities decide to apply.

    It’s a seemingly deliberately tangled and inconsistent affair anyway, and that says something.

  41. TerryS
    Posted Jul 3, 2011 at 6:03 PM | Permalink

    > In contract law the intention of the parties is the legally enforceable framework, so far as it is consistent with public law.

    Except that was overturned in April 2000 with a clause added to the budget known as IR35. What this means is that the Inland Revenue are not bound by the terms of a contract made between two entities. They can ignore the contract and look at the actual relationship in making their determination.

    I don’t believe that any tax evasion has taken place and I don’t believe that the arrangements were entered into with the intention of avoiding FOIA. I do think, however, the UEA is now attempting to redefine the relationship so as to avoid FOIA requests.

    And….

    There is no formal contract. You know, one of those things with multiple sections and clauses defining everything from what equipment and services the UEA will provide them with to how much personal and public liability insurance cover they have.

    Public liability insurance is one of the determining tests the Inland Revenue use when deciding whether you are simply an employee or a separate entity. If the team was a separate entity then they should have had their own public liability insurance for when they worked at the UEA. If they where part of the UEA then the UEA’s insurance would cover them.

  42. bobdenton
    Posted Jul 4, 2011 at 3:36 AM | Permalink

    Third parties, including the IR, have never been bound by a contract, which regulates determines rights and responsibilities between the parties to the contract. Whether a particular contractual arrangement avoids tax is a question of mixed fact and law the consideration of which occupies fully 50% of the time of the highest court in the land. The general principles are fairly clear and are consolidated in IR35, which simply regulated the situation where persons bearing all the indices of an employee, could by setting up an intermediary company between them and their employer, avoid a certain amount of tax. One of the principal indices of distinction between an employee and independent contractor is “independence” and the net effect of IR 35 is that if the claimed contractor can act only under the control of the employer he is an employee and not an independent contractor.

    If you consider Muir, not only could he act independently of UEA, it was of the essence of the contract between them that he could act independently. His review was to be presented as an independent review. If it couldn’t be it would be of no value to UEA. So, Muir is a classic case of an independent contractor. That being so, he is not an employee of UEA, nor are his co-panelists.

    Steve’s argument proceeds on the basis that the nose I have today is the same nose I had 7 years ago, even though not a single cell in my nose existed 7 years ago and no cell that existed 7 years ago now exists. It is premised on the true nature of the review panel being an internal committee of UEA. So far as I can see, the true nature of the transaction, the commerciality of it so far as UEA was concerned, was that the Review Panel was not a committee of the university and it was never intended to be. If it was, UEA has miserably failed in achieving what it set out to achieve – an external review by a party independent of the university. Unless it was legally impossible for them to achieve this from the outset, and that could be argued, then, from the documentation, which provides abundant written evidence of all the major provisions of the contract, they appear to have achieved it.

    But, for the purpose of FOIA, the only difference between a university committee and the review panel is that the later has this quality of “independence”. It is not part of the public authority. Can that avoid the reach of FOIA just as service companies sometimes avoid the reach of tax legislation – that is also a mixed question of fact and law.

    There is an alternative approach. Independent contractors often use tools and materials supplied by the employer and use them to produce a product. The tools, the product and any waste are the property of the employer, even while they are in the possession of the contractor. It may be that by analogy, the information in the possession of the review panel remains the property of UEA and is therefore dis-closable under FOIA.

  43. TerryS
    Posted Jul 4, 2011 at 5:03 AM | Permalink

    Section 6(2)(b) of the FOIA states:

    (b) a company is wholly owned by a public authority other than a government department if it has no members except—
    (i) that public authority or companies wholly owned by that public authority, or
    (ii) persons acting on behalf of that public authority or of companies wholly owned by that public authority.

    The members of the Russell Review were acting on behalf of the UEA and the Russell Review was fully owned by the UEA. That is, it had no financial independence from the UEA.
    It might have had the independence to arrive at whatever conclusion it wished, but this is only one facet of independence does not make it a separate entity.

  44. Steve McIntyre
    Posted Jul 4, 2011 at 7:19 AM | Permalink

    To Bob Denton:

    Good analysis. Your comments on the limitations of viewing the Panel as a university committee are sound ones, especially the distinction between an independent contractor and an employee.

    A question here. I was reacting to the abundant evidence that the Panel lacked many of the attributes of most independent contractors e.g. its own bank account, its own liability insurance, it did not issue invoices or pay bills. It wasn’t like hiring an independent auditing firm.

    As you say, it is a mixed question of fact and law with some fairly sui generis elements. I’m wondering now how standard inquiries are arranged legally. Do they have bank accounts or does the government pay their bills directly? That would shed light on the various analogies.

  45. Posted Jul 4, 2011 at 10:30 PM | Permalink

    “the information in the possession of the review panel remains the property of UEA and is therefore dis-closable under FOIA”
    Actually, I doubt that. The language of the FOI and EIR says that authorities must produce records that they hold, not records that they own.

  46. bobdenton
    Posted Jul 4, 2011 at 6:22 AM | Permalink

    This is aimed at “”bodies corporate” spun off by public authorities. If one member of the owned spin off is not owned or acting on behalf of by a public authority the provision does not apply.

    You can own a corporation, a fictitious legal personality, you cannot own a real person, not these days.

    Muir could not be owned. The Panel, if it was an unincorporated partnership, but that looks unlikely, could not be owned. It had no existence separate from the partners.

    What you can argue is that the situation is so similar to a situation contemplated by the legislature – the Panel existed exclusively for a purpose of the university and was wholly financed by it – that similar legal consequences should follow to those envisioned by S6. But those consequences would still need to be fitted into the other provisions of the FOIA.

  47. Posted Jul 4, 2011 at 7:35 AM | Permalink

    Re: Steve McIntyre (Jul 4 07:19),

    Steve McIntyre’s comment beginning “Good analysis” (Jul 4, 2011 at 7:19 AM) refers to bobdenton’s remarks beginning “Third parties…” (Jul 4, 2011 at 3:36 AM). This isn’t clear when the thread is viewed with some browsers.

    Steve: I’ve added a prefix to the comment.

  48. bobdenton
    Posted Jul 4, 2011 at 11:55 AM | Permalink

    Public Enquiries held under the Public Enquiries Act 20005 are funded by the Minister.
    Royal Commissions are set up by warrant issued under the royal prerogative, the warrant being issued by the relevant secretary of state out of whose budget the Royal Commission will be financed.

    I can’t think of another enquiry equivalent to that set up by UEA, but they do not attract the rights, privileges and immunities of a Public Enquiry or Royal Commission and it didn’t in any way parallel the rules for selection of personnel or procedure set out in the Public Enquiries Act. It’s nearest equivalent is what is called a “domestic tribunal” in administrative law. These are funded by whoever sets them up.

    There appears to be no prescribed format for funding any of these types of enquiry and nor is there provision for the associated costs to be paid by anyone other than those setting them up.

  49. TerryS
    Posted Jul 4, 2011 at 7:43 AM | Permalink

    Bob, it specifically mentions “persons acting on behalf” and company covers everything from partnerships, organisations and associations to PLC’s. The law recognises that there are many forms of company not just incorporated entities.

    As for control, consider the following 2 scenarios:

    1. Dependant upon the UEA
    Acton: I want you to review blah blah blah
    Russell: Ok. I’ll charge 40k for me and have to get more people
    Acton: Ok. Let me know.
    ….
    Russell: I’m hiring Steve McIntye, Andrew Montford, Anthony Watts…
    Acton: Er. Well done. Thats a fine a job you done. Here’s your money.
    Russell: But I haven’t done enything yet!
    Acton: You’ve done enough. We will not be paying any more expenses or paying for any other people. Goodbye.

    2. Independent of the UEA
    Acton: I want you to review blah blah blah
    Russell: Ok. It will cost you 200k.
    Acton: Ok. Here’s one of our boilerplate contracts with an attached schedule for you to sign.
    Russell: Thanks.
    ….
    Russell: I’m hiring Steve McIntye, Andrew Montford, Anthony Watts…
    Acton: Doh!!!

    The scenarios are extreme examples, but they demonstrate how the UEA had control. Just because they chose not to exercise that control and, for example, veto panel members by refusing to hire them does not mean they did not have it.

  50. Steve McIntyre
    Posted Jul 4, 2011 at 7:55 AM | Permalink

    Muir Russell’s first act, according to the invoices, seems to have been to involve Geoffrey Boulton, an 18-year former employee of UEA who had just signed the petition supporting CRU, despite Acton’s assertions of the importance of the panel not involving people connected to the university or to the climate change debate. It would be interesting to know whether Muir Russell copied Acton or the University about Bouton’s involvement. Boulton’s per diem was also nearly twice the per diem charged out by the University of Edinburgh for Peter Clarke, a surprising difference given that Clarke’s fees were probably marked up by the University.

  51. bobdenton
    Posted Jul 4, 2011 at 9:07 AM | Permalink

    It mentions “persons acting on behalf of “ the public authority as members of a company “owned” by a public authority. So first, you must have a company that is capable of being owned. A real person or a group of real persons cannot be owned, this limits the bodies to which the provision applies to corporations. Neither Muir, nor Muir and collagues were a corporation. Though it is possible that they were a company, in the original meaning of a partnership they were not a corporation – a fictitious legal entity capeable of being owned by a real person or corporation.

    This provision anticipates a situation commonly encountered with conglomerates, where a holding company has many wholly owned subsidiaries set up for variuos purposes, and the subsidiaries have cross holdings in each other and members of the holding company are members of the subsidiaries, but no legal person who is not wholly owned by the holding company or its wholly owned subsidiaries, or a member of the holding company, is a member of the subsidiary. For many purposes the subsidiares are then treated as part of the holding company.

    Public authorities mentioned in Sch 1 FOIA can spin off wholly owned subsidiary companies, which are not mentioned in Sch 1 FOIA, but those spin offs are themselves public authorities by virtue of S6 if they are wholly owned. The statutory test is ownership – property rights – not financial influence.

  52. TerryS
    Posted Jul 4, 2011 at 9:52 AM | Permalink

    snip – sorry about this, Terry. Legal terms have established usages that you’re not paying attention to and it isn’t worth arguing. No judge or tribunal is ever going to say that the Muir Russell panel was a “company” and further discussion pursuing this is pointless. Sorry.

  53. bobdenton
    Posted Jul 4, 2011 at 11:07 AM | Permalink

    All that is intended to achieve is that for the purpose of the Income and Corporation Taxes, corporations will be subject Corporation Tax, partnerships will be subject to Income Tax and unincorporated associations which have an existance separate from their members, think of the trustees of a charitable trust in receipt of trading income, are subject to Corporation Tax. It is a statute specific definition, as is the definition in FOIA 2000.

  54. TerryS
    Posted Jul 4, 2011 at 11:43 AM | Permalink

    Did you read it?

    The characteristics of an unincorporated association have emerged primarily from case law.

    In other words courts of law have determined that these are the characteristics of a company. This will not just be tax cases, it will be disputes over property ownership, contracts with 3rd parties, liability and pretty much anything else you can think of going to court for.

  55. bobdenton
    Posted Jul 4, 2011 at 12:03 PM | Permalink

    I think you’ll find that the courts have determined that these are the characteristics of an unincorporated association, as opposed to “a body corporate” or “one which is recognised in law as being something else (for example, an incorporated body or a partnership)”.

    You see I did read it. And I read it again in the extract included in your post

  56. Steve McIntyre
    Posted Jul 4, 2011 at 12:10 PM | Permalink

    If, as you surmise, the panel is a “domestic tribunal” and therefore not attracting “the rights, privileges and immunities of a Public Enquiry or Royal Commission”, then doesn’t this pull it into the ambit of the university’s FOI obligations, just as much as if it were a university committee.

    On this theory, the panel would not appear to be an “independent contractor” along the lines of a plumbing company, but something else. (Each of the members of the panel do still appear to be independent contractors).

  57. TerryS
    Posted Jul 4, 2011 at 12:32 PM | Permalink

    Last try Bob.

    A company is either a “body corporate” or an “unincorporated association”.
    The UK courts have determined certain criteria that characterise an “unincorporated association”.
    The Russell Review fits these criteria and can therefore be classed as an “unincorporated association”.
    Since an “unincorporated association” is also a company, the Russell Review is a company.
    Because the Russell Review had no finances of its own and was instead financed by the UEA it is wholly owned by the UEA.
    Because it is wholly owned by the UEA it is subject to the FOIA.

    Just in case you want to reinterpret the meaning of company for the FOIA I would like to draw your attention to section 6(3) which states:

    In this section—
    “company” includes any body corporate;

    Note the word “includes”. That word means that “company” is more than just body corporate.

  58. bobdenton
    Posted Jul 4, 2011 at 2:02 PM | Permalink

    Frequently, for instance in employer/employee disputes, there’s a final right of appeal to an independent arbitration panel, the membership of the panel being nominated by and agreed between unions reps and the employers. That panel is not a committee of the employers, though the employers usually fund it. Nor is it a public tribunal. It’s an independent panel of arbitrators and a type of domestic tribunal. The arbitrators would have a contractual arrangement with the employer and would be independent contractors.

    There are various tribunals of this sort, some set up under statutory procedures, most not. I believe the review panel is legally similar to these tribunals. Where an arbitrator is appointed pursuant to an agreement between the parties the arbitrator is independent of the parties and I see no reason why a single party cannot appoint an arbitrator independent of himself.

    The records of the arbitrator may well be information held by another on behalf of the university however.

  59. Tom Gray
    Posted Jul 4, 2011 at 2:26 PM | Permalink

    It is commonly recommended, by authorities on innovation, that R&D divisions and projects for disruptive and innovative technology be set up as fully independent organizations. If this is o not one then the inertia of the established interests in the parent company will stifle the innovation. These new entities will be strictly independent. They will report to no one in the parent organization and yet still be a creature of that company since they act only in its interests. The innovative firm will report to the board of the parent company or a parent holding company for strategic direction but the day to day operations of the innovative company to fulfill that strategy will be entirely its own.

    Note that the independence of the innovative company is an essential reason for its existence. It is set up as independent to escape the influence of vested interests. Now I find this quite similar to a review organization set up to operate outside of the influence of the parent organization.

    Would FOI regulations apply to a public organization with this structure?

  60. TerryS
    Posted Jul 4, 2011 at 3:18 PM | Permalink

    There a law for that:
    Arbitration Act 1996 and The Tribunal Procedure (Upper Tribunal) Rules 2008
    Nope. Doesn’t look like arbitration or a tribunal.

    Steve- this is part of the court system and not applicable.

  61. Posted Jul 4, 2011 at 11:34 PM | Permalink

    If they own them, why wouldn’t they hold them?

  62. bobdenton
    Posted Jul 5, 2011 at 2:42 AM | Permalink

    Re: Nick Stokes Posted Jul 4, 2011 at 6:22 AM

    It says,” information is held by the public authority” – if it is “held by the authority” or “held by another person on behalf of the public authority.”

    Consider your lawn mower. You own it, but its in your neighbours garden. Is it torturing language to say it is held by your neighbour on your behalf. Would you be obliged to yield it up under the parallel provision in the Freedom of Lawn Mowers Act.

    Probably, it goes further than that. Information will likely be “held by another on behalf of the authority” if it is within the “possession, power or control” of the authority. That is the normal test in the discovery stage of legal proceedings where all documents relevant to the proceedings, held by one party, are required to be produced to the other side.

  63. Posted Jul 4, 2011 at 11:35 PM | Permalink

    My last comment was meant for Nick @ http://climateaudit.org/2011/07/02/more-mendacity-from-east-anglia-revealed/#comment-297263

  64. Posted Jul 5, 2011 at 4:50 AM | Permalink

    Bob was postulating a situation where records held by (presumably) Muir Russell or colleagues might be “owned” by UEA.

  65. mattu
    Posted Jul 4, 2011 at 11:46 PM | Permalink

    So A is either B or C.
    Since D is C, D must also be A?

    I spot a flaw in this reasoning. Do you not see it?

  66. TerryS
    Posted Jul 5, 2011 at 12:54 AM | Permalink

    Actually the logic is:

    A is the set of all things B and all things C
    Since D is C, D must be in A.

  67. bobdenton
    Posted Jul 5, 2011 at 3:06 AM | Permalink

    Re: TerryS Posted Jul 4, 2011 at 12:32 PM.

    Replies have stopped showing up as nested in my browser. Just in case this is not just my browser I should say this is in response to TerryS’ post above.

    I’ve given up on the long answer because I’m repeating myself, but at length.

    This is the short answer. A company is “xyz” for the purposes of “this act” “that section” or whatever. You have conflated two acts, and if you read the definitions in those acts you will see expressions like those above qualifying each definition. You have transposed a definition between two acts that have no purpose in common. One has the purpose of imposing an appropriate form of taxation on various forms of busness activity. The other provides for the disclosure of information held by public authorities.

    I’ve made my point about the centrality of ownnership in the relevant provisions of FOIA. I do not believe that UEA did or could have owned Muir or the members of the panel, individually or collectively, and they could not therefore have been a wholly owned company of UEA. This relates back to the very origin of the joint stock corporation. It created a legal person, separate from its members and capeable of ownership by a fluctuating body. It was a major factor in the growth of the capitalism that drove the industrial revolution. Neither an individual nor a partnership, could or can be owned and neither could or can have a fluctuating body of members. The rights UEA had against the panel were contractual rights to a service, not property rights.

  68. Posted Jul 5, 2011 at 5:14 AM | Permalink

    Re: bobdenton (Jul 5 02:42),
    Bob, Goodness knows where this response will end up. But here goes:
    Your proposition was that:
    “Independent contractors often use tools and materials supplied by the employer and use them to produce a product. The tools, the product and any waste are the property of the employer, even while they are in the possession of the contractor. It may be that by analogy, the information in the possession of the review panel remains the property of UEA and is therefore dis-closable under FOIA.”
    That test of ownership does not imply “holding on behalf of”. UEA would not have expected to get back any of those items held by review members.

    A variant on your lawnmower analogy – suppose you get a FOI request for any book you have that mentions Michael Mann. Well, you look through your bookshelves. But do you have to chase up every book you have ever lent?

    This is actually happening with MM. I’m sure he took lots of things to PSU that your test would say are owned by UVa (eg copies of emails). But no-one (not even Cucci) seems to think they are subject to Va FOI or CIDs.

  69. Venter
    Posted Jul 5, 2011 at 6:21 AM | Permalink

    Cucci will first see what UVa have and if anything of UVa was carried over by MM to PSU he’ll decide how to tackle it.

    MM is not going to get away from the truth being found out.

  70. KnR
    Posted Jul 5, 2011 at 5:01 PM | Permalink

    Work Mann did while it was at UVa is subject to FOI as that work belongs to UVa and UVa is subject to FOI . Its really that simple , dance all you like you can’t avoid that. The question is why fight so hard and spend so much , given that they been happy to release other’s e-mails to Greenpeace its clear its not a university policy which is the problem but rather they chosen to make this a ‘special case’
    The irony is they may be nothing in them , but who now would trust UVa over this given their behavior their always going to suspected of holding stuff back.

  71. Venter
    Posted Jul 5, 2011 at 6:22 AM | Permalink

    Correction, MM is not going to get away without the truth being found out

2 Trackbacks

  1. [...] [...]

  2. By Eye on Britain (2) on Jul 3, 2011 at 7:29 AM

    [...] More HERE [...]

Follow

Get every new post delivered to your Inbox.

Join 3,252 other followers

%d bloggers like this: