Evading Mosher’s FOI

Climategate 2.0 emails contain an interesting backstory on East Anglia’s evasion of Steve Mosher’s request for something as simple as university policies that governed entry into confidentiality agreements. Palmer consulted university specialists, receiving an answer that was adverse to the line that they were taking in their CRUtem refusals. Rather than providing this information to Mosher, Palmer adopted a tactic borrowed straight from Sir Humphrey. He pretended that he didn’t understand the question and asked Mosher for clarification – undoubtedly on the off-chance that Mosher would not return the ball. Palmer’s tactic succeeded. They avoided answering the question. The Climategate 2.0 backstory, especially Jones’ candid answers, make fascinating reading, as it shows that there were indeed compulsory university policies which were related to a term of standard employment contracts – information provided directly to Palmer.
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In response to CRU’s initial refusal (reviewed yesterday here), Mosher sent an FOI request (see July 24 – 3069) that, in addition to requesting confidentiality agreements for five countries, asked for policies and procedures governing East Anglia employees entering into confidentiality agreements:

Dear Mr. Palmer:
Pursuant to the Environmental Information Regulations, I hereby request
the following information …

In addition, I hereby request the following information:
1. A copy of policies and procedures regarding employee responsibilities regarding entering into confidentiality agreements.
2. A copy of policies and procedures regarding employee responsibilities regarding the preservation of written agreements.
3. A copy of policies and procedures regarding employees entering into verbal agreements.
4. A copy of instructions to staff regarding compliance with FOI requests.
I am requesting this information as part of my academic research.
Thank you for your attention,
Steven M. Mosher

About two weeks later (Aug 5 10:39 – 3069), Palmer drew this request to the attention of his most regular correspondents (Jones, Mcgarvie), but also Jonathan Colam-French (who was responsible for hearing FOI appeals), Annie Ogden, Head of Communications (copied on numerous emails), Andrew Mee (presently a “Learning Technologist in Information Services”) and Steve Whitehead (presently an Assistant Purchasing Officer). Palmer requested assistance:

Folks,
The next ‘other’ request relating the the CRU agreements & data.

The first part of the query will be answered in line with the answer given to other requesters for the agreements.

In regards the second part, I will need some assistance as noted below

1. A copy of policies and procedures regarding employee responsibilities regarding entering into confidentiality agreements.

Steve, do we have any contracting policy on this? Phil – anything with CRU on
responsibilities regarding entering agreements on behalf of CRU? I don’t think we wish to state that we don’t have any policies or procedures in place, but I’m not sure what to actually put here…

2. A copy of policies and procedures regarding employee responsibilities regarding the preservation of written agreements.

Ah, records management rears it’s head….We have a general statement on our website regarding our responsibilities for RM but we do lack any overarching records retention schedule or policy – Phil, does CRU have anything in-house?

3. A copy of policies and procedures regarding employees entering into verbal agreements.
See question 1; same issue here although more likely to have a `nil’ response here – consequences of that?

4. A copy of instructions to staff regarding compliance with FOI requests.

We have web guidance that can be referred to, and a brochure that I distribute that could go here…. and a statement regarding the training on offer
Cheers, Dave

Jones, with his characteristic promptness, responded two hours later (Aug 5 12:15 – 856) to all of the parties on the original email. Jones said that the “Registry” went through their agreements, but that they “sometimes ignored” Registry advice. Palmer had noted that there were responsive brochures and documents, but Jones warned him that he “wasn’t sure that [Palmer] should go down that route” i.e. provide Mosher with responsive documents, a direction that Palmer heeded.

(Jones inline answers are italicized below).

Subject: Re: FW: FOI/EIR request [FOI_09-69]
Dave,
A few responses inline
Cheers
Phil

At 11:52 05/08/2009, Palmer Dave Mr (LIB) wrote:
Folks,
The next ‘other’ request relating the the CRU agreements & data.
The first part of the query will be answered in line with the answer given to other requesters for the agreements.

In regards the second part, I will need some assistance as noted below

1. A copy of policies and procedures regarding employee responsibilities regarding entering into confidentiality agreements.
Steve, do we have any contracting policy on this? Phil – anything with CRU on responsibilities regarding entering agreements on behalf of CRU? I don’t think we wish to state that we don’t have any policies or procedures in place, but I’m not sure what to actually put here…


I don’t think there is anything – if there is I’ve never seen it. People in
CRU (not just me) enter into agreements about data and/or writing papers and getting involved in projects. UEA signs research contracts for us. UEA employees do the work, but UEA administers the grant. The various agreements that UEA signs may say things about data access, but it will vary depending on the funding body. Some are more stringent than others. The Registry goes through these. They mostly help the researchers by not letting ourselves sign away any rights and IPR. We do sometime ignore the Registry advice, preferring to fall back on the verbal agreements we have with the funders (their project officer). If we ever have a problem, we probably wouldn’t work with them again. This has happened with some scientists I have collaborated with in the past.

2. A copy of policies and procedures regarding employee responsibilities regarding the preservation of written agreements.
Ah, records management rears its head. We have a general statement on our website regarding our responsibilities for RM but we do lack any overarching records retention schedule or policy Phil, does CRU have anything in-house?

CRU has nothing in this regard.

3. A copy of policies and procedures regarding employees entering into verbal agreements.
See question 1; same issue here although more likely to have a nil response here -consequences of that?


As said in the 2 pager we’re working on, we put some of the agreements in the letters we wrote to Met Services requesting data (some of which we paid for). There has been a lot of time and effort gone into making these contacts. It seems as though this counts for nothing. Again – unlikely to be anything. People agree things with other academics at meetings. This is how science works.

4. A copy of instructions to staff regarding compliance with FOI requests.
We have web guidance that can be referred to, and a brochure that I distribute
that could go here. and a statement regarding the training on offer

I’m not sure you want to go down this route!

Palmer immediately forwarded the email thread with Jones’ troubling answer to two other UEA officials, Matthew Hume, (presently Commercialisation & Patents Administrator) and Alan Walker, Research Services Manager (see Research Enterprise and Engagement organization chart here.)

Subject: FW: FOI/EIR request [FOI_09-69]
Importance: High
Matt,
Please note Phil Jones’ response to question 1 below [about "ignoring" Registry advice] – would REE [Research Enterprise & Engagement] have anything that would be relevant to this request?

A bit of context – in response to a rejection of a request for data, we have received over 50 requests for agreements, data and a combination thereof in relation to data sets that CRU maintains/holds. This is pretty high profile and has been noted in blogs in the Guardian and Telegraph as well as in the source of all of this (see: [2]http://www.climateaudit.org). Be assure that whatever we state in response to this request is likely to be on the web, shared and very public within hours of sending….

We have a request from another individual exactly the same as below so there will be multiple recipients of the answer we give. Our deadline for a response is 21 August but as I’m on hols commencing 17 August, the ‘effective’ deadline is 14 August.
Cheers, Dave

Hume wrote back to Palmer immediately cc Walker (Aug 5 15:16 – 856) saying that they had had a “good laugh” at Jones’ answer and recommended that Palmer withhold this information from Mosher. Hume told Palmer that the University had clear policies that prohibited staff from entering into confidentiality agreements and which required all confidentiality agreements to be signed and kept on file:

Subject: RE: FOI/EIR request [FOI_09-69]
Hi Dave,
We all just had a very good laugh at Phil’s comment “We do sometime ignore the Registry advice”… If this is going to have the kind of publicity that you suggest, I would prefer if you do not quote ANY of his answer to question 1.

The UEA actually has a very strict policy on entering into confidentiality agreements, however as Phil so blithely admits, a handful of academics take it upon themselves to foul things up!

As you will note from points 1 & 2 of our policy; no UEA employee, except members of our office, has the right to sign anything on behalf of the university – the problem is that funders/other parties can be sneaky by sending the agreement in the name of the academic.

Our policy is:-

Someone from the Commercialisation & Enterprise Team should approve and sign all Confidentiality Agreements:

only our staff have the legal authority to sign agreements on behalf of the University

all agreements should be between the University of East Anglia and the party requesting the agreement (not an individual academic or school)

we will negotiate with the other party on any issues within the document that may be contentious by doing this we will ensure you the best protection of your IP rights

(In special circumstances, authorisation may be obtained from the Commercialisation & Enterprise Team allowing you to sign the agreement yourself. Such authorisation must always be obtained in advance, will only be valid for a specific instance, and the standard university agreement must be used without amendment – unless we have authorised an amendment)

In all cases, a copy of the fully signed confidentiality agreement must be retained
in our office.

FYI – we are currently finishing off the final touches to our new intranet pages – there will be a page on CDA’s with this info on it. Also, I am away on holiday next week (10th -14th), so if you do any more info on our policy regarding agreements etc, please contact Anne Donaldson, one of our Commercialisation Manages
Thanks
Matt.

Within minutes, Palmer responded (Aug 5 15:23 856) telling Hume and Walker that Hume had presented Palmer with a “conundrum”.

Subject: RE: FOI/EIR request [FOI_09-69]
Matt,
Thanks very much for this… You have given me a bit of a conundrum on how to respond but we do at least have something to work with….

What policy are you actually quoting from and is it publicly available? As the request was for the entire policy, is there any issue with making the policy publicly available? If the policy in regards confidentiality agreements is within a larger document with unrelated material, I am happy to quote but I do think we will need to provide a proper citation…
Cheers, Dave

Palmer immediately (Aug 05 15:32 856.) wrote to his original correspondents (Jones, Colam-French, Mcgarvie, Ogden) explaining the conundrum, wondering whether the policy had been in effect when the original “agreements” had been entered into:

Subject: FW: FOI/EIR request [FOI_09-69]

Folks,
In response to one of Phil’s earlier emails regarding any policies regarding entering into confidentiality agreements etc, I sent a query to REE to determine what relevant information they might have… and received the below response to which I have responded as you can see…

This does present something of a ‘issue’ in terms of drafting a response and dealing with any potential follow up request/query regarding our practices in this regard. I wonder if whether said policy was in force at the time the agreements were entered into would be a way around this… the request is for current policies clearly…. I will enquire further with Matt Hume….
Cheers, Dave

Jones then wrote to Matthew Hume (Aug 5 16:58 856). Jones told Hume that his comments had been “tongue in cheek” and that the agreements in question were “not really confidentiality agreements” – an astonishing statement given the line taken with respect to FOI requesters. Jones went on to say that “there is never any obligation on CRU or UEA” arising from these agreements which are “generally about agreeing to work together on something”:

subject: My earlier comments
Hi Matt,
My comments were tongue in cheek! The agreements that we’re talking about are not really confidentiality agreements that you’re talking about. Lots are unwritten agreements that we make scientist to scientist. Where there are written agreements they are signed between me (or previous Director’s of CRU) with other academic institutions, which were not with their central administration (but again a sub part). CRU doesn’t initiate these, but if the other side wants it and it will help us do some work then we go ahead and sign. There is never any obligation on CRU or UEA. They are generally about agreeing to work together on something.

The agreements Dave is talking about are ones that relate to us not making climate data available to third parties, which we have got from a National Met Service.

Jones went on to complain that the problem was not CRU’s disregard for university and public policy, bu that “blogsites” have alloed “climate change deniers” to find one another:

FOI is causing us a lot of problems in CRU and even more for Dave, as he has to respond to them all.

It would be good if UEA went along with any other Universities who might be lobbying to remove academic research activities from FOI. FOI is having an impact on my research productivity. I also write references for people leaving CRU, students and others. If I have to write a poor one, I make sure I get the truth to the recipient in a phone call. I’m also much less helpful responding to members of the public who email CRU regularly than I was 2-3 years ago. I’ve seen some of what I considered private and frank emails appear on websites.

Issue here is blogsites have allowed these climate change deniers to find one another around the world.

Hume responded the next morning (Aug 06 09:24 2274.), suggested that Jones would be able to deflect criticism about the confidentiality agreements by showing that university policies “removed” the decision to enter the agreements from Jones’ control. Hume noted to Jones that a term of the university’s employment contract with staff prevented staff from entering into contracts without approval, observing that he had passed this information on to Palmer (this email is not in the Climategate dossier so far):

Hi Phil,
My apologies – no offence meant – your comment amused us.

I know both you & Dave have been coming under a lot of flack from these people, and I agree the FOI rules are a pain – unfortunately they are rules we have chosen to abide by…

Myself, and the REE office, totally support you and your right to protect your research – especially when it is questioned by people who’s intentions are so antagonistic and destructive. And I surmised that these people are trying to gather information that you/the university has agreed to keep confidential. Maybe by showing these people that we remove that responsibility for this out of your control – i.e. that you were not the person who signed these agreements; but they were signed on behalf of the University; then they will have to re-think about contesting them?

I passed another paragraph onto Dave last night. This is from the employment contracts that all staff agree to when working here:

“Members of the ATR/ATS Staff shall not, in connection with any invention, patent, process or manufacture, have authority to make representations on behalf of the University, or to enter into any contract or to be concerned in any transactions on behalf of the University whatsoever without the express consent of the Council.”

It may or may not be appropriate to answer the question posed; but hopefully Dave will be able to make something with it. If I can be of any more help, please feel free to ask.
Regards
Matt.

Jones wrote back to Hume (Aug 6 10:27 2274.) warning that if Palmer goes down the route suggested by Hume (i.e. informing Mosher of the policies and procedures that prohibited Jones from entering into the alleged confidentiality agreements without university approval), this would open the university up to further criticism. Jones also worried about David Holland’s pending appeal for off-balance-sheet IPCC review comments and correspondence:

Subject: RE: My earlier comments
Hi Matt,
Thanks for the thoughts. These people don’t have logic as their strong suit. If Dave goes down the route you suggest, I think they will come back on UEA for not supervising me properly!

There is another FOI/EIR that has gone to the FOI Commissioner. This one is potentially more important as it relates to email correspondence between the authors of a chapter in the last IPCC (Intergovernmental Report on Climate Change) Report.

I think people shouldn’t be able to request my emails just because I happen to work for a government funded University. Perhaps UEA needs a ruling on requests for our emails. …
Cheers
Phil

Presumably the matter continued to be discussed among the parties, but the Climategate 2.0 curtain goes down on this topic.

Nonetheless, Palmer indeed had a conundrum: the university had clear policies prohibiting confidentiality agreements without approval and requiring retention of such agreements; staff contracts even included this requirement as a term of employment.

What to do? What to do?

Palmer’s manouevre was straight out of Sir Humphrey’s playbook and succeeded beyond any reasonable expectation. Although Palmer had all the materials on hand to respond to Mosher’s question, he pretended that he didn’t understand and sent out a “Clarification Request”.

Subject: Freedom of Information Act request (FOI_09-69) – Clarification request

Mr. Mosher,

Attached please find information on the handling of your request received 24 July 2009 for your review and action.

Cheers, Dave Palmer

FREEDOM OF INFORMATION ACT 2000 – INFORMATION REQUEST
(Our Ref: FOI_09-69)
Further to your request for information received on 24 July 2009, I have consulted relevant units within the University and, pursuant to my obligations under section 16 of the Act to provide advice and guidance, I am writing to request clarification of several aspects of your request. Apologies for the delay in responding to you on this matter, but as you may know, we have received a large number of requests for information under the Act recently and it is taking some time to deal with each request.

In your request, you have asked for a copy of policies and procedures regarding employee responsibilities regarding entering into confidentiality agreements and verbal agreements, and for a copy of policies and procedures regarding employee responsibilities regarding the preservation of written agreements.

The University does not have one, overarching policy or procedure regarding entering into confidentiality or verbal agreements. Each division within the University has policies and procedures specific to their area of work. This also applies to the preservation of written agreements. In order to answer your question for all of the University, it is highly likely that we would exceed the statutory appropriate limit of 18 person hours to locate, retrieve & review the requested information.

In order to avoid this situation, I would therefore ask you to clarify what aspect of the University’s work would be the focus of your request for such policies and procedures. For example, given the nature of the other components of your request, are you simply interested in policies in relation to research activities?

Please note that the statutory timescale of 20 working days as defined by the Freedom of Information Act 2000 will be ‘suspended’ until such time as we receive clarification of your request. Once that is received, the ‘clock’ will recommence, your request considered, and you will receive the information requested within the statutory timescale, subject to the information not being exempt or containing a reference to a third party. You will be informed of any exemptions or references to third parties.

I trust this is to your satisfaction and look forward to your reply.
Yours sincerely
David Palmer
Information Policy & Compliance Manager
University of East Anglia

Some assertions in Palmer’s letter seem untrue on their face. Palmer told Mosher that “the University does not have one, overarching policy or procedure regarding entering into confidentiality or verbal agreements. Each division within the University has policies and procedures specific to their area of work. This also applies to the preservation of written agreements. In order to answer your question for all of the University, it is highly likely that we would exceed the statutory appropriate limit of 18 person hours to locate, retrieve & review the requested information.”

However, Matthew Hume’s emails clearly state the opposite – that the University did have “overarching” policies and procedures governing confidentiality and verbal agreements. And governing the “preservation of written agreements”. However, rather than providing this information to Mosher, Palmer pretended that he required “clarification”. Palmer’s manouevre succeeded. Mosher didn’t provide the requested “clarification” and the FOI request remains pending to his day.

Maybe Mosher should send Palmer the “clarification” that he requested.

116 Comments

  1. Dennis Wingo
    Posted Dec 28, 2011 at 1:47 PM | Permalink

    Steve

    As someone who worked at a University Research Institute for almost ten years (in the USA), I can tell you that NO written agreement that I as a researcher entered into without the signature of the director of research or the Vice President of Research would have any legal force whatsoever. The authority for any research institute attached to a university flows down from the authority of the University and the University’s authority flows down from the Charter of the University from the appropriate government institution. There is an additional path of responsibility that any research institution that receives government contracts. These are (for the USA), the FAR or Federal Acquisition Regulations). The system in England is pretty much similar as I have signed NDA’s (through our university research Institute with the University of Surrey and the Surrey Satellite Services Limited (SSL). That NDA was signed on their side by their director of research and it was signed on our side by our director of research and this was for satellite hardware and software.

    If ANY researcher signed an NDA with another institution without getting it approved by the appropriate management at the Institute, it is null and void.

  2. Posted Dec 28, 2011 at 2:15 PM | Permalink

    My comments were tongue in cheek! The agreements that we’re talking about are not really confidentiality agreements that you’re talking about. Lots are unwritten agreements that we make scientist to scientist. … There is never any obligation on CRU or UEA. They are generally about agreeing to work together on something.

    Not content with being a world leading climate scientist, struggling to calculate a trend in Excel and spending vast amounts of time working out how to create maximum frustration for any originator (outside the magic circle) of any request for information of any kind, the man has time to double as a stand-up comedian.

    “When is a confidentiality agreement not a confidentiality agreement?”

    “When I’m talking to a young pedant within UEA who’s inclined to take the phrase literally, not as a term of art meaning ‘B****r off, denier!'”

    BOOM BOOM. How he makes them all laugh. But as with all great comedy there’s a dark shadow:

    Issue here is blogsites have allowed these climate change deniers to find one another around the world.

    Spooky. Did he know about bender getting the contract to clean Mosher’s pool? And all the other indescribable goings on: the parties, the bridge clubs, the soccer matches, the boot sales, the massed choirs. The sharing of data and code, for goodness sake. It’s disgusting, I tell you.

  3. Posted Dec 28, 2011 at 2:34 PM | Permalink

    Ha,

    This should be interesting. When I orginally penned the request I had this in mind

    1. The CRU guidelines on confidentiality agreements were posted online and it was clear to be that they probably had not followed them. I wanted to nail
    down if there was anything beyond what I found online, like an employee handbook

    2. I wanted my request to be handled seperately from the 50 others, so I request both 5 agreements from listed countries and the policies.

    3. I wanted my request to be handled differently to see if they would invoke the 18 hour rule. I knew that they would be combining all the other requests into one “response”

    When I got Palmers response I took it as a victory since I had achieved my goal of tripping the 18 hour wire.

    Now, with more background, I have a weekend project.

    • Ftzr
      Posted Dec 28, 2011 at 3:14 PM | Permalink

      Curious, this request seems to have been made without any actual desire to see the information requested, but just to see what the reaction would me. The very definition of a vexatious request perhaps…

      • Craig Loehle
        Posted Dec 28, 2011 at 3:24 PM | Permalink

        No, I do believe the request was to see if they were lying (they were).

        • Steven Mosher
          Posted Dec 28, 2011 at 11:52 PM | Permalink

          its so vexing to tell the truth.

      • sleeper
        Posted Dec 28, 2011 at 3:28 PM | Permalink

        Re: Ftzr (Dec 28 15:14), And what would be your opinion of the reaction?

      • Charlie H
        Posted Dec 28, 2011 at 6:23 PM | Permalink

        Curious that CRU/UEA choice to lie and hide instead of being open and honest in their response.

    • geo
      Posted Dec 28, 2011 at 11:04 PM | Permalink

      Ooooh. Mosh on a Mission. Any sympathy I might have had for CRU being on the wrong side of Mosh on a Mission got et by the above.

    • Jan
      Posted Dec 29, 2011 at 7:05 PM | Permalink

      You may just get:

      Reg. 12(4)(b)
      ‘manifestly unreasonable’ on the grounds that the data is already available publicly via
      the http://foia2011.org website

      • P. Solar
        Posted Jan 3, 2012 at 10:31 AM | Permalink

        well that would probably be an implicit declaration that the archive is an intact and verified copy of all the emails. So I doubt they could use that, not would they want to.

        Be nice if they did though , it would make it more official.

  4. Willis Eschenbach
    Posted Dec 28, 2011 at 2:37 PM | Permalink

    Another outstanding piece of research, Steve, and well explained. It’s quite damning when read in its entirety. Climategate 1.0 showed the crimes, Climategate 2.0 shows more of the context of the crimes.

    Someone still has to explain it, however, and you’ve done that nicely.

    Dennis Wingo, you raise an interesting point about the validity of any confidentiality agreements which are only signed by a researcher. They raised the confidentiality issue in regard to my FOI request as well. I sidestepped the question by saying OK, then send me the stuff that isn’t covered by confidentiality agreements. I didn’t look to see who signed the few “confidentiality agreements” they produced at the end of the day and after many FOIs.

    Mosh should definitely follow up on this one. It raises important issues.

    w.

    PS—Here’s a funny corner of the confidentiality story. They provided (from memory) four of what they claimed were confidentiality agreements. One was in Spanish, which I speak. And in fact, that document specifically said that they wanted the data for public use, rather than private use. I guess they just read the title of the document and posted it.

    • Dennis Wingo
      Posted Jan 1, 2012 at 3:23 AM | Permalink

      Willis

      This is what I am saying. If a confidentiality agreement, or any other agreement for that matter is not signed by the person designated by the university (99.999% of the time a management person within CRU or whatever the organization is), then they are simply null and void and not enforceable nor BY LAW will the university recognize such signatures. Indeed researchers can be sanctioned up to an including termination, for signing such documents without the proper authority. This is a very serious issue and I can tell you that when my university research institute signed my NDA with Surrey Satellite Technology Limited (SSTL), which was a company owned by the university, it was a university official that signed the NDA.

  5. MarkB
    Posted Dec 28, 2011 at 2:38 PM | Permalink

    It is interesting (and sad) to see how Jones’ mendacity ensnares others and brings them down. If I was Daivd Palmer and this had come to public knowledge, I would be deeply ashamed of my role in it. Ditto for Hume and his ‘good laugh.’ Bureaucratic skullduggery is as old as civilization, and I’m not naive, but I do care about my name and my reputation. I’m sure that these men will soon know how their behavior has been exposed, and I just have to wonder what they think of Jones now.

  6. Willis Eschenbach
    Posted Dec 28, 2011 at 2:39 PM | Permalink

    Hey, Mosher, we cross-posted. Good to hear from you, glad you have a weekend project.

    w.

  7. TG
    Posted Dec 28, 2011 at 3:51 PM | Permalink

    I view with suspicion any person, including Mr. David Palmer, dealing with legal matters who does not differentiate between “it’s” and “its”… Seriously. ;-)

    • Jon von Briesen
      Posted Dec 28, 2011 at 7:51 PM | Permalink

      How about people using “who’s” for “whose”?

      Myself, and the REE office, totally support you and your right to protect your research – especially when it is questioned by people who’s intentions are so antagonistic and destructive.

      • crosspatch
        Posted Dec 29, 2011 at 12:11 AM | Permalink

        Interesting leap of logic there. So you are saying that you believe that the release of the data would have been damaging and that the intention of those requesting is to damage, not to find truth. The impression I got at the time was that they wanted to see the raw data so they could see how it had been “adjusted” or in some way determine how the “value added” product varied from the raw data. You seem to indicate here that you believe that seeing the raw data would somehow be “damaging” to Jones and that it was their intention to “damage” him in some way. Some people do see a potential criticism as “damage” or an “attack” even when that is not the intention at all. This wasn’t about Jones, this was about data. Jones made it all about Jones by the lengths he went to in order to avoid giving over the data. He could have very easily told a truth. Maybe he could have said “we lost that data long before it was such an important product ” or “we didn’t think we would ever need it again” or something but he went to great lengths to avoid saying anything at all beyond “no” for as long as he could and then finally giving the “the dog ate my homework” excuse. Jones is the one who is damaging Jones, not anyone else involved in asking for this data.

        In science there is an expectation that your work be reproducible and if that work is not reproducible, it is discredited. THAT might be more to the point here. Knowing that the work could not be reproduced devalues it. It is no longer a verifiable reflection of climate and simply becomes a collection of numbers of unknown origin.

        It boggles me why people would blame others for the damage Jones did to himself, but even that is typical. It is never his fault. It is always someone else’s fault. It isn’t his fault for preserving the data, it is the fault of the person requesting to see it. I find that an unusual twist of logic.

        • Craig Loehle
          Posted Dec 29, 2011 at 10:49 AM | Permalink

          crosspatch: von Briesen was quoting from the emails, not giving his opinion.

        • crosspatch
          Posted Dec 30, 2011 at 3:45 PM | Permalink

          Ah, my apologies, then. I misunderstood.

        • kim
          Posted Jan 1, 2012 at 9:58 AM | Permalink

          Nice rant, and it has now found its correct target.
          ===============

  8. WB
    Posted Dec 28, 2011 at 3:52 PM | Permalink

    Steve this is astonishing stuff and congrats on taking the time to sort through this correspondence and post it. Matthew Hume does not appear to have any legal qualifications or practice history per his LinkedIn profile. And I reckon it shows. Where oh where was the University’s General Counsel in all this? An actual lawyer would have cracked heads and sorted this nonsense out from the get go.

  9. William Larson
    Posted Dec 28, 2011 at 4:23 PM | Permalink

    What absolutely stuns me here, and in the previous post, is the astonishingly large amount of time and effort put in by all those parties to avoid providing the requested data! “…full of sound and fury and signifying nothing…” ANYTHING to avoid transparency, or to avoid admitting that they didn’t have a leg to stand on.

    • Salamano
      Posted Dec 29, 2011 at 5:21 AM | Permalink

      Seriously… If you add it all up, is it possible that there’s 18 hours (“the limit”) spent on just trying to find a way to navigate around having to respond with requested material?

  10. Adam Gallon
    Posted Dec 28, 2011 at 4:45 PM | Permalink

    They must have broken laws, someone please tell me that they have!

    • Neil Fisher
      Posted Dec 29, 2011 at 3:36 PM | Permalink

      They must have broken laws, someone please tell me that they have!

      Apparently at one point they have, but can’t be charged due to the statute to limitations being 6 months from time of commission of the offense (NOTE: not 6 months from the prosecutors discover of evidence indicating an offense may have been committed) – at least, so the ICO seems to believe.

      IMO, they carry on like little children – “oooh, it’s NOT FAIR!” when they “lose” on a technicality, but “nah nah nee nah nah, I win!” when they “win” on one. They appear to want you to stand in awe of their skills when they “trick” you, but want to complain bitterly and expect sympathy from you when someone watches the pea under the thimble and catches them out at their own game. Frankly, I find them disgusting, unethical, lying cheats (and I guess this will get snipped at some point, but I don’t care, I’m posting it anyway – although I would appreciate the snipper leaving the first paragraph intact, if you please).

  11. John Carpenter
    Posted Dec 28, 2011 at 5:36 PM | Permalink

    Phil Jones certainly is a reckless individual. It is no wonder he has problems, he has no idea what the rules are…. and then when he learns about them, he rationalizes they don’t apply and wants them to go away. What UEA is lacking is training. Employees properly trained in the policies and mechanics of NDA agreements would not have made such blunders. Unfortunately, it appears Mr. Palmer is not interested in following the rules after the fact, they chose their path early and are not veering from it. I hope Mosher follows through with a ‘clarification’.

    • Phil R
      Posted Dec 28, 2011 at 6:59 PM | Permalink

      “What UEA is lacking is training. Employees properly trained in the policies and mechanics of NDA agreements would not have made such blunders.”

      Maybe in the beginning. IMHO, what they lack now is a scapegoat. If FOI laws and UEA policies are to mean anything, someone (Jones, who didn’t know the rules, or Palmer, who did), needs to be thrown under the bus if anyone is to take this seriously. Unfortunately, Jones seems to be a huge moneymaker for UEA, so people look the other way (think Penn State).

      • Richard Brearley
        Posted Dec 29, 2011 at 8:19 AM | Permalink

        Hi Phil R,

        That was my view for quite some time – that all that was needed was some training and in fact I think I referred to that in one post some time earlier this year here on CA. I certainly don’t hold that view any longer.

        • Steve McIntyre
          Posted Dec 29, 2011 at 8:48 AM | Permalink

          I agree. The Climategate 2.0 emails clearly show that they were knowledgeable about the ins and outs of the FOI/EIR act at the time that they made the 2009 refusals. The problem wasn’t a lack of training. It is clear (from their conduct) that none of the parties considered that there would be any consequences from making untrue assertions (even recklessly) as part of an FOI/EIR refusal either under the Act, under academic misconduct codes or professionally. Nor did making untrue or misleading or evasive statements seem to present a moral dilemma to any of the parties, when such statements were made to perceived adversaries.

        • HaroldW
          Posted Dec 29, 2011 at 9:53 AM | Permalink

          “none of the parties considered that there would be any consequences from making untrue assertions (even recklessly) as part of an FOI/EIR refusal either under the Act, under academic misconduct codes or professionally.”

          And they have been proven correct in that assessment.

        • Neil Fisher
          Posted Dec 29, 2011 at 3:39 PM | Permalink

          And they have been proven correct in that assessment.

          Indeed – and that is what is most unsettling.

        • ianl8888
          Posted Dec 29, 2011 at 4:44 PM | Permalink

          Indeed – and that is what is most unsettling

          I suspect that you are younger than I am :)

        • Richard Brearley
          Posted Dec 30, 2011 at 8:15 AM | Permalink

          Indeed Ian,

          We may not be unsettled. We may have seen it all before.

          But, never forget – the wheels turn slowly, but they do turn. This issue is not over yet.

        • John Carpenter
          Posted Dec 29, 2011 at 9:52 PM | Permalink

          Steve, I have to somewhat disagree. If the proper training had been done early on… well before any requests were made… If the rules were well understood by all UEA parties prior to all the FOI/EIR requests, I’m not sure all the players would have taken the chosen path. Since they did not know the rules… (apparently none of them did, including the FOI officer Mr. Palmer, from the series of emails you present)… they felt they could make there own rules (Jones). It wasn’t until someone like Mosher asked what the rules were that they bothered to find out… to me, it never occurred to them there might be formal procedures and that the procedures were not as they thought they would be (this is where Jones has been very reckless). Your analysis very clearly shows they found out all this information after the fact. By the time they found out what the rules were, they had long already laid their path down…..established by what ‘the team’ dictated. Clearly they disregarded the new found information in favor of their original strategy as they had already gone ‘a bridge too far’.

        • Steve McIntyre
          Posted Dec 29, 2011 at 10:14 PM | Permalink

          the commentary on this IMO over-focuses on FOI which was used as a sort of last resort. Journals and funding agencies ought to have policies and ought to enforce them.

        • John Carpenter
          Posted Dec 29, 2011 at 10:50 PM | Permalink

          OK, I see your point.

        • Harold
          Posted Dec 30, 2011 at 7:55 PM | Permalink

          I checked a recent Nature article http://www.nature.com/nature/journal/v476/n7361/full/nature10311.html. Code and other supplemental info was there, but the code is labeled “beta”. At least it’s disclosed, not hidden.

        • ianl8888
          Posted Dec 29, 2011 at 11:00 PM | Permalink

          This from Palmer:

          4. A copy of instructions to staff regarding compliance with FOI requests.

          We have web guidance that can be referred to, and a brochure that I distribute that could go here…. and a statement regarding the training on offer

          “I didn’t know the gun was loaded” won’t wash

        • Jan
          Posted Dec 30, 2011 at 6:47 PM | Permalink

          I’m not sure they weren’t aware of the implications of FOI before the requests began. This email from 2005 seems to indicate an understanding that FOI was something to be worried about and that the requirement to respond could well be beyond their control.

          http://di2.nu/foia/1107454306.txt

          “The two MMs have been after the CRU station data for years. If they ever hear
          there is a Freedom of Information Act now in the UK, I think I’ll delete the file rather than send to anyone. Does your similar act in the US force you to respond to enquiries within 20 days? – our does ! The UK works on precedents, so the first request will test it.
          We also have a data protection act, which I will hide behind. Tom Wigley has sent me a worried email when he heard about it – thought people could ask him for his model code. He has retired officially from UEA so he can hide behind that. IPR should be relevant here, but I can see me getting into an argument with someone at UEA who’ll say we must adhere to it !”

          I’ve been reading through these emails over the last number of days, and I’m absolutely dumbstruck at the machinations that went on in response to FOI’s. It’s a database of temperatures for heaven’s sake, not a collection of military, government or state secrets. I mean seriously, if they felt that what they held was so proprietary in nature and contributors so worthy of confidentiality, why did they not ensure from the outset that their IPR were protected and that all the T’s were crossed and I’s dotted in terms of agreements to third-party access? Frankly, if I were the holder of the data, the first thing I’d do (if possible) upon learning of FOI regulations would be to put in order all the documentation I needed to protect my product and my database from FOI before whining to others about the need to do so. I looked at the confidentiality letters provided in this regard, and they are, to say the least, pathetic – at least in terms of their claims.

          My reading of it is that, they didn’t ever concern themselves over any of this until people started asking challenging questions.

  12. WB
    Posted Dec 28, 2011 at 7:27 PM | Permalink

    Have trawled through the UAE website over a happy cup of Sydney coffee this a.m and wow, they do NOT have an Office of General Counsel. They do not appear to have any kind of senior legal officer with responsibility for running the legals of the University.

    Steve, you had a post in Nov 2010 http://climateaudit.org/2010/11/29/was-there-an-actual-legal-opinion/

    To paraphrase the CAGW alarmists, it’s worse than we thought. There wasn’t and isn’t an actual lawyer! And the Muir Russell investigation didn’t even ask the question about who was giving legal advice. I am an in-house lawyer, that’s what I’ve done for a living for the past 12+ years. And maybe I’ve missed the Legal Office at UAE and stand to be corrected, but I don’t think I’ve missed it. I think UAE elects to just wing it on legals re data management, records management, disclosure, publication, confidentiality, IPR and FOI/EIR. This is just wow to me. A general counsel would have cracked heads a long time ago.

    • Don McIlvin
      Posted Dec 28, 2011 at 8:55 PM | Permalink

      Re: WB (Dec 28 19:27),

      A general counsel would have cracked heads a long time ago.

      The way the operate there, your observation may explain why they don’t have a GC.

    • Posted Dec 28, 2011 at 9:49 PM | Permalink

      I think you mean UEA…easy to make error.

    • Richard Brearley
      Posted Dec 29, 2011 at 8:25 AM | Permalink

      Yes it is a surprise.

      Although UEA has its own law school offering underegraduate/masters/post graduate study. Bound to be a few lawyers on the staff there.

    • Jon at WA
      Posted Dec 30, 2011 at 7:05 PM | Permalink

      WB

      I understand your desire to push the lawyer boat, and in this post declare your interest. In my opinion, in a time when we are burying the last of the post war family solicitors and our small businesses are struggling under the burden of compliance brought about by ambulance chasers and their compatriots in legislatures, the argument is not a case of law or how many lawyers.
      The FOI requests have the effect of holding a mirror up and forcing the UAE and CRU to look at who they really are and the emails presented here by Steve show how they have to acknowledge their reflections, at least to each other.
      In my opinion Phil Jones has declared from the opening salvo to have little interest in the science of climate or he would have enjoyed the interest and debate of the climateaudit community.
      My experience of FOI is that it is the tool of bureaucracy to modify and control information historically available in the public domain and thus absorb and exhaust the energy of the applicant. The courts are the hole in which they bury what is left of those silly enough to believe there is justice.

      Keep holding up the mirror, these guys will move on or be replaced.

  13. AnonyMoose
    Posted Dec 28, 2011 at 9:21 PM | Permalink

    Others have questioned whether there are penalties for individuals for violating FOI.

    The preceding “authority” summary made me wonder — are there institutional penalties for an organization which violates FOI? Don’t government agreements require that things such as FOI be followed? Might this behavior cascade to block EA’s government grants, contracts, cafeteria subsidy, or funding?

  14. Martin Brumby
    Posted Dec 28, 2011 at 10:31 PM | Permalink

    Speaking as one of “These people [who] don’t have logic as their strong suit” I have to make the point that it would be hard to imagine a more obvious example of a group of people conspiring together to break the FOIA law than Steve has sketched out in these two posts.

    So, can we expect the Information Commissioner’s Office to take action at last?

    Don’t hold your breath.

  15. JCM
    Posted Dec 28, 2011 at 10:41 PM | Permalink

    Would you advise your child or any other child to study at UEA, a place where deliberately lying and flouting the law is deemed acceptable. The two articles lay bare an organisation that no parent can view as conducive to a good education.
    Steve has done a great service in describing a sequence of events that shames those who attacked him on this blog, other blogs and in international media.

  16. geo
    Posted Dec 28, 2011 at 11:00 PM | Permalink

    After reading the last two posts, I’m thinking CRU is lucky indeed they aren’t subject to RICO. It is nothing short of despicable the lengths they went to in order to obfuscate, bend, and “line dance” (the problem with extended line dancing is, you’ll rarely do it successfully) along the law. And clearly understood themselves to be doing so.

    Really, at this rate CA is going to have to put an age limit policy on reading here, so as not to overly corrupt idealistic youngsters before their natural life-cycle of arriving at cynicism.

  17. EdeF
    Posted Dec 28, 2011 at 11:27 PM | Permalink

    “I am requesting this information as part of my academic research.
    Thank you for your attention,
    Steven M. Mosher”

    Diet Coke out the blow hole at Mach 2.0, keyboard ruined once again.

  18. RDCII
    Posted Dec 29, 2011 at 1:17 AM | Permalink

    What I don’t understand…truly…is if the FOIA superiors were able to say that there was a prima facie case for dodging FOIA, but that they couldn’t prosecute because of prosecution limits…still…why has Dave Palmer still got his job? Ok, they can’t prosecute, but surely they could institutionally fire the guy for not doing his job correctly?

    • ianl8888
      Posted Dec 29, 2011 at 2:31 AM | Permalink

      > … fire the guy for not doing his job correctly? …<

      Depends on the viewpoint of "correctly" – how defined ? Remember Palmer's comment on bringing Jones to the FOI darkside ? If an important segment of Palmer's job is to protect UEA's perceived IP and by extension funding, from FOI (and don't underestimate the strength of that academic motive), then he tried very hard indeed

      Tony Blair was here in Aus about 6 months or so ago for some reason or another. Not much of a media splash, but I did see one TV interview segment, wherein he opined that his worst mistake while in office was the FOI Act – and he did NOT mean that the Act had been unsuccessful in extracting requested information and should be expanded

  19. Rick Bradford
    Posted Dec 29, 2011 at 6:35 AM | Permalink

    In fact, UEA probably consider that Palmer ‘played a blinder’.

  20. Stacey
    Posted Dec 29, 2011 at 8:12 AM | Permalink

    There’ a hole in my bucket Delilah Delilah:
    So let’s get this straight:
    1 They have the data and it’s confidential.
    2 They don’t have the confidentiality agreements
    3 Honest Phil says ‘don’t tell him we don’t have the original data’
    4 They ain’t got the data and agreements.
    5 Sorry Mr McIntyre its academic anyway you can’t have the data because you ain’t an Academic.
    I give up shall we just sing there’s a hole in my bucket:-)

    • William Larson
      Posted Dec 29, 2011 at 11:31 PM | Permalink

      And all these many eons I thought it was “dear Lilah”. Hmm, maybe it IS “dear Lilah”, because she responds “dear Henry”. Well, it is on the resolution of such important issues that the fate of civilization depends. (EDITOR’S NOTE: How does such OT trash as this reply ever make it on to this site?)

  21. Posted Dec 29, 2011 at 8:36 AM | Permalink

    After reading more than half of Montford’s excellent Hockey Stick Illusion I have a lot more appreciation for the struggles and frustrations everyone fighting this battle had to go through.

    Sadly, as a Federal Contractor the bureaucratic inertia and politics you experienced are all too common. My hat of to all of you for your diligence and professionalism.

    With that said, people with a claim are usually excited to share it. Those with a strong foundation to their claim would never ever consider the lengths the Hockey Team went to hide their work.

    No, there is truly something rotten in here. Personally I think Palmer is key to a lot of Climategate (up coming post this week).

    BTW, I ran across another interesting set of intriguing data files in the Climategate 1 documents. Looks like 2007 generated regional anomalies from CRUTEM1. Since these were to be used to calibrate proxies (most likely tree rings) the results are without a lot of CRU adjustments added on. At lesst that is what they look like. If interested the post is here, data will be coming very soon:

    http://strata-sphere.com/blog/index.php/archives/17801

    Again, my hat off to all those who fought the lonely good fight for so long. We all owe you a debt of gratitude.

  22. J Bowers
    Posted Dec 29, 2011 at 8:43 AM | Permalink

    Is this the FOI request that was deliberately tailored to be rejected?

    • Steve McIntyre
      Posted Dec 29, 2011 at 10:51 AM | Permalink

      I don’t see anything in this request that would take more than 18 ho9urs.

      • JEM
        Posted Dec 29, 2011 at 12:00 PM | Permalink

        For an honest institution making an effort to comply with the law this would be little more work than sending out a university brochure.

        • Posted Jan 1, 2012 at 5:10 PM | Permalink

          These folks know they have the power with them. Or as Lord Acton, grandfather of Professor Edward Acton, Vice-Chancellor of the University of East Anglia, put it: “Power tends to corrupt, and absolute power corrupts absolutely.”

      • J Bowers
        Posted Dec 29, 2011 at 8:10 PM | Permalink

        “I don’t see anything in this request that would take more than 18 ho9urs.”

        How would you know how long it takes to deal with FOI requests?

        • Dennis Wingo
          Posted Jan 1, 2012 at 3:44 PM | Permalink

          Steve

          There is another path to get all of the information that one desires. I don’t know what the law is in the UK, but in the US there is a clause in every government development contract covering Intellectual property. It is called a “government purpose license”. If you good in the Federal Acquisition Regulations (FAR), the definition of the Government Purpose License, you will find that the government has the right to take any and all IP developed with federal funding and do with what they will, up to an including giving it to your competition.

          Therefore a senator like Inhofe could easily request anything under that GPL and it would be required to be produced AND he could do whatever he wanted with it, including making it public.

        • jeez
          Posted Jan 1, 2012 at 4:19 PM | Permalink

          Dennis, I believe the “government purpose license” you mention derives from the “march-in” clause authorized by the Bayh-Dole Act.

          http://en.wikipedia.org/wiki/Bayh%E2%80%93Dole_Act

          The Act, for all practical purposes gave the IP rights away to funding recipients in Federally funded contracts.

          “march-in” rights are restricted and rarely used.

          Personally, I believe much of the corruption of science is a consequence of the Bayh-Dole Act.

    • geronimo
      Posted Dec 29, 2011 at 1:24 PM | Permalink

      J Bowers “I further maintain that you have no evidence whatsoever for there being a transgression.”

      How do you feel about it now?

      Welcome to the site by the way, if you’re the JBowers that posts at the Guardian you’ll learn that arguments can be heated but respectful.

      • J Bowers
        Posted Dec 29, 2011 at 8:14 PM | Permalink

        “How do you feel about it now?”

        The request was vexatious.

        • theduke
          Posted Dec 29, 2011 at 9:13 PM | Permalink

          Vexatious??

          Only to Jones et al.

          It’s not vexatious within the parameters of the scientific method. It’s required. When someone asks you for data in order to replicate results that are being used widely to formulate environmental and economic policy around the world, you should gladly comply with the request.

          It was the response to the request that was vexatious.

        • J Bowers
          Posted Dec 29, 2011 at 9:41 PM | Permalink

          “It’s not vexatious within the parameters of the scientific method. It’s required.”

          Is it? Rote repetition is not scientific verification, and verification does not even rely on the same data being used. Can you even define what a climate audit is, as in how it would be defined in a dictionary?

        • William Larson
          Posted Dec 29, 2011 at 10:27 PM | Permalink

          Well, I may be going OT with this, so let the powers-that-be snip away: My gosh, sometimes “rote repetition” IS DEFINITELY “scientific verification”, and there are MANY examples in the history of science that that uphold this truth. (Remember “polywater”?) Plus, very, very often we need the actual data to ascertain whether that data is “any good”. Again, MANY such examples of this. (For one sterling example, S. McIntyre’s strong interest in temperature proxies: Just how good are these proxies [or "proxies"] anyway? Etc.) OK, before I might lapse into rant mode I am shutting up, whether this is snipped or not.

        • J Bowers
          Posted Dec 30, 2011 at 5:41 AM | Permalink

          Steve hasn’t actually done a temperature reconstruction to my knowledge. How can you possibly say that?

        • William Larson
          Posted Dec 30, 2011 at 9:33 PM | Permalink

          J Bowers: You note that I said “strong interest”. SM likes to VET (AUDIT) “proxy” data to see if, to steal in a way from Gertrude Stein, “there is a THERE there.” And as you must know, if you follow Karl Popper, SOMEBODY has to do this before it can even qualify as science–otherwise, it’s just “oracle-speak”. (Reminds me of that comment of Gavin’s once over at RC: “Doesn’t anybody trust us?” What a bizarre remark! Any scientist half-way worth his salt knows that the purpose of science is to take the human/personal element out of it: We trust the data, not the person.)

        • theduke
          Posted Dec 30, 2011 at 3:07 PM | Permalink

          I’m not going to quibble with you over definitions. If you want “climate audit” defined, ask Michael Mann and Keith Briffa. I can assure you they know what it is.

        • Steve McIntyre
          Posted Dec 29, 2011 at 10:10 PM | Permalink

          “vexatious” is a legal term that is used in motions for summary judgement where there is voluminous case law. This is what is relevant.

        • J Bowers
          Posted Dec 30, 2011 at 5:39 AM | Permalink

          ICO: Vexatious requests – a short guide. Some would agree with my opinion, Steve.

        • Salamano
          Posted Dec 30, 2011 at 7:19 AM | Permalink

          If that was the case, then:

          “Can the request fairly be seen as obsessive? If so, this will be a strong indication that a request is vexatious. Relevant factors could include a very high volume and frequency of correspondence, requests for information the requester has already seen, or a clear intention to use the request to reopen issues that have already been considered (particularly if there has been an independent investigation). The wider context and history of a request will be important.”

          Can be resorted to in order to refuse ANY FOI request for ANY information in ANY way related to climate science and the exploration therein. How could someone like a Phil Jones (given the above history) not be licking his chops at such an “out”?

        • Richard Brearley
          Posted Dec 30, 2011 at 8:38 AM | Permalink

          I have no doubts that requests made to UEA were generally far short of the test for vexatious requests. Even were that the case any request made now in the same vein as those before has pretty much no chance of being found to be vexatious.

          The background at UEA itself assures this. In general the work it does results in the setting of a very high standard for dismissing requests on this ground (where requests are for data, methodology or communications that are relevant). What we have now as our backdrop are the inquiries, the assurance given by UEA to the ICO about how it would deal with FOI/EIR requests, the overwhelming public interest in UEA’s work that cannot in any way be seriously denied by anyone, and now all that we know about how they approached requests for information. Its previous dealings with FOI/EIR make it, in my view, perfectly legitimate now to FOI/EIR UEA just to see if it carries on trying to stonewall requests. (As a lawyer my own interest has always been with FOI/EIR compliance in any event – a rather dry interest and perhaps I should get out more). It was only the strange refusals and obfuscation that got me interested in the first place – I have no particular expertise with regard to the science or the forensic analysis of the “data”, although I do generally understand what I read and find the whole thing fascinating and this and other blogs have given me many hours of intellectual satisfaction).

          UEA’s obsessive and entirely inappropriate focus on the requester rather than its legal obligations makes UEA a clear serial denier whose antics must be brought before the proper authorities. UEA has made it far, far more difficult for it to win at ICO appeals. My own appeal is shortly to be submitted. With the material available to me now UEA is in serious difficulty.

        • Posted Dec 30, 2011 at 10:55 AM | Permalink

          Richard Brearley:

          With the material available to me now UEA is in serious difficulty.

          We wish you and anyone else with actions pending the very best in making the difficult downright impossible for UEA in future. “They must be brought to book” has never seemed more apposite, not merely for the satisfaction of a handful of requesters but for the good of science, the academy and most of all the general public – and not just in the UK.

        • J Bowers
          Posted Dec 30, 2011 at 12:26 PM | Permalink

          “Can be resorted to in order to refuse ANY FOI request for ANY information in ANY way related to climate science and the exploration therein. How could someone like a Phil Jones (given the above history) not be licking his chops at such an “out”?”

          So do some actual science. Did anyone ever say it was supposed to be easy? But it’s not as if Jones’s and CRU’s work hasn’t been verified independently on a number of occasions. Unless, of course, one would be looking to trawl through emails looking for juicy quotes, in which case you’re stepping into the social sciences, at best, and most certainly out of the physical sciences and the scientific method.

        • Charlie H
          Posted Dec 30, 2011 at 2:48 PM | Permalink

          So If I draw a line on a graph and it looks mostly similar to “CRU’s work” does that mean that I verified CRU’s work?

          If I had multiple data sets from multiple sources and then chose what data I used based on “what looks right” and then adjusted it and centered it and came up with a graph that looked like “CRU’s Work” did I verify their work?

        • Posted Dec 30, 2011 at 3:27 PM | Permalink

          Indeed you did. Congratulations. What’s more it’s yet another independent verification, proving (in the case of the hockey stick, for example) that it’s not necessary to consider the careful arguments of McIntyre or any other critic. Misuse of ‘independent’ is rampant across climate science, which seems to have no idea of what truly independent verification looks like – for whenever it comes across something even close it screams “fossil fuel shill” before you can say John Holdren. Laughable – if the governments of the world hadn’t entrusted so much of our future to these juveniles.

        • MikeN
          Posted Dec 31, 2011 at 12:08 AM | Permalink

          When looking through papers describing climate models, I am surprised by how much weight is given to whether it is in agreement with other models.

        • Harold
          Posted Dec 30, 2011 at 8:03 PM | Permalink

          “But it’s not as if Jones’s and CRU’s work hasn’t been verified independently on a number of occasions.”

          It’s exactly as if their work hasn’t been verified independently.

        • geronimo
          Posted Jan 2, 2012 at 12:22 AM | Permalink

          I’m not sure I understand what you’re saying here JB. This thread is about the refusal to provide the raw data on which the CRU temperature reconstructions were bassed, addition their refusal to provide their policies on storing and providing the data, and cavalier approach to the law, as demonstrated clearly in the emails between the FOI officer and Jones et al. After a long battle, and on the eve of defeat Jones told the world that the raw data did not exist, surprisingly what purports to be the most prestigious climate science department in the world, failed to archive the data from which they derived the data set that is driving world policies on climate change. Given the appalling low standards they’ve shown in other aspects of their work I, for one, am inclined to believe that they have indeed misplaced the data and can’t find it. Nor do I believe there’s a smoking gun their, although Jones’ actions do hint at a lack of integrity that could make a reasonable person suspicious.

          “Verifying” his work doesn’t come into it and was the stock answer provided by realclimate.org to the faithful when the veracity of Mann’s hockeystick was challenged and numerous members of the Team, including infamously Wahl and Amman rushed to defend the hockeystick by themselves publishing papers that purported to provide scientific cover for Mann. They have all subsequently been shown to have been flawed, or agreed with the MM 2003.

          Still that’s for another thread I suppose, I agree with Tom Fuller, to not see malfeasance in these email exchanges must be a wilful exercise in refusing to see the evidence.

        • DGH
          Posted Jan 2, 2012 at 9:47 AM | Permalink

          Actually this thread is about Mosher’s FOI request for instructions, policies and procedures related to confidentiality agreements, verbal agreements, maintenance of agreements and compliance with FOI.

          Matthew Hume demonstrates that it would not have taken 18 hours to comply, J Bowers rhetoric notwithstanding. In a matter of minutes Hume cited policy and a portion of employment contracts for Palmer’s consideration. None of the emails suggests that they considered Mosher’s request vexatious. There appeared to be an initial effort to collect the requested materials and apparently they were already assembling related materials for internal and external use.

          So as best we can tell the reason for non-compliance with FOI in this instance was “If Dave goes down the route you suggest, I think they will come back on UEA for not supervising me properly!”

          J Bowers has uncovered some interesting FOI compliance guidelines from ICO. Perhaps there is an exclusion in this policy or another one for embarrassing situations such as improper supervision. But I couldn’t find it.

        • Tom Fuller
          Posted Dec 29, 2011 at 10:13 PM | Permalink

          At some point it just has to be classified as a will not to know. And Bowers is intelligent, make no mistake. There has to be a conscious effort to look past what has been published without seeing it.

        • J Bowers
          Posted Dec 30, 2011 at 12:27 PM | Permalink

          Blimey, Tom, I just fell off my chair, as backhanded as that may have been.

        • Tom Fuller
          Posted Dec 30, 2011 at 3:25 PM | Permalink

          Do you really think that just because we disagree on climate change and the politics surrounding it that I would feel any need to demonize you? I reserve demonization for sports, where it’s a necessary ingredient for full enjoyment of the activity…

          Happy new year.

        • J Bowers
          Posted Jan 3, 2012 at 4:48 AM | Permalink

          And to you, Tom.

  23. mparsons
    Posted Dec 29, 2011 at 2:00 PM | Permalink

    What these fellows have found is that complying with government regulations is often difficult and time consuming. That is why they ask to be exempted from them so they can be more productive. But their work is aimed directly at justifying the need for more and more restrictive reporting and compliance burdens on the rest of the world. Any chance they see the irony?

  24. Nik
    Posted Dec 29, 2011 at 3:49 PM | Permalink

    “What absolutely stuns me here, and in the previous post, is the astonishingly large amount of time and effort put in by all those parties to avoid providing the requested data!”

    The poster above echoes the the confusion of those of us who cannot understand the reason behind this refusal to release information.

    And it cannot be explained by attributing it to an unjustified feeling of ownership over data or even sheer bloodymindedness. Something else is going on. The UEA people pparently felt they had immunity. The subsequent inquiries into the affair and the conclusions prove that those involved are in fact immune. Maybe someday we will find out how they got this idea.

  25. Foxgoose
    Posted Dec 29, 2011 at 4:26 PM | Permalink

    Someone a while back asked how come a UK university doesn’t have a US style “General Counsel” legal adviser – to keep them on the right side of the law.

    Speaking as a Brit, I have to say, sadly, that I fear the reason that establishment institutions here don’t feel the need of such a post is that they know that in the final analysis they will be protected from legal consequences.

    It’s for the same reason that you hardly ever see financial criminals here doing the “perp walk” down Threadneedle St in the way you might see their Wall St equivalents.

    …. and it’s for the same the reason that, how ever much devastating forensic work is done by Steve and others, institutions like UEA, CRU, The Met Office etc will simply look the other way and wait for the grass to grow over their transgressions.

    We may be the world’s oldest democracy, but we have a lot to learn from our ex-colony on the Rule of Law.

  26. Greg Cavanagh
    Posted Dec 29, 2011 at 4:50 PM | Permalink

    It would have been so easy to answer the question. Yet they deliberately set out to find reason not to supply the University policies. Something to which they didn’t have any reason for refusal what so ever, yet they couldn’t bring themselves to supply it. If this happened in a sitcom, movie or book, I wouldn’t think it was realistic. Yet here it is.

    The University governing body, the government administration authorities, the people who conducted the enquiries, the people who initiated the enquiries; all should be hauled over the coals. Incompetents the lot of them. Human nature laid bare.

  27. mpaul
    Posted Dec 29, 2011 at 5:54 PM | Permalink

    It is ironic. Phil is arguing that complying with FOIA is consuming too much of his time. As this incident clearly shows, his time was being consumed by evading FOIA — had he simply complied with the law it would have taken very little time.

    As the debate goes on the the UK about exempting climate science from FOIA this example should be studied. They should not be allowed to proffer cases of evading FOIA as exemplars for how FOIA is taking too much time.

  28. johanna
    Posted Dec 30, 2011 at 3:16 AM | Permalink

    Following the history of Messrs McIntyre, Mosher, Eschenbach et al’s FOI requests is like reading one of the best spy thrillers ever written. If John Le Carre was starting out now, imagine what he could have done with it!

    What is still unclear is the motivation or mindset that generated this extraordinary tissue of lies and evasions. It certainly keeps this reader turning the pages. Are they evil, stupid or just afraid that their mediocrity will be exposed – or perhaps a mixture of all three?

    Like many other commenters, I simply can’t understand why they wouldn’t just do the straightforward thing that most busy researchers would do – send (or get a minion to send) the data, or contact the requester directly to explain why the request might not be able to be fulfilled in full or in part.

    Judging from the emails in CG1 and 2, the time spent scheming and plotting seems to indicate that their research workload was less than overwhelming. The researchers I have met who are seriously at the cutting edge of their field have neither the time nor the inclination for this sort of nonsense.

    I eagerly await the next exciting installment. This has more cliffhangers than ‘Dallas’!

  29. 40 Shades of Green
    Posted Dec 30, 2011 at 8:43 AM | Permalink

    One of the most interesting things from this article for me, is the role of the person at UEA whose job it is to hear FOIA appeal – namely Jonathan Colam-French.

    He was copied on a number of the mails above and there seems clear evidence that this man conspired with the main perpetrators to avoid complying with FOIA requests.

    Surely the guy at UEA who is supposed to hear appeals as part of the FOIA process should be telling the miscreants to comply with the law as opposed to conspiring with them to evade said requests.

    Does anyone have any experience of the role of the FOIA Appeal person in other UK institutions and whether or not this is appropriate.

    Here is one email he was copied on

    ————————
    Subject: FW: FOI/EIR request [FOI_09-69]
    Folks,
    In response to one of Phil’s earlier emails regarding any policies regarding entering into confidentiality agreements etc, I sent a query to REE to determine what relevant information they might have… and received the below response to which I have responded as you can see…
    This does present something of a ‘issue’ in terms of drafting a response and dealing with any potential follow up request/query regarding our practices in this regard. I wonder if whether said policy was in force at the time the agreements were entered into would be a way around this… the request is for current policies clearly…. I will enquire further with Matt Hume….
    Cheers, Dave
    ————————–

    40 Shades

  30. Solomon Green
    Posted Dec 30, 2011 at 8:52 AM | Permalink

    Martin Brumby
    “Speaking as one of “These people [who] don’t have logic as their strong suit” I have to make the point that it would be hard to imagine a more obvious example of a group of people conspiring together to break the FOIA law than Steve has sketched out in these two posts.

    So, can we expect the Information Commissioner’s Office to take action at last?

    Don’t hold your breath.”

    Civil servants,regulators and other public servants in the UK are programmed to evade the provisions of the Freedom of Information Act.

    In the case of Berend v Information Commissoner (and London Borough of Richmond upon Thames)

    http://www.informationtribunal.gov.uk/DBFiles/Decision/i141/Berend.pdf

    four senior municipal employees, including the Head and Deputy Head of Legal Services and another lawyer were criticised by name for lying. [sections 106 to 118 inclusive] but none of tehse four were disciplined.

    Unfortunately when preparing the bill which became the FOI Act the civil servants ensured that a prosecution for criminal activity would be almost impossible to progress as they apparently included a maximum time limit of only six months for bringing a prosecution .

    The UEA administrators and the CRU scientists together with the decorators who served on the Muir Russell and two other coommittees can relax in the sure knowledge that they have done what they were expected to do. While they may have lost whatever reputations for integrity that they might have still had they will never be prosecuted.

  31. bill
    Posted Dec 30, 2011 at 9:41 AM | Permalink

    Jones digs his heels in over FOI requests because he knows where it might lead – that a lot of the time he’s ‘lost’ the data, had so little data his conclusions were worthless, had data that others might cruelly call ‘made-up: look at Keenans hammering of Jones & Wang, which purportedly denied the significance of UHI, based on data which could be called non-existent. Jones knows his triumphant policy-shaping conclusions will fall apart if his data and methodology are examined. So, say no to (all & any) FOI requests. As he puts it himself, (to paraphrase) “why should I give you (25 years worth of data) just so you can find something wrong with it?” Well Phil….

  32. Matt Skaggs
    Posted Dec 30, 2011 at 11:14 AM | Permalink

    I have yet to see a single comment in any CG e-mail that hints at “dirty laundry” in the CRU temp data sets. As for UHI, I found this:

    Phil Jones to Geoff Jenkins, 2007:
    “We don’t make adjustments [we] just remove the stations affected.”

    This lack of back-and-forth on data quality contrasts strongly with, for example, the Hockey Stick, about which there are many critical comments between Team members (mostly back and forth between Cook and Briffa), some even bordering on ridicule. Has anyone found any disparaging comments between Team members about the CRU temp data sets? This lack of evidence, while not constituting evidence of lack, suggests that the Cash Cow Hypothesis, in which the amount of work done on the data sets is tiny compared with the funding, is more likely than the Dirty Laundry Hypothesis.
    I did find this odd comment about how Jim Hansen adjusts his data set:

    Peter Thorne to Phil Jones, June 2009:
    “Jim Hansen adjusts his urban stations (based on night-lights) to nearby rural stations, but if I recall correctly (I’ll send that paper shortly), he warms the trend in 42 percent of the urban stations indicating that nearly half have an urban cold bias.”

  33. Craig Loehle
    Posted Dec 30, 2011 at 3:42 PM | Permalink

    There is a curious belief among some troll posters that no one ever replicates or especially audits scientific work. When some recent major math contests were reputedly solved, many people went over the proofs in detail, and found errors which the author then fixed–he did not call these auditors enemies or deniers. When odd results are found in atomic collider studies, detailed examination of every observation and of the computer code are undertaken. In a major dispute about the age of some south american archaeological digs, a workshop was held at the site so everyone could examine the site and artifacts in person and debate the age and meaning of what had been found. Cold fusion foundered when no one could replicate the work–and the process would have been speeded up if Ponds & Fleishmann (sp?) would have released their data.

    • pete m
      Posted Dec 30, 2011 at 4:10 PM | Permalink

      “sped up” – hehe (ps ignore my typos!)

      Craig – the reason climate science is different is because these people are trying to save the world from itself. There is a good reason it is likened to religous belief.

      Prof Flannery in Aust even spoke about Gaia having a brain and gaining awareness – seriously!! Not only are they trying to create a scarey monster, they now claim it is alive!!

      re the post, I wonder if the university overarching policy came in after some of these agreements were signed, back in the early 80’s? I’m sure Mr Palmer has thought of a get out option for his statement, in that he is referring to 1 time period. They do things in many layers and obfuscation is an art.

      • Geoff Sherrington
        Posted Dec 31, 2011 at 5:30 AM | Permalink

        Pete, I’m interested in the formation of “backer” groups in the early 80’s.

        If you or others have kept info on who was who in the leadup to Rio 1992, then I’d be interested in digging more into this old material. The CG emails seem to start about 1997.

        I’m trying for events prior to emails such as 5323.txt of 1997. That email gives one formative group, the pre-genesis of CRU, whose prior group history I would find interesting. Simplifying, there are many university people involved, plus oil (Shell, BP maily) and some industry (DuPont). I’m looking more to ways that money can be channeled from the claimed CAGW effects to institutions like banks and insurers (carbon credit reades ets), real estate traders (sea level) and people.

        • Posted Dec 31, 2011 at 8:49 AM | Permalink

          Most of those roads (including Rio) pass through George H. W. Bush and his handlers. But that was then; now, there are new players. Hope you have a lot of time on your hands.

          RTF

        • theduke
          Posted Dec 31, 2011 at 11:08 AM | Permalink

          Geoff: here’s a short retrospective written by one of the main actors in those days:

          http://blogs.edf.org/climate411/2007/11/01/ipcc_beginnings/

          He seems proud that they tricked the Schultz and the Reagan administration into go along with what was clearly not scientifically proven at the time.

        • ChE
          Posted Dec 31, 2011 at 12:33 PM | Permalink

          That’s a stunning admission:

          I suspect that the Reagan Administration believed that, in contrast to our group, most scientists were not activists, and would take years to reach any conclusion on the magnitude of the threat. Even if they did, they probably would fail to express it in plain English. The US government must have been quite surprised when IPCC issued its first assessment at the end of 1990, stating clearly that human activity was likely to produce an unprecedented warming.

          I don’t know if Oppenheimer realizes it, but he admitted right there that the IPCC is stocked with activist/scientists.

        • theduke
          Posted Dec 31, 2011 at 12:04 PM | Permalink

          Geoff: I’m not sure this satisfies the specifics of your request, but here’s a more comprehensive history of the theory of AGW:

          http://www.spiked-online.com/index.php?/site/article/3540/

        • Geoff Sherrington
          Posted Dec 31, 2011 at 10:06 PM | Permalink

          Thank you for those leads. There is a reasonable amount still around. I’m doing a social connectivity type of analysis in an informal way. Friends tell me that if I download the spy-versus-spy type programmes I’ll get a knock on the door at 2 am. (Just like this morning, with 2 granddaughters lacking transport from the New Year’s Eve revelry). I’ve met some of the figures from those days or was working in the same fields (perhaps on opposite sides) & reading material thewn and it’s interesting how the preliminary results are panning out. My hypothesis is that people of this magnitude don’t enter these grey areas pro bono; & if there was a fee, how much was paid?

  34. Tom Gray
    Posted Dec 31, 2011 at 9:15 AM | Permalink

    With all of the controversies about stolen/leaked Emails, Durban decision to paper over the non-decision, science by press release etc, etc., does this issue not seem to now be like a sitcom that has gone one just too long. Is anything new being said or is it the same old stories with the same old characters over and over again. Doesn’t it bring shark jumping to mind?

  35. Posted Dec 31, 2011 at 6:40 PM | Permalink

    All,

    Time for some light relief from all this depressing utter lack of integrity on UEA’s part stuff.

    Steve will hopefully appreciate this slight diversion but given the mention of a certain person’s name on this thread it’s time for a quick quiz question.

    Other than climate change what other subject connects John Beddington, David Palmer and our host Steve McIntyre? Steve you are not allowed to participate in this quiz at least not just yet anyway. To take home all the quedos you don’t just need to name the subject but also mention what specific event (other than climategate) connects all three of them. A quick clue – you need to do some googling on CA and these three names.

    KevinUK

  36. Posted Jan 1, 2012 at 12:15 AM | Permalink

    Steve, I just popped by to wish you and yours a Happy New Year. I don’t participate in the discussions here very often. But, yours was the first for me. I nearly cried from relief when I discovered there were more than just me who saw the importance of the climate issues and the good likelihood there were many errors in the prevailing assumptions about our climate. And, I’m not nearly the only one. The societal contributions which have sprung from this blog can not be overstated.

    Forever grateful,

    James Sexton

  37. WB
    Posted Jan 1, 2012 at 7:32 PM | Permalink

    Steve you’ve probably already seen this but here’s a Phil Jones exchange where he’s given express permission to release data to you but he elects not to do anything.

    http://www.ecowho.com/foia.php?file=1076336623.txt

    regards and very much look forward to 2012, another year of keeping the scientists honest.

  38. Geoff Sherrington
    Posted Jan 2, 2012 at 5:33 AM | Permalink

    Steven Mosh, If you ever wish to bounce ideas off a wider coterie, you have my email. I’ve lived and read through a lot of the issues that Steve Mc has essayed above. OTOH, you seem pretty capable yourself, so I’m not talking down to you.

  39. barn E. rubble
    Posted Jan 3, 2012 at 7:25 AM | Permalink

    RE: “Mr. Palmer explicitly refuted the accusation (implicit in the leaked e-mails) that a policy had been developed by those managing the administration of the FOI process to always refuse FoI/EIR requests from the ‘Climate Audit’ community.”

    Mr. Palmer seemed to want to avoid expected appeals from Mr. McIntyre and became more ‘creative’ in their approach to denying FOI/EIR requests, as in this exchange floating his idea of Copyright on the database.

    #0780

    http://foia2011.org/index.php?id=730

    Dave says (edited):
    ‘Copyright’ in the contents of a database would require some personal creative input by ourselves to the data or database that would render it different from preceding external versions and ‘original’.

    To which Phil responds, “Piece of cake.” or words to that effect:

    “Your idea about ‘copyright’ of the database is an excellent one. Over the last 30 years we have reworked the database on a number of occasions – every 3-5 years, so re-extending for another 15 years is fine.”

    I’m surprised he didn’t just come out and say there was no such thing as ‘original’.

  40. andymc
    Posted Jan 4, 2012 at 1:46 PM | Permalink

    Nik,

    All of the independent data compilers use the same data set (over 90% identical). As Steve McIntyre has pointed out previously, in this particular role, the likes of Giss and Hadley are merely “temperature accountants.”
    Giss has stated it takes only 0.25 man years to do the calculations (and they are laid back academics!)
    In the real world, if you gave the same set of books to three teams of accountants, you would be surprised if you got back three different answers, so I don’t think the controversy is here.
    However, if you asked for your books back because you were being audited by the taxman and the accountants you hired couldn’t find them, they’d quite rightly get their arses kicked.

4 Trackbacks

  1. By Climate Capers | Cranky Old Crow on Dec 28, 2011 at 3:57 PM

    [...] Evading Mosher’s FOI [...]

  2. [...] worthy read on the delaying tactics by CRU is up at Climate Audit (two actually if you follow the embedded link to part 1 of the story). Heels dug in, Jones was [...]

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    [...] Climate Audit [...]

  4. [...] Climate Audit by Steve McIntyre Skip to content Hockey Stick StudiesStatistics and RContact Steve McProxy DataCA blog setupFAQ 2005Station DataHigh-Resolution Ocean SedimentsSubscribe to CAEconometric ReferencesBlog Rules and Road MapGridded DataTip JarAboutCA Assistant « Evading Mosher’s FOI [...]

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