More Spurious East Anglia Arguments Rejected

An excellent article at Bishop Hill here describing a clean sweep for Don Keiller in court (with David Holland as a “Mackenzie friend”) against the University of East Anglia and its solicitors. Decision is here.

The article reports on Keiller’s appeal to the First-Tier Tribunal (Case No. EA/2011/0152) in the General Regulatory Chamber – Information Rights. The appeal related to the second part of Keiller’s original FOI – instructions sent by CRU to Georgia Tech on their use of CRUTEM. CRU had argued that they didn’t have the information because Jones had deleted the email and they did not have access to the server in police possession. All arguments by the university were dismissed, with the judge being more than somewhat acid in some of his comments.

The University of East Anglia’s argument was hampered by their failure to present direct evidence from Phil Jones. (Assertions by Jones were presented by what Don Keiller described as “third-hand hearsay” – a conversation between Jones and David Palmer, passed on to Jonathan COlam-French, passed on to the UEA solicitor. Keiller and Montford observe:

It appears that UEA were keen that Jones should not appear on the witness stand, where he would be required to give evidence under oath. In fact it is noteworthy that, despite all the official “investigations”, Jones has never been required to answer questions under oath or provide a signed declaration.


58 Comments

  1. Craig Loehle
    Posted Jan 23, 2012 at 12:38 PM | Permalink

    It is startling the expense UEA is willing to pay, and the bullying tactics, to prevent a private citizen from finding out that Jones did or did not (more likely) tell Webster any limitations on use of the data, and thus to open up the possibility of giving the data to others. Simply astonishing. And if they are now committed to putting the data on their website (heh), why even bother about preventing the data Jones sent Webster from being released? It simply makes no sense unless it is simply reflexive refusal to release anything anytime to anyone.

  2. matthu
    Posted Jan 23, 2012 at 1:19 PM | Permalink

    Craig – I don’t think it was the data Jones sent to Georgia Tech that they are so reluctant to disclose. It is the accompanying instructions sent by CRU on their use of CRUTEM.

    CRU are certainly creating the suspicion that the contents of this email are in all probability, let us say, outside of the spirit of FOIA – and maybe worse.

    Steve: I very strongly doubt that there was anything in the email to Webster that would be “worse” or in itself contentious. My guess is that they were primarily fighting for precedent. They wanted to argue that documents on the back-up server were not subject to FOI.

    • Craig Loehle
      Posted Jan 23, 2012 at 1:26 PM | Permalink

      Their excuse for not releasing the data sent to Webster is that there were restrictions accompanying the data–the request for the email was to prove that there were none. I’m betting there were none. Which makes the entire resistance by UEA so strange.

      • matthu
        Posted Jan 23, 2012 at 3:22 PM | Permalink

        I was simply suggesting that the instructions may have been along the lines of “Here you are: I’m happy to let you see the data but whatever else you do, keep it out of the hands of A,B or C” (that’s the polite version”

  3. Posted Jan 23, 2012 at 1:47 PM | Permalink

    I think Steve has nailed it. UEA probably wanted to fight on the principle that if the email only exists on a back-up server then it is not subject to FOI. That is why they brought in an IT guy to talk about the backup and data retention regime. Luckily, though, they had not properly thought it through. Their disinclination to let Jones give evidence, though, is very strange.

    • steven mosher
      Posted Jan 23, 2012 at 4:12 PM | Permalink

      the guy they brought in was not an IT guy.

      • David Holland
        Posted Jan 23, 2012 at 4:20 PM | Permalink

        Re: steven mosher (Jan 23 16:12),

        He’s the Library guy.

      • Martin A
        Posted Jan 23, 2012 at 5:16 PM | Permalink

        onathan Colam-French’s job title is Director of Information Services, according to the UEA’s website.

        But in the Muir Russel enquiry’s interviews, it was made clear that UEA IT had nothing to do with the operation of CRU’s backup system, although it was housed physically in the central IS machine room.

        http://www.cce-review.org/evidence/UEA-CRU_IV3_IT_Final_Formal1.pdf

        You’d have thought that either Colam-French would have got clued up a bit before appearing before the tribunal or that the UEA’s legal team would have put forward someone who had actually been involved with the CRU back up system. Unless they thought it was actually to their advantage to have a witness who could not answer any questions.

        • Martin A
          Posted Jan 23, 2012 at 5:23 PM | Permalink

          [From the Tribunal's decision:

          "The Tribunal were rather disconcerted by the evidence adduced by the UEA on this issue. Jonathan Colam-French had almost no knowledge of the CRU's back-up system and was simply unable to answer several pertinent questions." ]

        • JohnH
          Posted Jan 24, 2012 at 4:39 AM | Permalink

          My guess is they thought the hearing would never happen and expected the threat of paying the UEA expenses of several £1000’s would be enough to stop Keiller going forward. Don Keiller took a huge personal risk in taking this forward and should be commended in the highest terms, David Holland also deserves recognition in the help he gave.

        • Posted Jan 23, 2012 at 10:24 PM | Permalink

          “Colam-French’s job title is Director of Information Services”

          More like the Information Retrieval. Oh, and is your name Buttle?

      • Posted Jan 23, 2012 at 6:05 PM | Permalink

        The hearing started with Jonathan Colam-French (Director of Information System at UEA

        quote from Bishop Hill – sounds like IT to me

        • steven mosher
          Posted Jan 23, 2012 at 6:23 PM | Permalink

          sorry you had to read the muir russell report and some of the emails to understand the dudes role.

          for example, he was the wone who signed off on Steve’s appeal.

          The IT guy(s) is somebody else.

        • Posted Jan 23, 2012 at 7:10 PM | Permalink

          irrelevant in the context of this hearing…

    • Duster
      Posted Jan 24, 2012 at 4:17 PM | Permalink

      In the US one might suspect that a Fifth Amendment defense was being set up. No “open doors” left in easy view. Heh, the CRU-gate emails may be simply some one who detests Jones personally.

  4. Posted Jan 23, 2012 at 1:47 PM | Permalink

    Steve is almost certainly right, that this is all about precedent. What is less clear is what it actually is that UEA is trying so hard to hide.

  5. Posted Jan 23, 2012 at 1:49 PM | Permalink

    FOI request:

    http://www.whatdotheyknow.com/request/keiller_v_ic_and_university_of_e

  6. Brandon Caswell
    Posted Jan 23, 2012 at 2:11 PM | Permalink

    I think precedents is their reasoning. Not just about the back up email. But about testing the waters to see if they can work the courts into an almost university researcher immunity to FOI. It of course is backfiring, but I think that is a suprise to them and comes from a feeling that the “powers that be” have their back and will protect them. A feeling increased by the ease with which their “investigations” were completed and not challenged except by skeptics.

    As far as not letting Jones on the stand, I think it has to do with the worry that he will be asked questions about issues they don’t want him under oath to answer. As long as he is kept out of sworn testimony, he can really say whatever he wants, independant of the truth. Since he is now almost the talking head for the whole UK climate industry, it is better to keep him out of places he can’t lie. If Jones is forced by oath to say things in court that contradict his media interviews, it would be a PR disaster. Better to look like jerks, than to look like serial liars.

    Of course these are just my opinions, but I have seen this before. A group that constantly quotes one person, but getting that individual available for questions is impossible.

  7. Posted Jan 23, 2012 at 2:51 PM | Permalink

    steve.

    The fact that the police still have the server is interesting.
    As long as the server stays in their possession CRU had this out.
    As long as the investigation stays open, the police keep the server.

    If I were cynical I would suggest that the police keeping the server
    ( and not merely copying the files and returning it) looks like a
    cozy relationship with CRU.

    Well that veil has now been pierced.

    • Steve McIntyre
      Posted Jan 23, 2012 at 4:55 PM | Permalink

      I agree that they’ve been quite content to use this excuse. I agree that they have a pretty cozy relationship with the police (perhaps helped by the strange consultants, e.g. Wallis). For example, if the police were concerned about use of leaked documents, they should have investigated Trevor Davies’ use of confidential documents in bidding for government contracts.

      • steven mosher
        Posted Jan 23, 2012 at 6:31 PM | Permalink

        If you look at a couple of the mails I FOI from december ( relative to sending requests to the countries) you will see that they are alert to the fact that those mails will fall under FOI.

        Its not unreasonable to assume that once the police had possession of the server, CRU would have realized that they did not want it back in their possession.

        The odd thing is all the real evidence is electronic. There is no need to hold the physical machine.
        Its not like somebody wire tapped it. Fingerprints would be taken. An image of everything would be taken.
        Why keep the physical machine? too lazy to return it? CRU never asked for it back? makes no sense.

        unless one is cynical and speculates.

        ford perfect will be along to suggest something silly.

        and then somebody will FOI all CRU mails related to requesting the server back from the police.
        I wonder if they paid for a replacement? there would be a purchase req for that.

        • mpaul
          Posted Jan 23, 2012 at 11:50 PM | Permalink

          Yes, but if the Police return the server, UEA will likely immediately destroy its contents (degauss the disk, then incinerate it, then dissolve the ashes in acid and then dump the sludge in the Marianas trench). The last thing they want to do is to have it returned to them.

          I imagine that UEA will now argue (or get the ever-dutiful Police to argue for them) that disclosure of Phil’s email to Webster would compromise the Counter-Terrorism Unit’s investigation, interfere with international relations and allow the nefarious secret agent from SPECTRE who perpetrated the “hack” under contract from the fossil fuel industry to escape. No, no, no, can’t have that.

        • Chris
          Posted Jan 24, 2012 at 7:27 AM | Permalink

          The police did clone and return the laptops taken when they “raided” Tallbloke – it is no different for a server.

    • Harold
      Posted Jan 23, 2012 at 9:49 PM | Permalink

      Universities having cozy relations with the police seem to be the norm. Prestigious institutions have a lot of influence, and keeping their more rowdy students out of jail is done all the time, at least in the US.

  8. David Holland
    Posted Jan 23, 2012 at 3:00 PM | Permalink

    I am still waiting for answers to my original requests FOI_08-23 and FOI-08-31, which I re-requested in October 2010 after the second public hearing of the Commons Select Committee on Climategate. The Commissioner is edging towards a Decision Notice on mine and there may well be others.

    The Tribunal Judge was rather dismissive of the idea that the police might not want to give the UEA back their server or at least an image of it. He pointed out that they were the supposedly the victim not the perpetrator.

    I have thought for some time that the UEA did not want it back. After all they had paid £9,000 to get all of Jones’ Briffa’s and Osborn’s emails off it 54 days before the ICCER Report was published and I find it hard to believe that no one was tempted to take even a sneaky peak at the emails to see what was there.

    What we do know now is that if they had done they would soon conclude that trying to put the originally leaked emails into some innocent context was not going to be easy.

  9. Craig Loehle
    Posted Jan 23, 2012 at 3:31 PM | Permalink

    Why on Earth can’t the police clone the server and give the clone at least back to UEA? How long could that take, 24 hours? Unbelieveable.

    • steven mosher
      Posted Jan 23, 2012 at 4:09 PM | Permalink

      they dont want to hold a copy of the mails on the back up server.

      • Scott Brim
        Posted Jan 23, 2012 at 9:30 PM | Permalink

        Re: steven mosher (Jan 23 16:09),

        This situation is truly bizarre. It’s like mixing the concepts behind “knowledge management” with what anti-establishment popular culture labels as “the thought police.”

    • Posted Jan 23, 2012 at 5:45 PM | Permalink

      The wheels of Justice turn slowly – generally speaking – and backwards in Norwich. Norwich’s finest haven’t finished cloning Tall Bloke’s machine yet. The plan is to get around to the CRU hard disks some time after the magnetic domains therein have reached their entropic asymptote. In the meantime, the server can only be approached in a clean room used for IVF treatment at Norwich general hospital.

      • Posted Jan 23, 2012 at 10:32 PM | Permalink

        I’m pretty sure TB got his stuff back a week or so ago.

        • Posted Jan 23, 2012 at 11:03 PM | Permalink

          Yes, I stand corrected!

    • scott
      Posted Jan 25, 2012 at 4:23 PM | Permalink

      Rules of evidence and chain of custody rules would preclude returning the server until the investigation of the leak has concluded (either via dismissal or court proceeding).

  10. steven mosher
    Posted Jan 23, 2012 at 4:11 PM | Permalink

    I wouldnt speculate on that. Its more likely that they dont recall everything they ever wrote.
    They are happy the police are holding the file. That way they could argue “we dont hold it”

  11. KnR
    Posted Jan 23, 2012 at 4:41 PM | Permalink

    IF AGW is has urgent has they claimed, IF the science is as settled as they claimed , IF their conduct is a ‘clean’ as they claimed , they would be need for any of this runaround BS in the first place . Indeed they should welcome the chance to rub AGW skeptics metaphorical noses in it and yet they don’t . You have to ask why ?

  12. ianl8888
    Posted Jan 23, 2012 at 5:17 PM | Permalink

    This Court decision is the primary nail in the FOI coffin

    The UK Parliament will amend the FOI Act (possibly retrospectively) to protect academic research – and within 6 months, I think

    • David Holland
      Posted Jan 23, 2012 at 6:06 PM | Permalink

      Ian,

      This case was heard under the Environmental Information Regulations which descends from a UNECE Convention, which the European Union has adopted. The UK can’t change it alone. The crazy thing is that it seems that only the UK bothers to enforce European Law. How many cases have we heard of in France or Germany?

      • ianl8888
        Posted Jan 23, 2012 at 6:53 PM | Permalink

        “The UK can’t change it alone.”

        Fair enough, David. But if the EU won’t enforce the EIR, why does the UK bother ? The UK Govt does not need the small number of votes from enforcement

        My comment was based on the current UK Parliament debate centred on this, plus Tony Blair’s recent comment while in Aus that “FOI was my biggest mistake”

        • Tom Gray
          Posted Jan 23, 2012 at 11:05 PM | Permalink

          I thought that listening to Gordon Brown was Tony Blair’s biggest mistake

        • Martin A
          Posted Jan 24, 2012 at 2:53 AM | Permalink

          You should understand that the UK is run by the Civil Service – not by the government. And that it is run primarily for the benefit of the Civil Service.

          There is a huge cottage industry of well-paid civil servants (with inflation-proof pensions) “gold-plating” regulations from Brussels ie re-writing them with added detail and then applying them in the UK.

        • ianl8888
          Posted Jan 24, 2012 at 3:11 AM | Permalink

          I found “Yes Minister” hysterically funny and very accurate, even on 2nd and 3rd viewings. Well applicable to Aus institutions as well, of course

  13. Don Keiller
    Posted Jan 23, 2012 at 6:23 PM | Permalink

    An interesting excerpt from the House of Commons Science and Technology Committee “investigation” into Climategate 1.

    Graham Stringer MP (Chair)
    Professor Acton (Vice Chancellor, UEA)

    “Q94 Graham Stringer: Right. I shall look at that.
    Professor Acton, are you satisfied that these questions
    weren’t asked, that people in your university were
    sending out e-mails suggesting that e-mails should be
    deleted and that hasn’t been investigated?
    Professor Edward Acton: It has been investigated. I
    have asked them and they have assured me that they
    have never knowingly deleted e-mails subject to a
    request.
    Q95 Graham Stringer: Did you ask them under
    caution?
    Professor Edward Acton: The relationship that I have
    with them is rather different. It is absolutely part of
    my duty to address that kind of spirit and make sure
    I drive it out of the university and establish the facts.
    Can those e-mails be produced? Yes, they can. Did
    those who might have deleted them say they deleted
    them? No. They say they did not. I wanted to be
    absolutely sure of those two, and I have established
    that to my satisfaction”

    So the emails, supposedly in the possession of the Police, can be produced. In fact I have (solid) evidence to support this.
    “In the possession of the Police” is another UEA red herring.

    And sorry we don’t ask Professor Jones nasty questions.

    • steven mosher
      Posted Jan 23, 2012 at 6:33 PM | Permalink

      Good one.

  14. DJA
    Posted Jan 23, 2012 at 6:48 PM | Permalink

    Very interesting! Does the decision mean that ALL the Emails now on the server in police protection/possession can be subject to FOI?

  15. observa
    Posted Jan 23, 2012 at 8:28 PM | Permalink

    Slowly but surely English Law is beginning to shine its light in dark places to disturb all the scurrying insects that dwell there. Fascinating how even top briefs can look like first year law students when they have nothing but Dr Jones hearsay to work with. No Judge could ignore the obvious- Where is this mythical Dr Jones you all speak so highly of? And when they couldn’t or wouldn’t produce him the Judge had no other course than to rightly treat the UEA with considerable suspicion thereafter. Even to the point of open hostility. You never want to go into Court and let the Judge feel you have something to hide and are deliberately trying to conceal that from the Court. You’re on a hiding to nothing thereafter.

  16. Posted Jan 23, 2012 at 9:53 PM | Permalink

    What is the U.S. government role in all this?
    .

  17. EdeF
    Posted Jan 23, 2012 at 10:16 PM | Permalink

    There exists in the common law the case that if some action is allowed to occur that
    is a violation of the law, but the law is not enforced for a considerable time, that
    the law in the particular case becomes void. Case in point is squaters rights. If you
    allow someone to live in a house you own and do not actively engage in removing them, then
    at sometime they can actually claim the property as their own. (insert latin phrase here)
    With UEA, if they can play rope-a-dope long enough and frustrate FOIA inquirers so much
    that they give up trying, then the FOIA law would essentially become null and void at
    UEA, and maybe other places as well. The best way to insure the application of FOIA law
    is to vigourously follow through with requests and appeals until it becomes a precedent
    that gov’t agencies must comply.

  18. stan
    Posted Jan 23, 2012 at 10:41 PM | Permalink

    Having woven the tangled web, straightening it may seem too complicated a task. Far easier simply to obstruct at every turn. I doubt that they have any overall strategy at this point. Just keep saying no to everything, all the time. It may prove counterproductive, but it’s not complicated.

  19. ianl8888
    Posted Jan 24, 2012 at 2:23 AM | Permalink

    @ David H or Don K

    from the Bishop Hill post:

    “UEA are now required to approach the Police to see if they will provide a copy of the email in question, and to see if they or someone else will extract it for them”

    as an outcome

    What external oversight of this outcome is there, please ? For example, who is to make sure that UEA actually make this request of the Police in a reasonable timeframe ? Who oversees any answer ? If such an email is eventually supplied by the Police, who oversees its’ release into the public domain ?

    I agree I haven’t fully read the actual judgement here, so apologies if these questions are therein answered already

    • ianl8888
      Posted Jan 24, 2012 at 2:33 AM | Permalink

      OK, I have it now. Most of these questions *are* answered in the judgement

      This leads to what I perceive as the weak point:

      Clause 1 a) in the judgement, which states

      “Whether the police are prepared to provide UEA with a copy or
      mirror of the data stored on the CRU’s back-up server so that UEA
      may establish the existence of and recover the email sent by Prof
      Jones to Georgia Tech on or about 15 January 2009″

      As I read this, there is nothing I can see to prevent the Police being NOT prepared to provide UEA with … etc

      I hope I’m wrong

      • Don Keiller
        Posted Jan 24, 2012 at 6:41 AM | Permalink

        Ian
        It has already been done- see correspondence below.
        I also have the copy of the invoice for £10,469.25, for “Extraction of Emails” sent to and paid for by UEA.

        On 14/04/2010 17:16, “XXXXXX” wrote:
        Dear Greg,

        Just a heads up. The Review Team discussed this yesterday and we have made a
        recommendation to the UEA Vice‐Chancellor (who in DPA terms owns this
        information on behalf of the University) that Qinetiq should be asked to
        proceed but just for three machines (those of Prof Jones, Prof Briffa and Dr
        Osborn). We have also suggested hiring a (highly reputable) independent
        forensic analyst to carry out a targeted search of this limited set of e‐mails
        on behalf both of the University and the Review Team We await a response from
        UEA…

        From: XXXXX
        Sent: 20 April 2010 13:50
        To: XXXXXX
        CC: ALASTAIRMUIRRUSSELL;
        Subject: Qinetiq contract
        Dear Greg,
        Further to the e‐mail below, UEA have just confirmed that they would like to go
        ahead, but only subject to the information being made available quickly to the
        independent analyst. They would need to have the information from Qinetiq
        (presumably on a portable hard disk) no later than next Monday 26th April.
        As I suggested below, we would want Qinetiq to make available all of the e‐mails
        held (sent, received, or otherwise stored) in the backups held of the PCs of just
        three individuals. Those three individuals to be: Prof.
        Phillip Jones, Prof. Keith Briffa and Dr. Tim Osbourn. These three are the
        significant focus for the e‐mails already in the public domain.
        Could you please confirm with Qinetiq that they can meet these requirements and the
        timescale?

        • ianl8888
          Posted Jan 24, 2012 at 4:52 PM | Permalink

          Thanks Don

          I genuinely appreciate your risk and effort here, greatly appreciate

          But the two emails you’ve quoted are (I think) after Jones may have deleted anything pertinent from his PC, although he ignored (or was unaware of) the back-up server that is the target of your successful appeal

          This seems to me then to leave the Police in the position (judging from Clause 1 a) of being able to decide to be NOT prepared to supply UEA with … etc. Perhaps they can claim “on-going forensic investigation” (after all, they have the backup server to examine for evidence of the alleged criminal activities of FOIA), or perhaps they may claim it comes under some Counter Terrorism umbrella (as with Tallbloke).

          As I said previously, I really do hope I’m wrong. We’ll know in about 4 weeks anyway. To put it succinctly, in my quite long experience when Authority loses, they simply change the rules. I’ve observed this to happen countless times

  20. Chris
    Posted Jan 24, 2012 at 7:30 AM | Permalink

    Will anyone be FOI-ing EUA to find out just how much money they have wasted / are wasting on this rather useless round of PR blunders ?

    First it was taking Delingpole to the PCC and now this with highly expensive counsel involved.

    All at my expense.

  21. Don Keiller
    Posted Jan 24, 2012 at 5:54 PM | Permalink

    Ian, the emails I posted are not “Climategate” emails, rather discussions about accessing the full set of emails, held on the backup server” for the Muir Russell enquiry. i.e. post-Climategate.
    As you can see UEA “owns” them via the Data Protection Act.

    • ianl8888
      Posted Jan 24, 2012 at 7:48 PM | Permalink

      Don K

      OK, excellent !! Seems to avoid the Police issue, so no excuse for the Court in about 4 weeks

      A fascinating and quite wonderful episode. It would be absolutely lovely (almost beyond words) if this eventually resulted in Jones being cross-examined under oath. Do UK Courts allow televised proceedings ?

  22. Dyspeptic Curmudgeon
    Posted Jan 30, 2012 at 12:13 PM | Permalink

    I think there is now *another* wedge point: an FOIA request for a simple answer to three questions, 1) were the Norfolk Police ever asked to provide to UEA complete clone copies of the server hard disks which were seized (apart from any particular extractions which were requested) and 2) whether the Norfolk Police ever provided complete clone copies of the disks and 3) whether the Norfolk Police ever *offered* to provide clone copies of the disks (whether free or to be paid for).

    Seems to me these three questions could provide some strong insight into UEA’s position. The cynic in me suspects that the answer to ‘3’ is ‘yes’, but UEA declined (or more likely, declined to answer at that time) so as to avoid having possession, so that the answers to ‘1’ and ‘2’ would be ‘No’ (in the hope that no-one would even *think* of question ‘3’).

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