“Misconceived”

In the FOI request under appeal, one of the two outstanding issues is my request for a copy of the Wahl and Ammann version, as submitted to Lead Author Briffa and used in the AR4 First Draft. East Anglia has argued that Briffa received the article under conditions of ordinary academic confidentiality. My counter-argument is that he received them in his capacity as an IPCC Lead Author. And that, in any event, he certainly didn’t treat the article as “confidential” since he cited it in the IPCC First Draft. Under IPCC policies, IPCC Lead Authors were required to place unpublished articles in an online archive available for reviewers. The lugubrious history of Wahl and Ammann has attracted attention in the community critical of the Team, see e.g. Bishop Hill’s excellent Caspar and the Jesus Paper.

If I were in East Anglia’s shoes, I wouldn’t have wasted two seconds fighting this FOI request. I’d have told Wahl and Ammann that we didn’t think that we received the article on a “confidential” basis since it was expected to be used in IPCC, that we had had enough headaches and didn’t want to have one more fight, and therefore we expected them to acquiesce in our decision. If I were the UEA administration, I’d have asked Jones and Briffa to agree with this decision and get Wahl and Ammann to cooperate. That’s what any sane person in the private sector would have done.

Instead, East Anglia has contested every step of the FOI, which has now reached the Tribunal.

As with all legal proceedings, they take on a life of their own after a while and so it is with this case. In today’s post, I’ll discuss an interesting fact-law issue arising out of East Anglia’s submission to the Tribunal on May 9.

In the Information Commissioner decision presently under appeal, the ICO had applied the exemption under EIR section 12(5)(f) as follows:

33. In this case the University has argued that the authors of the requested documents [Wahl and Ammann] provided this information to the University and that those authors were not under or could not be put under any legal obligation to provide the information, the University is not entitled to disclose it and the authors have not consented to disclosure. The Commissioner accepts this position [my bold]…

One of the curiosities in the procedure is that I was never provided copies of the University’s submissions or arguments. A few days after receiving the decision, I requested copies of the University’s submissions, which the ICO treated as an FOI request (as opposed to documents routinely provided to an opposing party in a dispute.)

There is a short appeal period for ICO decisions. As of March 1, 2012, more or less the last day of the appeal period, I had not heard back from the ICO and submitted an appeal to the Tribunal.

A little later in March, I received a partial response from the ICO, but three submissions from the University were exempted on the grounds that they were submitted “in confidence”.

In my Grounds of Appeal, I took at face value the ICO’s assertion that “the University has argued that the authors of the requested documents [Wahl and Ammann] provided this information to the University” and argued that they had no expectation of confidentiality because it was provided for use in an IPCC Assessment Report:

21. I submit that Wahl and Ammann consented to disclosure of this article by their decision to submit the article to an IPC Lead Author for consideration (and eventual use) in the IPCC

In response, UEA argued this week that my case on this point was “misconceived”. Not because of defects in my case as presented (though they would doubtless argue this if pressed), but because Wahl and Ammann had not provided the article to Briffa. Changing the story from the one in the ICO decision, they now aid that the article was sent to Briffa by Jones (then an IPCC Coordinating Lead Author), who, in turn had received it from Mann (a former IPCC Lead Author and a reviewer of the Zero Order Draft). They observed that the terms under which Mann received the article were “entirely unclear”:

32. Mr Mclntyre’s case on this issue is misconceived. Mr Mclntyre’s case proceeds on the basis that document 1 was obtained by Professor Briffa in circumstances where it had been sent to him by Drs Wahl and Ammann in his capacity as IPCC Lead Author (s. 21 GoA). However, document 1 was not sent by Drs Wahl and Ammann to Professor Briffa. In fact, Professor Briffa only obtained a copy of document 1 as a result of it having been forwarded to him by Professor Jones, under cover of an email dated 4 January 2005. Professor Jones obtained his copy of document 1 as a result of its having been sent to him by Professor Mann on 30 December 2004. It is entirely unclear how Professor Mann obtained a copy of the paper and on what terms, save that Professor Mann is clearly of the view that the paper should be treated as a confidential document. In the circumstances, there is no basis for inferring that Drs Wahl and Ammann had consented to the publication of document 1, whether under the IPCC rules or at all.

Watch the pea here.

The provenance described in the present submission is supported by a Climategate email (CG2 – 1737; also in CG1) showing that Mann had sent the article to Jones and that Jones had sent it to Briffa. I was well aware of this thread. However, this email does not in itself preclude the possibility of Wahl and Ammann directly providing the article to Briffa – as, according to the ICO, the University had argued. As East Anglia has pointed out from time to time, the Climategate dossier does not include all emails.

From the perspective of my Appeal, I was not in possession of the University’s submissions to the ICO and proceeded on the basis that the ICO had correctly summarized the University’s argument on this point and that the University had not provided inaccurate information to the ICO.

The only reason why I argued “on the basis that document 1 was obtained by Professor Briffa in circumstances where it had been sent to him by Drs Wahl and Ammann in his capacity as IPCC Lead Author” was that this was the basis of the ICO decision.

If, as the University now claims, the authors of the requested document 1 did not provide the information to Briffa, then the premise of the ICO decision falls apart. In order to invoke an exemption, the University would have had to argue that the 12(5)(f) exemption applied under the entirely different circumstances where IPCC Lead Author received the document from Jones, who in turn had received it from Mann, who had obtained the document under circumstances that were “entirely unclear”. This is a much harder job for them.

This raises the question of the basis of the ICO’s statement that “the University has argued that the authors of the requested documents [Wahl and Ammann] provided this information to the University”. This argument does not appear in the submissions from the University that have been provided to me, but some of the submissions were apparently provided to the ICO “in confidence”.

Did the University make this argument in one of the “confidential” submissions? Or did the ICO simply misunderstand the University on this critical point? I’ve written to the ICO’s solicitor asking him to clarify this point. I’ve also urged the ICO to make a submission acknowledging the error on this point (regardless of whether it was through their misunderstanding or inaccuracy in the information provided to them by the University) to avoid perpetuating the error.

30 Comments

  1. Stephen
    Posted May 11, 2012 at 8:56 AM | Permalink

    Sorry to post this comment again. However, I do so since I think you need to communicate very clearly what it is about Yamal which makes the story so important.

    I suggest a simple post in the form of several bullet points (useful for attracting the attention of journalists) and links. Some ideas about those bullet points are given below.

    (1) An update of a temperature reconstruction with more data removes the hockey stick and implies there is nothing unusual about 20th century temperatures.
    (2) The scientist who led this update withheld the results and pretended never to have made the study (this is called cherry picking and is simply not allowed for obvious reasons).
    (3) Freedom of information requests and complaints to journals eventually allowed point (1) to be established and gave strong evidence that point (2) is well founded.
    (4) There is consequently strong evidence that the accounts given to the various Climategate inquiries (including a UK Parliamentary inquiry) about this update (or lack of update) are untrue.
    (5) There are therefore serious questions which UAE must answer. To keep silent or to deride the accusers is unacceptable. Similarly, to respond that it “doesn’t matter since we’ve got other hockey sticks” is also unacceptable, not least since Yamal is strong evidence of publication bias which just as easily affect other activities in this field.

    ps Note to Steve and any moderators: I won’t spam again after this post.

    • Posted May 11, 2012 at 2:05 PM | Permalink

      I would also like to see a couple sentences explaining afresh why the Wahl and Ammann email / attachment is so crucial. Sorry if I’ve got the following wrong, but if I have, I’m sure others will have as well.

      Does this concern the successful attempt to slip into the IPCC Summary for Policymakers, at the last hour, unnoticed, and against official IPCC procedure, material that downgraded / rubbished / trivialized / made otherwise invisible Steve and Ross’s work showing effectively that global temperature data were seriously compromised by UHI? IIRC, Steve Mosher is on the case of this one.

      But then there’s the Wahl and Ammann story that Andrew Montford recorded as Caspar and the Jesus Paper which is about statistical malfeasance by W&A in a Hockey Stick support paper (or two).

      Is there a URL for the basic storyline?

      Steve: In a word, yes. Some of the posts are tagged: try http://www.climateaudit.org/tag/wahl.

      • Steven Mosher
        Posted May 11, 2012 at 4:50 PM | Permalink

        WRT to UHI.
        The wahl and ammand paper is not relevant to that.

        the temperature record is not implicated by anything in the mails

        the mails start with Yamal and end with Yamal.

        temperature data is important in one regard.

    • seanbrady
      Posted May 14, 2012 at 5:04 PM | Permalink

      I recommend looking at the post entitled “Yamal FOI Sheds New Light on Flawed Data”, which was three posts before this one.

      For more information on the relevance of Yamal, look for the first section of that post, which is entitled “Relevance of Yamal”.

  2. theduke
    Posted May 11, 2012 at 10:00 AM | Permalink

    It is entirely unclear how Professor Mann obtained a copy of the paper and on what terms, save that Professor Mann is clearly of the view that the paper should be treated as a confidential document.

    So UEA has huddled up with the Mann and learned what he thinks. Interesting. Parallels his joining with UVa. UEA, UVa whats the diff?

    The Mann behind the curtain . . .

    • DaveS
      Posted May 11, 2012 at 5:14 PM | Permalink

      It looks odd – bizarre even – that the UEA should make this statement. For Mann to be ‘clearly of the view that the paper should be treated as…confidential..’ must mean that he can explain why he holds this view i.e. he (Mann) knows perfectly well how he obtained it. As this matter is central to the UEA’s claim, did it not occur to any of the great minds at the UEA to simply ask Mann? It also seems odd that Mann would tell Jones ‘this is confidential’ without explaining why.

      This doesn’t sound very plausible to me.

  3. Posted May 11, 2012 at 10:10 AM | Permalink

    Reblogged this on Climate Ponderings.

  4. morebrocato
    Posted May 11, 2012 at 10:19 AM | Permalink

    I wonder if the ATI / UVA dispute will shed further light on this..?

    At the moment the thought is that professors are not ‘waiving their privacy rights’ when distributing their material to like-minded scientists when publicly funded and working for a public University– such that they can retain a consistent right of refusal whenever they feel a requester fails the ‘purity of heart’ test.

    At last check, the judge is still chewing on that one.

  5. Dave L.
    Posted May 11, 2012 at 11:45 AM | Permalink

    “In the circumstances, there is no basis for inferring that Drs Wahl and Ammann had consented to the publication of document 1, whether under the IPCC rules or at all.”

    This statement doesn’t hold water since the document content was incorporated and cited in the IPCC First Draft. How was it cited? As “in press”? If the latter, then that nails down the coffin.

  6. KnR
    Posted May 11, 2012 at 1:01 PM | Permalink

    You only have to read Phil Jones own words to know that CRU intend to but considerable effort into avoiding any and all FOI’s not matter how silly.
    Jones claims he done FOI training simply makes no sense given the length of this legislation has been in place and the mandatory training which is a norm in HE.

    Frankly the FOI officer at UEA needs to bring Jones in line with the reality of his legally required duties over this , if not there will be much more FOI based grief heading CRU’s way . I have little doubt that Jones and ‘the Team’ have indulged in some rather unwise techniques to try and keep things ‘of the record ‘ and away from FOI’s . But we have seen time and again that when they think their being most smart their actual being least intelligent.

    And if I was the FOI officer I start to worry about who will end up carry the can for when it all goes wrong , my advice to them would be to man up and more importantly cover your own back before Jones and Co stick the knife in to try and save themselves.

  7. Pat Frank
    Posted May 11, 2012 at 1:12 PM | Permalink

    Steve M.s observation that, “If I were in East Anglia’s shoes, I wouldn’t have wasted two seconds fighting this FOI request.” goes right to the foundational honesty of the parties. Steve has an honest approach; the UEA does not (my opinion).

    By its relentless opposition to transparency, the UEA has made itself now full party to any final judgment against Keith Briffa, Phil Jones, Eugene Wahl, and Caspar Ammann regarding secret dealings and subversion of IPCC procedures.

    It’s hard to believe the ICO misunderstood the UEA’s original representation. Steve’s doing his usual bending over backwards to give the benefit of the doubt to the opposition. It seems much more reasonable that the UEA has opportunistically changed its story, most likely to shift its ground and thereby prolong the process.

    They expect to succeed by either wearing you down, Steve, or by making the legal ground so confused, so murky, and so endless as to induce the ICO to eventually give up and make a summary judgment so as to just clear the mess out of the office.

  8. Don Keiller
    Posted May 11, 2012 at 2:28 PM | Permalink

    Steve you have my sympathy.
    Corresponding with UEA on FOI matters is like trying to hold onto an eel.

    What amazes me is that the ICO continues to swallow and then defend UEA’s arguments. This is despite the ICO themselves accusing UEA of prime facie breaches of FOI Law.

    Cognitive dissonance?

    • ianl8888
      Posted May 11, 2012 at 11:42 PM | Permalink

      @Don Keiller

      Could you tell us, please, what the current state-of-play is with your own battle ?

      It’s been some months since I last read of this and I’m sure several deadlines have passed since then

  9. Posted May 11, 2012 at 3:05 PM | Permalink

    “If I were in East Anglia’s shoes..”

    I’m chuckling, because I expect that even the measured person Stephen McIntyre would have fired the lot of them well before that point.
    ;-)

  10. Posted May 11, 2012 at 3:16 PM | Permalink

    In this fray, they’re as you say
    Entirely unclear
    They cannot rest the “confi” test
    And leave it sitting here
    They seek redemption in that exemption
    That only might apply
    But if they’ve said it’s Mann instead
    One story is a lie

    This does expose the ICO’s
    Complicity it seems
    For if he fails to blast two tales
    He’s liable in reams
    Or he should be if we could see
    Some fairness in this mess
    It’s hard to fight until some light
    Makes clear what’s now a guess

    ===|==============/ Keith DeHavelle

    • Gary Richardson
      Posted May 11, 2012 at 5:53 PM | Permalink

      Keith-
      That’s brilliant! Summing punning, unless I miss my guess.

      Keep it up,
      Gary

  11. JCM
    Posted May 11, 2012 at 3:57 PM | Permalink

    What authority is there for ‘confidential submissions ‘ to the ICO ?

  12. MarkB
    Posted May 11, 2012 at 4:35 PM | Permalink

    “If I were in East Anglia’s shoes, I wouldn’t have wasted two seconds fighting this FOI request. ”

    That’s why they are them, and you are you. From their point of view, there’s nothing to lose. If the ruling is against them, they’ll have to give up the documents. If they fight, at least they have a chance to prevail. And prevailing means successfully resisting doing something someone else wants you to do. In any case, they aren’t spending their own money.

    When information is power, the more I have that you lack, the more power I have. This is why government stamps Top Secret on documents, and refuses to release them a generation later, even when the information contained is trivial. The fact is, when we know and you don’t, we have power you lack. And the power to say ‘no’ is probably the greatest power of them all.

    • Posted May 12, 2012 at 9:04 AM | Permalink

      The power [more appropriately 'authority'] to say ‘yes’ is actually the greatest power, which is why people who have only the power to say ‘no’ tend to exercise it with such wild abandon, they are essentially powerless.

      W^3

  13. Posted May 11, 2012 at 4:38 PM | Permalink

    I note Gavin won’t show your graph
    And attempt to defend the omission
    He instead tries to have the last laugh
    With his comical faux-exposition

    One new item seems a bit much
    In RealClimate’s new “anti-Steve” stink
    He suddenly is out of touch
    Whereas elsewhere, he knows what they think:

    “For reasons that are as yet unclear (since the full ICO ruling has not yet been issued), the list of components from which the regional reconstruction might be built were released by UEA.”

    So suddenly, Gavin knows not
    What the rationale was for release
    Some significance it’s likely got
    To cause his perfect knowledge to cease

    Either his buddies told in advance
    And he’s hiding that bit in this manner
    Or he wrote it while taking a chance
    That their statements might toss in a spanner

    Could he write this whole missive from scratch
    And on that point, not even inquire?
    He’s been hip deep in plots they would hatch
    Well, his forthrightness fails to inspire

    ===|==============/ Keith DeHavelle

  14. Jeff Condon
    Posted May 11, 2012 at 5:43 PM | Permalink

    Tangled webs are tangled for a reason.


    I am truly impressed with how deep the cooperation goes. Why not yank the rug from the UEA few who have created the dark spot on the apple. Instead, even the justice departments seem to be unable to interpret the obvious.

    • Jeff Condon
      Posted May 11, 2012 at 5:44 PM | Permalink

      They won’t even release the submissions of argument in a court decision.

  15. stan
    Posted May 11, 2012 at 7:37 PM | Permalink

    How are submissions to a tribunal not required to be sent to the other parties (or their attorneys)? That’s bizarre.

  16. ianl8888
    Posted May 11, 2012 at 11:38 PM | Permalink

    This argument does not appear in the submissions from the University that have been provided to me, but some of the submissions were apparently provided to the ICO “in confidence”.

    So we have reached Alice in Wonderland – an FOI issue is subject to “confidential” submissions that are not allowed to be read by the FOI applicant.

    Kafka lives

  17. paul
    Posted May 11, 2012 at 11:47 PM | Permalink

    A few years ago I returned to the UK for a visit with my wife who is a New Zealander. One of the places I took her was to Runnymede where the Magna Carta was signed by King John, which gave his noble knights the right to be heard before being punished. The decision to refuse access to the submissions made in “confidence” has occured only because the tribunal allowed those submissions to be made “in confidence”. I believe they have erred in law to allow such submissions to be made in that way. Surely the tribunal works within a set of rules?

  18. Don Keiller
    Posted May 12, 2012 at 2:26 PM | Permalink

    @ian18888.

    The wheels grind very slowly, thanks largely to CRU obstructionist tactics.
    The Tribunal decision is “disproportionate” they plead.
    There’s too much data to search, it’s too expensive, it will take too much time.

    I got that one slapped down.

    They have conceded that the Police have allowed them to search the server.
    Now they are saying that depending on what the email says they “reserve the right to apply new exemptions”

    I think I have won that one too, but who knows?

    I think the next one they will try is to appeal the Tribunal’s decision.
    But that will be difficult as they should have made any appeal within 28 days.

    Still it will string it out just that bit longer….

    • ianl8888
      Posted May 12, 2012 at 8:16 PM | Permalink

      They have conceded that the Police have allowed them to search the server

      That is a BIG step forward – I greatly admire your patience. My quite long-life experience has shown me that when “Authority” feels threatened, it changes the rules, constantly

  19. AntonyIndia
    Posted May 12, 2012 at 8:35 PM | Permalink

    My comment vanished in thin air: no trace left, no e-mail received. I hope you are not picking up bad habits Steve:
    this is looking Real Climatesque. If you don’t like it please leave the box and just snip it in you normal fashion.

  20. Solomon Green
    Posted May 13, 2012 at 1:12 PM | Permalink

    “One of the curiosities in the procedure is that I was never provided copies of the University’s submissions or arguments”.

    Is it possible, even at this late stage, that you can bring this into your appeal? The tribunal might have some interesting comments to make on this failure by the Information Commissioner.

  21. Edwin
    Posted May 14, 2012 at 2:14 AM | Permalink

    I am a layman so please bear with me and point out my error.
    This issue seems to involve who has the licence to use the data and the terms of use.
    Since no one challenged Wahl and Ammann’s right to issue licence, I assume that their rights on the data have been proven beyond doubt.
    What remains in question is the intent or terms of the licence for use of the data when the data was passed to Mann.
    Apparantly Mann did not disclose in full the licnece on the data when he send them to Jones and so from then on UEA’s opinion is just conjecture/hear say and has no legal footing. If there is a licence then the full content of the terms of use should be made available.
    As to the enforcement of the licence, by rhe fact that for years Wahl and Ammann did not file any complaint over IPCC’s reference to their work and that IPCC ‘s charter would make such data available to the public, I cannot see how to establish the fact that Wahl and Ammann still wish to enforce such licence is there ever was one. Therefore UEA has very little ground.
    If Wahl and Ammann do object then they should sue Mann for breach of license and may be everyone involved too and retract the reference in IPCC’s literatures.
    I must be missing some thing here.

    Steve: i’d express the point differently. It was also a submitted article rather ‘data”. I agree that they have to prove confidentiality at each stage of document custody.

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