In yesterday’s post (as noted), I only responded to one aspect of Schmidt’s Yamal article, as it contains numerous extraneous spitballs, each of which takes time to respond to.
In yesterday’s post, I focused on points of agreement or points where agreement ought to be possible. In a subsequent RC comment, Schmidt complained that I had failed to respond to his “main point”, which now appears to be his ruminations on the UK Freedom of Information Act.
Schmidt complained inline:
Also of interest is that McIntyre doesn’t even mention the main point I brought up. That this is ongoing and *unpublished work*, and there is a clear FOI exemption for this (for obvious reasons), that can only be trumped by a clear public interest – and despite the endless exaggerations by McIntyre about the importance of these reconstructions, that bar is nowhere close to being met.
The argument in the post itself was:
UK FOI legislation (quite sensibly) specifically exempts unpublished work from release provided the results are being prepared for publication. So McIntyre’s appeals have tried to insinuate that no such publication is in progress (which is false) or that the public interest in knowing about a regional tree ring reconstruction from an obscure part of Siberia trumps the obvious interest that academics have in being able to work on projects exclusively prior to publication. This is a hard sell, unless of course one greatly exaggerates the importance of a single proxy record – but who would do that?
Gavin expanded further on his interpretation of UK legislation in an online response as follows:
RC Reader Jason had written:
UK FOI legislation (quite sensibly) specifically exempts unpublished work from release provided the results are being prepared for publication.” Gavin, this is simply untrue.
Response: You are incorrect, see Section 22. It is not an absolute exemption (it can be overridden by a great enough public interest), but the text is quite clear that: “Information is exempt information if— (a) the information is held by the public authority with a view to its publication, by the authority or any other person, at some future date (whether determined or not)”. Please look stuff up before accusing people of lying (that would be the lesson all around actually). – gavin]
First, let me make a passing editorial comment about all-too-characteristic Real CLimate rhetoric – the inflation of any criticism into a supposed “accusation” against integrity. In this case, Jason had merely asserted that Schmidt’s statement on FOI legislation was “untrue”. Schmidt responded by accusing Jason of “accusing people of lying”. Jason had done nothing of the sort. He merely said that Schmidt’s statement was “untrue”. The express language contained no accusation or even implication that Schmidt had been “lying”.
Jason’s experience here very much accords with my own – a matter that I’ll return to some time.
Schmidt’s argument was based on UK Freedom of Information Act section 22. Now let me quote from the opening paragraph of my Appeal:
On Feb 28, 2011, I submitted a request under the Environmental Information Regulations 2004 (EIR) to the University of East Anglia (UEA) for a regional tree ring chronology referred to an April 28, 2006 Climategate email … On March 28, 2011, the UEA refused all three requests, citing the exemptions set out in sections 6(1)(b) (available elsewhere), 12(4)(d) (incomplete) and 12(5)(c) (intellectual property rights) [my bold].
My request and appeal are under the Environmental Information Regulations, rather than the Freedom of Information Act itself. Speaking colloquially, I’ll sometime (perhaps even often) use the more familiar term “FOI” to describe these proceedings, but the actual applications and appeals are under the Environmental Information Regulations, which under UK practice and precedents have been found to govern this sort of data and information. The EIR is related to the Freedom of Information Act, but differs on some important issues, (which David Holland, in particular, has paid close attention to.) The EIR has been discussed in a number of blog posts, sometimes at exhaustive length.
In short, no matter how convinced Schmidt may be that UEA has a slam-dunk case under FOI section 22, the actual decision will turn on whether they have a case under either EIR section 12(4)(d) or EIR section 12(5)(c).
I submit that the argument is by no means as clearcut as Schmidt believes and urge him to re-read my Appeal in terms of the actual exemptions at issue, rather than the inapplicable one that caught his fancy. In addition, Schmidt should weigh the fact that East Anglia has already lost numerous decisions. In the present case, a number of East Anglia exemption claims have already been discarded; and I’ve already been notified of success on one aspect of the appeal (the list of sites).
After misunderstanding UK law on the matter, Schmidt made the following editorial remark:
So McIntyre’s appeals have tried to insinuate that no such publication is in progress (which is false) or that the public interest in knowing about a regional tree ring reconstruction from an obscure part of Siberia trumps the obvious interest that academics have in being able to work on projects exclusively prior to publication. This is a hard sell, unless of course one greatly exaggerates the importance of a single proxy record – but who would do that?
The first claim is completely untrue.
None of my appeals “insinuated” that no such publication is in progress. The point is irrelevant to exemptions 12(4)(d) or EIR section 12(5)(c), as opposed to Schmidt’s imaginary application of FOI section 22. Further, in my Appeal, not only did I not make the alleged argument, but I quoted at length from David Palmer’s brief describing CRU’s planned publication (see page 13). It’s frustrating that Schmidt makes untrue statement after untrue statement without ever correcting or apologizing,
Schmidt’s argument about trade-offs partly transposes to the EIR “intellectual property right” exemption, but not totally. And while his argument may seem “obvious” to academics, I can say with total certainty that his argument is far from “obvious” to professionals and non-academics, once the data is cited by IPCC and policy decisions are made, even in part, from such data.
Whether policy-makers chat with Schmidt about proxies hardly resolves the tradeoff. The “regional tree ring reconstruction from an obscure part of Siberia” was one of only eight proxies shown in the IPCC AR4 proxy graphic and was used in 5 of 8 AR4 medieval multiproxy reconstructions. If IPCC had not cited Yamal, then the situation would be different. But it did.
East Anglia’s argument under section 12(5)(c) is that disclosure of the data would result in financial loss to the university through reduced grants. Their argument on this point is far-fetched. However, in a tradeoff between relatively remote prospects of reduced grants,as compared to the public interest in a complete record for data used by IPCC, it is hardly “obvious” that the financial interest of the University of East Anglia should be preferred. (In passing, given the usual vehemence with which climate scientists reject suggestions that alarmism is affected or influenced by grant-seeking, it’s ironic that CRU’s primary argument in this case depends on grant-seeking.)
Another important issue that Schmidt more or less sweeps under the carpet is that, in my opinion, many, if not most, professionals would regard the contemplated Yamal-Urals regional chronology as being within the scope of Briffa et al 2008 and, not in the strictest sense, “unpublished”. I realize that reasonable people can disagree on this point and that many academics may not. The difficulty arises because Briffa et al 2008 did not properly disclose that they had considered various Yamal-Urals regional chronologies but had not been able to “finish” one in time for the article. In my opinion, had this been properly disclosed, the editor and reviewers would have demanded that they “finish” the calculation as a condition of acceptance. I’ll discuss this issue some more in a separate post.
Much of the present problem arises from the dissembling Muir Russell “inquiry”, which should have dealt with all of this, but negligently failed to do so.