Given the tumultuous events of the past few days, the receipt of yet another refusal to provide station data pursuant to an FOI request may seem a little uneventful. But the chronology of this most recent refusal is, to say the least, interesting.
In late July 2009, I appealed CRU’s decision not to provide then current station data, sending a follow-up letter on Sept 2, 2009, pointing out the inconsistency between their claims to be protecting confidentiality agreements dating back to the 1980s and their delivery of station data to the US Department of Energy in the early 1990s and posting on their website of station data versions in 1996 and 2003.
On Nov 18, 2009, I received the letter attached below from Jonathan Colam-French, Director of Information Services of UEA, turning down my appeal. The letter is dated Nov. 13, 2009. In the letter refusing the appeal, Colam-French says that he consulted a file on the matter.
Now consider the following chronology.
On Nov 17, 2009 at 9.57 pm occurred the first public notice of the 63 MB CRU file entitled “FOIA.zip” came at Jeff Id’s blog by a poster called “FOIA”, who stated:
We feel that climate science is, in the current situation, too important to be kept under wraps.
We hereby release a random selection of correspondence, code, and documents. Hopefully it will give some insight into the science and the people behind it.
The file contained emails up to and including Nov 12, 2009 (the most recent is 1258053464.txt) the day prior to the date on the letter refusing the appeal.
Housekeeping emails are absent from the file. In addition, the file contains statements by Jones that he had “deleted loads of emails” (1228330629.txt) and a request from Jones to Mann to “delete any emails you may have had with Keith re AR4”, noting that similar requests were being made to Briffa, Wahl and Ammann (1212073451.txt).
I first learned of the existence of the file a few hours after notice was posted at Jeff’s blog and first saw the files a day later. I know nothing of the provenance of the FOIA.zip that is not in the public domain.
Here’s the letter.
ENVIRONMENTAL INFORMATION REGULATIONS 2004 – INFORMATION REQUEST (Our ref: FOI_09-44; EIR_09-03)
Pursuant to Mr. Palmer’s letter of 21 September 2009 to you regarding the handling of your appeal of 24 July to our response of the same date in regards your FOI request of 26 June 2009, I have undertaken a review of the contents of our file and have spoken with Mr. Palmer and other relevant staff involved in this matter. I apologise for the delay informing you of my decision but we were awaiting the ‘further particulars’ in relation to this matter that you mentioned in your email of 2 September. Having not received such particulars, I have decided to proceed, given the passage of time, with my decision in their absence.
As a result of this investigation, I am satisfied that our overall decision to not disclosethe requested information is correct.
In response to your first point in your email of 24 July regarding the non transmission of data to non-academics, I have concluded that the reference to non-academics was in error and that the status of yourself, or any other requester, is irrelevant to the factors to consider regarding disclosure of the requested information.
Turning to the points you raised in your email of 2 September, you note that other earlier versions of this data are available on the US Department of Energy website and that Dr. Jones had sent an earlier version of the data to you and had mounted it on FTP server.
In regards the information provided to the US Department of Energy, my investigation has revealed that this was done in the early 1990s prior to the imposition of the restrictions now pertaining to the data pursuant to a contractual obligation at the time. Therefore, the analogy you are drawing does not apply to the data that is the subject of this request.
In regards your second point regarding the provision of the data to yourself, and the fact that the information was mounted & left on our FTP site & also provided to Georgia Tech without securing consent of the institutions that provided it, we would, upon reflection, consider this an action that we not choose to take again. However, having made errors in past does not, in our eyes, justify making the same errors again.
I note that in your email of 2 September, you state that your request was ‘for the current version of the data set’ but in your original request, you asked for the subset of data that was sent to Georgia Tech University. I would advise that the many of the same restrictions apply to the full CRUTEM dataset as apply to the subset sent to Georgia Tech, but this analysis and answer is based on your original request.
In regards the substance of the exception claimed under Reg. 12(5)(f), I would maintain the position taken to date. There are restrictions on the release of at least some of the data cited, and our opinion is that any release would be contrary to the agreements, and release would have an adverse effect on those organisations. DEFRA guidance notes that the Aarhus Convention, which contains the origins of the Directive on which the EIRs are based, protects information volunteered by a third party and requires their consent to disclose it. The purpose of the exception is to encourage the free flow of information from private persons or institutions in order to protect the environment where making it available to the public could inhibit that process. To provide information that has a restriction on further transmission on it would not only damage CRU’s ability to secure such information in future, but would also harm the interests of the organisations providing the information, who clearly have an interest in restricting transmission of the information due to the very existence of the restrictions.
Regulation 12(11) requires that we provide as much requested information as is possible outside the coverage of any applicable exception. After consultation with Phil Jones and other relevant staff in regards the nature and composition of the requested dataset, I have concluded that the data is organised in such a way as to make it extremely difficult and time-consuming to segregate the data in the manner that you suggest and would indeed, in our view, amount to an unreasonable diversion of resources from the provision of services for which we, as an institution, are mandated. Further, we would maintain that where no such segregation has, or will occur, we should not release any of the data for fear of breaching such restrictions as do exist.
I would note that we are, however, proceeding with efforts with the international community to secure consent from national meteorological institutions for the release of the information that they provide us with, and it is fully our intention to publish such data where, and when, we have secured such consent. This is in line with guidance from DEFRA that suppliers of volunteered information should be encouraged to consent to release where appropriate, and where it is lacking, such consent can be sought later in response to a particular request or in order to proactively disseminate the information.
In regards our obligation to assess the public interest in applying these exceptions, I am of the opinion that the public interest balance is in favour of non-disclosure of the requested information. As noted above, the public interest in maintaining the flow of information from institutions to CRU, and maintaining good working relations with international organisations, outweighs, in this case, the interest in the release of the data.
We have contacted the Information Commissioners Office in regards this matter and their advice is that if you are still dissatisfied with this response, you should, at this time, exercise your right of appeal to the Information Commissioner.