Appeal to Information Tribunal

I’ve appealed to the Information Tribunal, continuing the longstanding effort by David Holland and I to obtain the attachments to Wahl’s surreptitious email to Briffa, containing Wahl’s changes to the IPCC assessment of the Hockey Stick from the assessment sent out to external reviewers. (Wahl’s changes appear to have been incorporated unchanged in the final report.)

The correspondence is online here. The adverse ICO decision of 2012-02-02 is here; the attachment to my application containing the Grounds of Appeal is online here.


  1. Posted Mar 1, 2012 at 2:29 PM | Permalink

    In relation to documents 1 and 3, it refused to provide this information as it stated it was withheld under regulation 6(1) (information which is publicly available), regulation 12(4)(d) (unfinished documents) and regulation 12(5)(f) (impact on the voluntary supply of information).

    I’m intrigued that they make an exception
    For “unfinished” — this odd method hatched.
    Since the thing went out, and got reception
    “Finished” happened when it was attached!

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

  2. Steven Mosher
    Posted Mar 1, 2012 at 2:36 PM | Permalink

    nicely done

    • Jimmy Haigh
      Posted Mar 1, 2012 at 2:43 PM | Permalink

      Steven Mosher.

      You are obviously a very smart guy but I do wish that you would use correct punctuation…

      Steve Mc: In Gleick style:

      “eats, shoots, and leaves”

      • Steven Mosher
        Posted Mar 1, 2012 at 3:49 PM | Permalink

        Sorry Jimmy.

        If you’d like a copy editing job, I’ll pay u $1.5 an hour. I’ll even provide the blue pencil.

        • RayG
          Posted Mar 1, 2012 at 6:00 PM | Permalink

          Tsk, tsk. You are ignoring Federal and, depending upon your state of residence, local minimum wage laws. Don’t forget to include full health care, vacation and sick leave.

      • Posted Mar 1, 2012 at 10:31 PM | Permalink

        I’ve often commented about Mosher’s horrendous punctuation. Him being an English major, my guess is he’s using some sort of “smart” phone or tablet. Using proper punctuation with one of those can require much more effort. I can understand how it could tedious to constantly correct the corrections.

  3. Solomon Green
    Posted Mar 1, 2012 at 2:46 PM | Permalink

    A very well-stated appeal. I am, however, intrigued.

    “However,the Commissioner also notes that were a number of “independent inquiries and studies” [1 – citing The Berkeley Earth
    Surface Temperature (BEST) study (October 2011) ] following “climategate” and they did not call the
    validity of the climate science at UEA into question. The Commissioner must acknowledge the work of
    these expert inquiries and he finds that cannot give further weight to the public interest in disclosure given
    the external validation of UEA’s work.

    Did the Commissioner ever refer these documents (a number of independent inquiries and studies)to you asking for your comments? Even if the documents were discovered by him and he was not referred to them by UEA, he is out of order in taking into account evidence for which you were given no opportunity to rebut.

    • George Daddis
      Posted Mar 2, 2012 at 1:42 PM | Permalink

      Is the BEST “study” a valid citation given that to my knowledge it has not been peer reviewed or published?

  4. stan
    Posted Mar 1, 2012 at 3:39 PM | Permalink

    Have any media been putting heat on UEA about why they are hiding information? I think that a few journalists and bloggers could create some serious discomfort by simply noting every day that goes by without transparency from UEA is another day that UEA gives science a black eye. Keep a running tally of black eye days.

  5. Posted Mar 1, 2012 at 3:50 PM | Permalink

    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

    Sorry, Steve, in light of the unbelievable contortions on which some decisions were apparently based, the above paragraph – as currently written – may well be used as grounds to dismiss the entire appeal.

    No doubt The Commissioner will note in particular that there is no “.” at the end of this paragraph and that submission to an “IPC Lead Author” would have no bearing on an IPCC report.

    • Posted Mar 1, 2012 at 3:55 PM | Permalink

      You’re suggesting that he will be full-stopped
      By this error that happens periodically?
      And that not holding “P” so that it dropped
      Will make these peons act idiotically?

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

  6. David Holland
    Posted Mar 1, 2012 at 4:22 PM | Permalink

    In Don Keiller’s Tribunal hearing, Jonathan Colam-French, from the witness box, admitted that no record management policies existed at the CRU in 2008.

    In the Climategate 2 Palutikof email, 2526.txt, Phil Jones said that that Keith Briffa and Tim Osborn moved all the emails re AR4 on their PCs, from the individuals that I named in my 5 May 2008 request, onto a memory stick.

    When asked, in FOI_10-112, how many items Keith Briffa had taken home for so-called “safekeeping”, David Palmer replied, on 19 November 2010, that there were 4337. See page 7 of

    • ianl8888
      Posted Mar 1, 2012 at 5:08 PM | Permalink


      In Don Keiller’s Tribunal hearing …

      Do we know the current status of Don Keiller’s case, please ? Or anyone ?

      • David Holland
        Posted Mar 1, 2012 at 5:18 PM | Permalink

        No appeal was submitted by UEA a few days ago when Don asked and it is now long passed the 28 days allowed.

        • ianl8888
          Posted Mar 1, 2012 at 6:10 PM | Permalink

          Thanks David

          Fascinating ! We may see the offending emails yet. I wish Don good karma

  7. David Holland
    Posted Mar 1, 2012 at 4:29 PM | Permalink

    And I should have mentioned that the Excel sheet attachment to Jonathan Overpeck’s email to Keith Briffa, which I FOIA’d in November 2009 was found by Keith Briffa on a memory stick in March 2010.

    On the balance of probabilities UEA still hold what Steve and I both asked for.

    • Steve McIntyre
      Posted Mar 1, 2012 at 4:51 PM | Permalink

      I’ll send a supplement mentioning these excellent points.

      Rebutting every inaccuracy and misinformation in UEA’s information to the COmmissioner would have required a much longer submission. I had to leave some unrebutted in order to emphasize what seemed to be the more important points.

      • David Holland
        Posted Mar 1, 2012 at 5:15 PM | Permalink

        You will have a chance to respond to the Commissioner’s reply when the Judge issues directions.

    • Corey S.
      Posted Mar 1, 2012 at 6:34 PM | Permalink

      “On the balance of probabilities UEA still hold what Steve and I both asked for.”

      If you look at one of the CG2 emails, you can see how they have come to the conclusion that they “do not hold” the documents. It may be smart to address this point.

      Dave Palmer says:
      The argument is as follows: guidance from last year from the ICO indicates that information in which the institution has no interest but physically possesses, is not ‘held’ by them for the purposes of the Act.

      “In most circumstances private emails sent or received by staff in the workplace would not be held by the authority as it has no interest in them. It will be a question of fact and degree whether a public authority does hold them, dependent on the level of access and control it has over the e mail system and on the computer use policies. It is likely to be the exception rather than the rule that the public authority does hold them.”

      • David Holland
        Posted Mar 2, 2012 at 3:29 AM | Permalink

        Re: Corey S. (Mar 1 18:34),

        The information requested by Steve is “environmental” subject to the EIR definition of “held”, which is “created by or received by the authority”. Should shove get to push, I would argue that they were under an obligation to retain it so long as it remains relevant to UEA’s functions.

  8. David Holland
    Posted Mar 1, 2012 at 4:40 PM | Permalink

    As for the “independant” enquiries, I am still disputing that the Russell Review ever was. The ICO advised me today that the records of the Russell Review were “centralised” at Russell’s solicitor. The obvious questions are who is who is paying for their storage, for how long and for what purpose?

    • Steve McIntyre
      Posted Mar 1, 2012 at 4:46 PM | Permalink

      I agree 100% with you that it was not “independent” in a legal sense. It did not have any marks of independent legal existence, such as even a bank account. The panelists were paid by invoice to the university and not by invoice to the panel. The only reasonable legal description is that it was a task force of the university staffed by consultants to the university.

  9. Craig Loehle
    Posted Mar 1, 2012 at 5:17 PM | Permalink

    People keep using the term FOIA but the full name is “Freedom of Information ha ha just kidding Act”, or so it would seem…

    • Posted Mar 1, 2012 at 10:43 PM | Permalink

      Freedom of Only Mostly Useless Information Act

      • Posted Mar 2, 2012 at 8:55 AM | Permalink

        Formal Obstruction Is Allowed
        For Obvious Information, Actually
        Forever Objecting Intelligent Appeals
        Frenetic Obfuscation Is Assured
        FOIA Obeys Infallible Authority

  10. BobM
    Posted Mar 1, 2012 at 6:31 PM | Permalink

    OT, but since punctuation is fair game I thought I’d mention the proper use of “me” vs. “I”.

    In your opening sentence:

    “I’ve appealed to the Information Tribunal, continuing the longstanding effort by David Holland and I to obtain the attachments…”

    should be:

    “I’ve appealed to the Information Tribunal, continuing the longstanding effort by David Holland and me to obtain the attachments…”

    To test proper usage, take the other person out of the sentence and it becomes clear:

    “… continuing the longstanding effort by I to obtain the attachments…”


    “… continuing the longstanding effort by me to obtain the attachments…”

    • Scrutineer
      Posted Mar 1, 2012 at 7:10 PM | Permalink

      BobM, thanks for beating me to it.

      • John Slayton
        Posted Mar 1, 2012 at 9:11 PM | Permalink

        Where were you guys during “Midsummer’s Night…?”

        • BobM
          Posted Mar 2, 2012 at 5:19 PM | Permalink

          Saw that too – but punctuation is a topic du jour and grammar is related. Correcting references to Shakespeare is waaay too OT.

      • David Anderson
        Posted Mar 2, 2012 at 6:43 AM | Permalink

        Thanks Bob, it’s important to use correct grammar because these kind of slips can be used as fingerprints when – I mean if, you’re fabricating documentary evidence.

  11. Eric Barnes
    Posted Mar 1, 2012 at 10:31 PM | Permalink

    My reading of 12(5)(f) is that the legitimacy of the exemption would hinge on whether Briffa was “on the clock” in his capacity as lead author.

    “For the purposes of paragraph (1)(a), a public authority may refuse to disclose information to the extent that its disclosure would adversely affect –
    the interests of the person who provided the information where that person –
    was not under, and could not have been put under, any legal obligation to supply it to that or any other public authority;
    did not supply it in circumstances such that that or any other public authority is entitled apart from these Regulations to disclose it; and
    has not consented to its disclosure.”

    If he was performing grant work, public authority would be UEA. If not, I don’t think that the IPCC meets the definition of “Public Authority”.
    Public authority (Freedom of Information Act)
    Any body, any person, or the holder of any office listed in the Freedom of Information Act, or designated by order, and publicly owned companies. Examples of some of the public authorities covered by the scheme are, government departments, local authorities, NHS bodies (hospitals, doctors, dentists, pharmacists and opticians), schools, colleges and universities, the police, the House of Commons and the House of Lords, the Northern Ireland Assembly and the National Assembly for Wales.

    • Geoff Sherrington
      Posted Mar 3, 2012 at 8:48 PM | Permalink

      Did you miss the Royal Family on purpose?

      • Eric Barnes
        Posted Mar 4, 2012 at 10:50 AM | Permalink

        You’ll have to elaborate.

  12. Johan i Kanada
    Posted Mar 2, 2012 at 4:01 AM | Permalink

    On the topic of grammar: “..effort by David Holland and me” (not “..and I”)

  13. Posted Mar 2, 2012 at 4:44 AM | Permalink

    David and Steve must be kicking themselves – if only they’d done a Gleick and pretended to be someone else not only would they have got all the information they wanted they would, undoubtedly, have received the adulation of those who have, at least, beatified Gleick if not yet canonised him.

    More seriously, there is the question of what should be in the public domain. If two paleoclimatologists, to avoid using real names let’s call them Bran and Miffa, exchange emails in which they disagree about each other’s work, at what point should, if at all, their disagreement be made public? (I’d better restrict my use of commas from now on – otherwise I’ll be accused of impersonating Gleick.) If Bran thinks Miffa’s MIA is too deep or Miffa thinks Bran’s MWP is too high but they later resolve their differences does their disagreement matter and should it be made public? I would argue it does not matter until actions based on their conclusions have a public impact. At that point full disclosure of the reasoning, the data on which it based and the code of any programs used to reach the conclusions should be mandatory.

    It is often said that Generals are always preparing to fight the last war. Perhaps we should move on and start petitioning governments to insist on full disclosure of all relevant data and models which are used to support the conclusions of the next set of IPCC Technical Reports.

  14. Alan Watt
    Posted Mar 2, 2012 at 6:26 AM | Permalink

    Good luck Steve.

  15. David Ellis
    Posted Mar 2, 2012 at 6:29 AM | Permalink

    I am a supporter so please don’t take this the wrong way.
    Recent events have highlighted the need for good punctuation and grammar.

    So please look at your own comment :

    “I’ve appealed to the Information Tribunal, continuing the longstanding effort by David Holland and I to obtain the attachments….”

    If you use “by” then it must be followed by the objective, not the subjective.

    So it should read “I’ve appealed to the Information Tribunal, continuing the longstanding effort by David Holland and me to obtain the attachments…”

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