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 Under IPCC policies, IPCC Lead Authors were required to place unpublished articles in an online archive available for reviewers.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.