Game on – NOAA’s refusal of documents earns them a lawsuit

We’ll see how badly they want to protect these emails, and if they rise to Mannian UVa protection level seven.

Over the last couple of days, CEI’s Chris Horner has been emailing me news of a FOIA request he made earlier in the year. The FOI request is for correspondence between NOAA’s Dr. Thomas Peterson and Thomas Stocker, the head of the IPCC Working Group 1. It is hoped that this correspondence might get him some information on the IPCC secret letter sent by Stocker to all of the IPCC lead authors right after Climategate:

We have the announcement above, but not the attachment.  The attachment is apparently secret since nobody wants to talk about it or even acknowledge its existence.

Steve McIntyre wrote an eviscerating essay about the secret letter circulated by the IPCC to UEA/CRU, which they are refusing to divulge, because:

there would be an adverse effect on international relations between IPCC WG1 and academic institutions within the United Kingdom because it would force is to reconsider our working arrangements with those experts who have been selected for an active role in WG1 AR5 from your institution and others in the UK”.

McIntyre writes:

On Feb 26, 2010, as part of their first response to Climategate, Thomas Stocker, a Climategate correspondent of Phil Jones and by then Co-Chair of AR5 WG1, sent a still secret letter to all WG4 Lead Authors, Coordinating Lead Authors and Review Editors under the letterhead of WG1, purporting, it seems, to represent the parent IPCC organization. The existence of this secret email came to light as a result of David Holland’s persistence in trying to cut through IPCC authoritarianism and secrecy. After learning of its existence, David submitted an FOI request, which has been refused, and which is now under appeal at the Tribunal.

What’s happened is that NOAA has not responded with a refusal, documents, or even replied to acknowledge Horner’s request. That’s a legal no-no.

Horner, an attorney skilled in such matters, said this is something called “constructive refusal”, and it throws opens the door for an immediate lawsuit, and he’s taking advantage of it.

Horner says in his email:

We will soon learn out how badly the global warming establishment wants to fight to keep this, and similar public records, from the public. Will NOAA disregard the caviling from usual suspects and promptly move to produce the record, which should take mere minutes? Or will it heed the calls and hunker down, risking a certain judicial order affirming what an inspector general has already concluded.

IPCC-related records in the possession of government employees (or accessible by them, now that we know about third-party servers established to dodge FOI laws), are indeed agency records subject to release to the taxpayers who underwrite the IPCC enterprise.

It’s game on now:

The full legal document (PDF) is here:

Horner-CEI_NOAA_Peterson_Stocker_FOIA_Lawsuit

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45 Responses to Game on – NOAA’s refusal of documents earns them a lawsuit

  1. I wouldn’t be surprised if in the near future there was simply an all out effort on the part of ‘climate science’ to scrap FOIA altogether.

  2. thelastdemocrat says:

    They won’t release the letter. No way. Cuz it has info on Romney’s tax returns for ten years, and has Obama’s birth certificate info. /humor off.

  3. Ed Reid says:

    One wonders why agencies of the federal government believe they are exempt from federal laws written to include them specifically.

    “Enquiring minds want to know.”

  4. Very interesting to see what happens next.

  5. Hilton Gray says:

    Oh my, pull up chair and break out the popcorn! Entertainment fest is on, first Mark Styn v Mann, now this! Fantastic!

  6. sean;fr says:

    There is no indication of a follow up communication after the initial. They can creditably say we were on holiday and we over looked it, or the in box was full and we lost the email, or we just have no record of the email – style the dog eat my homework.

    The normal, calm persons action would be to resend the request by snail mail with proof of delivery or give them a call, or otherwise GENTLY remind them.

    Imagine if you were threaten with legal action you failed to read a email. This is way way to aggressive and looks like haressment, even if it legally valid.

  7. Jeff Mitchell says:

    This is going to be fun. Get the popcorn out. Failure to respond to reasonable requests do not make happy judges. Rule number one of litigation is don’t make the judge mad….

  8. SanityP says:

    I’ll bet that that letter is in the FOIA.zip along with some other goodies.

  9. EM says:

    NOAA shouldn’t be made to produce the email. That would have a chilling effect on government sponsored … uh, well, it would be chilling, OK?? Yeah, so there.

  10. u.k.(us) says:

    nuclearcannoli says:

    September 6, 2012 at 8:51 am

    I wouldn’t be surprised if in the near future there was simply an all out effort on the part of ‘climate science’ to scrap FOIA altogether.
    ====================
    This is how it starts, in Obama’s home state of Illinois.
    http://www.dailyherald.com/article/20110830/news/708309733/

    “FOIA changes create ‘nuisance’ class, critics say”

    “Changes to the state’s Freedom of Information Act allow government agencies to delay response times to individuals who are deemed to have made too many requests.

    The “recurrent requester” provision of the law signed by Gov. Pat Quinn Friday allows government agencies to delay responses up to 21 days for individuals who make more than seven requests in a week, 15 requests in a month or 50 requests in a year. The state’s FOIA law requires government agencies to fulfill information requests within five days, though taxing bodies can demand a five-day extension if they deem the request to be too time-consuming.”

    Slippery slope, and all that.

  11. aquix says:

    sean;fr says:
    Imagine if you were threaten with legal action you failed to read a email. This is way way to aggressive and looks like haressment, even if it legally valid.

    haressment? If they read the mail or not is completely irrelevant. They are subject to a FOIA request and should be handed over without any futher legal action. Read or unread is a red herring.

    And btw. This is no game. Policies are being planned and implemented based on the science being correct, and these employees of the people refuse to let independent parties review their public work and communications. Come back and talk to me about harrasment when old people die because they can’t afford the spiking energy prices caused by policies based on science we’re not allowed to review.

    Look at the big picture please..

  12. “One wonders why agencies of the federal government believe they are exempt from federal laws written to include them specifically.” – Ed Reid

    The laws are never meant, in their minds, to apply to them. Only to us simpletons who need to be governed by their wiser-than-thou selves. The government has never been about setting reasonable rules for free and responsible people to abide by, it has always been about busybodies trying to control other people’s lives and force them to live to standards the busybodies themselves disregard on a whim. Their reasons and causes being oh so noble and all that…

  13. kirkmyers says:

    The Obama administration’s contempt for the law is well established. (See the ATF “Fast and Furious gunwalking scandal and AG Eric Holder’s refusal to cooperate with congress.) What makes anyone believe that the same administration would give a hoot about NOAA’s failure to respond to an FOIA request?

  14. James Padgett says:

    sean;fr says:
    September 6, 2012 at 9:25 am

    “There is no indication of a follow up communication after the initial. They can creditably say we were on holiday and we over looked it, or the in box was full and we lost the email, or we just have no record of the email – style the dog eat my homework.”

    I understand where you are coming from, but on the other hand, I highly doubt my local traffic cop would let me off the hook if I failed to read the stop sign I barreled through.

  15. Neo says:

    NOAA shouldn’t be made to produce the email. That would have a chilling effect

    At last, a solution to AGW. Release the letter, save the World

  16. old engineer says:

    sean;fr says:
    September 6, 2012 at 9:25 am
    “There is no indication of a follow up communication after the initial. They can creditably say we were on holiday and we over looked it, or the in box was full and we lost the email, or we just have no record of the email…”
    =========================================================================
    Haven’t spent much time around lawyers or government bureaucrats have you? You can bet the FOI request was NOT emailed. It undoubtedly had to be submitted in a particular form to a specified office address and delivered either by the U.S.P.O, or FedEx, or by hand, and signed for when received.
    Lawyers know how to do this. NOAA will not be able to deny they got the request. Thus the lawsuit.

  17. TImothy Sorenson says:

    Oh,I am so going to enjoy all the followup. And when the judge rules for immediate release of the documents and they release the email and NOT the attachments because they don’t save attachments…I eagerly await the follow-up.

  18. Ian W says:

    It is a pity that the legal action is taken against faceless NOAA. Ideally, it should also be taken against the individual(s) who failed to respond. While its against the organization no problem – who cares knock yourself out. However, once it starts getting personal and individuals have to take time to talk to lawyers about their own liabilities then there could be an altogether different response.

  19. Mashiki says:

    @Neo

    Very odd isn’t it? That all these supposedly transparent people who prattle on about being transparent, with nothing to hide. Want to hide all these supposedly transparent things.

  20. Robin says:

    February 2010 is after the Belmont Forum was set up but before the Belmont Challenge was issued as these clowns went operational with their gut capitalism and let the state plan the economy in the name of Green Growth scheming.

    If you have never seen the post I wrote about why NOAA does not care about actual temps and has issued a formal report called USGCRP 2012-2021 on using education and social science and psychology to model and influence behaviors anyway, here it is http://www.invisibleserfscollar.com/if-reality-is-ignored-or-disregarded-when-do-we-become-
    a-state-against-its-people/

    As the post shows the govt site dealing with this is globalchange.gov.

    The MIT site pushing systems theory and the IGSM model is http://globalchange.mit.edu/research/IGSM . MIT is on my radar because of systems theorists Peter Senge and Otto Scharmer there. And their Sustainability and education K-12 initiatives.

    I am showing my ignorance on computers and domain names here but I find it interesting that globalchange is always the prefix. Basically these are all models to gain political change whatever the hard science may be.

  21. kirkmyers says:
    September 6, 2012 at 10:34 am
    The Obama administration’s contempt for the law is well established. (See the ATF “Fast and Furious gunwalking scandal and AG Eric Holder’s refusal to cooperate with congress.) What makes anyone believe that the same administration would give a hoot about NOAA’s failure to respond to an FOIA request?
    ================================================================

    Well, were it in the UK, I would say – because it is now a matter for the judiciary, and not the executive. How things work (?) in the States, I have no idea. If they work at all, of which there seems to be little evidence for a few years now.

  22. ciremasle says:

    If Obama wins, he could issue an Executive Order declaring FOIA invalid in these and other cases.

  23. JEM says:

    I think realistically what’s going on here is this:

    CEI filed their FOIA via email.

    Now, maybe there was an SMTP problem somewhere. Maybe there was a screwup inside NOAA. Or maybe they really did decide to duck and cover.

    Had they not done so, had they responded, we could expect the usual sort of six-month slow-walk in the denials, the administrative appeal, the issuance of a piece of paper two-thirds covered with black redaction blotches, another administrative appeal, another denial, and finally a trip to court.

    The appearance of misdeed, or at least of failure of procedure, gives CEI a chance to run to court and possibly short-circuit this process, getting the request in front of a judge where it was probably going anyway, just that much sooner.

  24. Hot under the collar says:

    Oh dear an NOAA own goal with the ‘Streisand effect’ : )
    Still, I won’t hold my breath for the truth to come out, although Chris Horner seems like a dog with a bone!

  25. JohnC says:

    It’s obvious. This information is so transparent, it’s invisible! They wouldn’t know if they have it or not. Also, so was the FOI request, they couldn’t see it either.

  26. Streetcred says:

    September 6, 2012 at 11:55 am | Mashiki says:
    @Neo Very odd isn’t it? That all these supposedly transparent people who prattle on about being transparent, with nothing to hide. Want to hide all these supposedly transparent things.
    ————————

    It’s so transparent it can’t be seen. :)

  27. SanityP, I would love you to explain how it might be in the possession of FOIA. Think about it.

  28. mfo says:

    The implication in the response is that the letter may include some kind of threat, whereby if the letter were to be exposed the consequences would be inclusion on an IPCC blacklist. What kind of information, which is so secret that if it was made public would result in some of the CAGW hockey team stars being blacklisted by the IPCC? The more that is exposed, the nastier and murkier climate science seems.

  29. Note that paragraph #20 of the legal filing specifically says the request was sent by “electronic mail.” However, most email systems do have receipt notification, and to specifically identify Sept. 4 as the required reply-by date, I have to believe CEI was certain the message was received on the date it was sent, August 6. It would be an incredibly silly mistake by experienced lawyers not to have this simple assurance.

  30. Robin says:

    mfo-I was doing some research from the 80s back when what is now called the Anthrpocene Era was still called the Ecological Age. The author, an admirer and advocate, referred to ecology as the deceptive science. It is. People just assume it is a natural science not a social science designed to deliberately subvert natural science.

    I also learned just how widespread the intense hatred is for the Axemakers Mind, reason, and traditional science and math. Ecology, climate science grantmaking, and pedagogy all make superb weapons to literally try to prevent any unauthorized future innovations. It’s both scary and fascinating all at once.

    And expensive as we pay for bad education, spurious corrupting grants, AND remediation. Ouch!!

  31. JEM says:

    Kerry in Iowa – No SMTP-based electronic mail system has a mandatory, verifiable receipt verification system. Receipt notifications are voluntary and are sent only if the receiver’s mail client is configured to do so.

    Mail server logs can identify whether a message was received at a particular server, and possibly depending on configuration whether that message was subsequently accessed by a particular user, but this would be internal NOAA information (potentially subject to FOIA, I guess…)

    I would think that a ‘catchall’ inbox like FOIA@noaa.gov should have an autoresponder associated with it, that the mail system would be configured automatically to acknowledge receipt of the message at their server, but perhaps that’s not the case.

  32. Afraid4me says:

    So much for “The most transparent administration ever.”

  33. Mario Lento says:

    Aquix, your comment at September 6, 2012 at 10:13 am is cogent. THANK YOU FOR SPEAKING MY MIND BETTER THAN I COULD HAVE WRITTEN IT!!!

  34. climatebeagle says:

    Is it likely the e-mail would have been sent to all 619 of these WG1 AR4 authors?
    http://www.eecg.utoronto.ca/~prall/climate/AR4wg1_authors_table.html

    I wonder if any would still have the letter and be willing to share it since it is subject to FOIA.

  35. climatebeagle says:

    Interesting coincidence:

    Some four and a half hours after Stocker sends the letter out Richard Black (then at the BBC) blogs about the IPCC:

    http://www.bbc.co.uk/blogs/thereporters/richardblack/2010/02/forget_the_norfolk_polices_cri.html

    Could Richard Black have received the letter? Might a FOI request to the BBC work?

    (Assuming 10:26am is Bern time, Black wrote at 14:05 UK time).

  36. stacyglen says:

    From the attachment the request was served by email to a FOIA account. it is real easy to overlook an email in the holiday period. Email accounts fill up and refuse mails. People delete mails to have the space to reply. To show they willingly failed to perform you need to show the mail was delivered to a suitable person. Lost in the post is a valid legal defence. That is why papers are served in a way to show they really got it.

    If you do not want to to look like a bully, you calm things down. Look at the Heartland emails, They have got the right idea. .

  37. Paul Schauble says:

    stacyglen: What you missing is that a government agency subject to FOIA has a legal obligation to process FOIA requests promptly, not to let the inbox fill up, not to delete the requests. If any of those things happened, then the agency has failed in their legal duty.

  38. lawrie says:

    Some wise man once said when we practise to deceive it all goes pear shaped. NOAA will find he was correct.

  39. patrick says:

    Is this the same Stocker who engineered a “transparency” statement into the IPCC policies which effectively made for more secrecy and less transparency?

  40. Ted says:

    Can I copies of all correspondence between WUWT and Heartland Institute?

  41. highflight56433 says:

    kirkmyers says:
    September 6, 2012 at 10:34 am

    “The Obama administration’s contempt for the law is well established. (See the ATF “Fast and Furious gunwalking scandal and AG Eric Holder’s refusal to cooperate with congress.) What makes anyone believe that the same administration would give a hoot about NOAA’s failure to respond to an FOIA request?”

    ..careful who you vote for. With the USA federation increasingly so corrupt, no wonder states are contemplating an exit from the whole and lawsuits against the holy reign of agency style dictatorship abound. And in preparation, the USA insecure paranoid leadership has federal agencies loading up with arms; as we heard from the great predictor of his own words to build a new army. Don’t be bury your head in the sand where rose colored glasses in an escape of this ongoing transformation.

  42. stacyglen says:

    I understand that a government agency has a legal obligation to process FOIA requests promptly,
    I understand the context of obstruction. But just look at the Heartland emails to Peter Gleick before the identity theft. He was always plainly hostile. They could see the hostile tone but still replied in a agreeable manner. That plays much better to general public than being agressive even when you have cause.
    I would locate the FOIA persons business address sent a record letter, with a copy of the email and very politiiy say the FOIA was overdue. That makes you a helpful person not the bully.

    The island folks already claim the FIOA is being used for haressment. The cost of a follow up communication was triviai. I do not understand the need to go nuclear so quickly. If they reply now with a “we are sorry about the delay, but the spam filter eat the email”, and the legal action looks like what ?.

  43. Jean Parisot says:

    There are specialist law firms that only do FOIAs and related document requests, I find their fee’s modest and reasonable. They handle all of the requesting, follow up, tracking, fee negotiation, etc. I won’t shill for one or another, but if your going to submit a request, that’s the way to go. Additionally, attorney-client privilege protects your identity. Some of them archive requested data, if someone else has already requested it, then they send you a copy for a small fee.

  44. TonyG says:

    Ted says:
    Can I copies of all correspondence between WUWT and Heartland Institute?

    You DO understand that neither of those are government agencies, and are therefore not subject to FOIA, whereas NOAA IS, right? Or are you just trying to change the subject?

  45. Ted says:

    If they have nothing to hide they would send me copies, its obvious by them not supplying copies they are trying to hide something.

    /irony

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