The UK Information Commissioners Office (ICO) has made a letter available (here Summers_UEA_ICO_20100129 PDF) that in British terms could only be described as “gobsmacking”.
UEA is apparently trying to make the mere mention of a crime committed disappear.
This is ICO’s response to UEA’s Brian Summers, who wrote a letter to the ICO asking them to withdraw claims about the ICO’s position on a violation of the FOI law pertaining to CRU’s conduct.
…the ICO has been alerted by the complainant and by information already in the public domain via the media, to a potential offence under section 77 of the Freedom of Information Act. The prima facie evidence from the published emails indicate an attempt to defeat disclosure by deleting information. It is hard to imagine more cogent prima facie evidence…In the event, the matter cannot be taken forward because of the statutory time limit.
It makes clear that the UEA staff committed an offense by deleting emails subject to an FOI and were only saved from prosecution because the offense was timed out under the legislation, due to it’s built in statute of limitations.
In my email exchange with Jonathan Leake he points out to me that:
It’s fairly self explanatory except that in Point 4, Graham Smith, the commissioner refers to errors in The Times report without specifying them. I actually don’t know what he is referring to because although I initiated and researched this article it was Webster who wrote it as it was eventually appearing in The Times – his title.
Leake also mentions that “Webster does not accept that there were any errors in his article.”
Meanwhile, Bishop Hill reports that:
Some explanation of the rather surprising statements on FoI made by Sir Edward Acton and his colleagues in their submission to the Parliamentary Select Committee has emerged. As noted in the previous post, Sir Edward said that no offence under the FoI had been established and that the evidence was prime facie in nature. Here is the exact quote for reference
On 22 January 2010, the Information Commissioner’s Office (ICO) released a statement to a journalist, which was widely misinterpreted in the media as a finding by the ICO that UEA had breached Section 77 of the FOIA by withholding raw data. A subsequent letter to UEA from the ICO (29 January 2010) indicated that no breach of the law has been established; that the evidence the ICO had in mind about whether there was a breach was no more than prima facie; and that the FOI request at issue did not concern raw data but private email exchanges.
But there’s a problem, the word “private” has come up missing in Bishop Hill’s search:
And what about the statement that the information related to “private emails”. I’ve read and reread the document. I’ve put it through OCR and searched the text. The word “private” does not appear in the document.
Oh dear.
Quote from RC: “When global warming becomes so obvious that Joe sixpack can no longer deny it — which will happen before this decade is out — the backlash will be ugly.”
Uh-huh, another prognostication from the gang that can’t shoot straight. And what will make Joe really angry? It won’t be the thermometer. If “Cap and Trade” is passed, there will be even more government intrusion into our lives, Wall Street will pay out even larger bonuses, while Joe sixpack will be diminished to Joe fourpack.
(is there a missing HTML tag or something? There’s a little too much blue text in my mobile
browser)
I still can’t get over “no more than prima facie” evidence? What better evidence can you get? How can they write that except in an attempt to obscure the truth by hoping that the general public will not know the meaning? This has to be considered as a deliberate choice of words and thus as nothing short of obfuscation.
Simon H,
Yes it is a crime to lie to a parliamentary enquiry.
You can be called to the Bar of the House and the members can sentence you
to a gaol term, or whatever they think appropriate.
Robert of Ottawa
These were not “private” e-mails. All my e-mails at my workplace belong to my employer – no problem; they are written about my >>
Sorry, little known jurisdictional issue. In Canada and the United States e-mail sent during normal course of work is the “property” of the employer. In the UK, the e-mail is the “property” of the employee. Drives compliance officers nuts when they are trying to set data retention policies for multi-nationals.
So… speaking of data retention…. I find it difficult to believe that the information is gone. Accepted IT best practices are for a full backup to be performed once per week and daily incrementals (changes only) from which the state of the data on any given day can be constructed. Best practices also require that that these backups be stored off site, most frequently on tape media. Retention periods in theory can be as little as 12 months but most are in the 5+ year range. So if those deleted e-mails and missing data were on the server for more than 24 hours, I would expect that they still exist in the off site backup. I have no clue if an FOI request could be made against backup data. If there is no copy in the backup data, then the IT department is either totaly incompetent or complicit in the cover up.
Some explanation of the rather surprising statements on FoI made by Sir Edward Acton and his colleagues in their submission to the Parliamentary Select Committee has emerged. As noted in the previous post, Sir Edward said that no offence under the FoI had been established and that the evidence was prime facie in nature….
It’s interesting to note that Sir Teddy and his buddies are applying the same homogenisation trick to the English Language as the Team employed to manipulate Numbers.
As long as he’s acton for the best of reasons, I feel that adding his private(s) into the debate is a valid mechanism whereby his neutral stance is exposed to all.
Gawd bless you Teddy!
PRIVATE BANK
woops – i meant PRIVATE BANK robery
OR
PRIVATE bank robery
or
whatever.
Yep – that works
no problem – move along.
All WUWT readers should understand that Britain is now a banana republic, where Marxist politicians manipulate and propagandize all statements emanating from government sources and inclusive of the CRU which to all intents and purposes is an organ of the Marxist propaganda machine.
Therefore, any in depth inquiry is wholly and totally a white-wash and anyway government employees in the UK are automatically exempt from allegations of gross misconduct, inadequacy, incompetence, fraudulent activities and if found perpetrating any of the previous list, will automatically be considered for promotion and addition to the civil awards lists.
In GB it ‘pays to be bent’, should be a government motif.
Because if you are at the top of the Nu-Labour party, it simply wouldn’t do to surround oneself with competent and capable people – now would it?
This is all a case of semantics that perhaps those not conversant with British (or derived) justice systems do not follow.
There can be no guilt established until someone has been found guilty of a crime, and an essential part of any trial includes establishing that a crime was indeed committed. No trial, no conviction, no established offence!
Prima facie evidence has no standing except to suggest that a full trial should be carried out. An early part of the trial procedure is the “depositions hearing”, often carried out before a bench of “Justices of the Peace”*. At this hearing the Crown lays out their case and calls witnesses to provide evidence. The accused, who can question the Crown’s witnesses, rarely call their own although they have that right. The justices can either rule that there is no case to answer and dismiss the case (rare) or find that a prima facie case has been established and remand the case for trial, when it goes to a higher court and before a judge. There has not been any ruling of guilt, or even that a crime has indeed been committed. That is a prerogative of a judge.
*Justices of the Peace are not legal officers in any shape or form. They are chosen from (historically) upper middle class people of good character and standing in the community. In a hearing they are assisted by a clerk who is a lawyer who hopefully stops them from making any errors.
Booker researched the “time-expired” aspect and found no such time limit in the FOI Act –
http://www.telegraph.co.uk/comment/columnists/christopherbooker/7113552/Climategate-confusion-over-the-law-in-email-case.html
bit early for Phil and his mates to dance in the streets…
“It ain’t over ’til the Fat Lady sings.”
I think the Fat Lady has been singing so much since Nov 2009 that her voice is starting to fail.
Note To Self: Find a backup Fat Lady fast as possible.
John
The time period may have expired for an FOI violation, but does UK criminal law make it illegal to conspire to break laws such as FOI? What is the statute of limitations on a conspiracy?
Is it a criminal act or a firing offence to threaten to delete data which is government property, or which one has been paid to create?
And if someone makes an FOI request now for the materials which were deleted, is it an FOI violation if those materials can not be retrieved or the materials were not kept?
OT but here is an example of how when you mix environmental objectives with political advocacy you generally end up doing what is perceived to be good rather than what is actually good. In this case the people lobbying the government reject the use of actual data in favour of estimates to support their cause.
http://www.theaustralian.com.au/news/nation/insulation-scheme-will-result-in-greater-gas-emissions/story-e6frg6nf-1225834512557
Does the name George Orwell come to mind, another Brit as I recall.
the positive development is that enablers such as
Gerry North,
Jerry D. Sachs,
Geouffrey Boulton,
Edward Acton,
Lord Rees,
Tom Karl
now had to step forward.
their behaviours and opinions are often even more disturbing than those of the accused activist scientists, and it is good thing that this information is now available to the public.
@Henry chance: Easy. ‘Private’ Bank…
AnonyMoose (21:42:37) :
The time period may have expired for an FOI violation, but does UK criminal law make it illegal to conspire to break laws such as FOI? What is the statute of limitations on a conspiracy?
There is a similar discussion going on at Bishop Hill. It would appear that there may be an ongoing investigation of the failure to comply with FOI requests.
http://bishophill.squarespace.com/blog/2010/2/25/no-offence-established.html
Criminal conspiracies almost always take place in private. I Think.
The letter from the ICO also says:
“I can confirm that the ICO will not be retracting the statement which was put out in my name in response to persistent enquiries from the Sunday Times journalist Mr Jonathan Leake. … The statement was not inaccurate.”
and that statement said:
“The legislation prevents us from taking any action but from looking at the emails it’s clear to us a breach has occurred.”
That’s pretty clear.
Dennis Nikols (22:02:55) :
Does the name George Orwell come to mind, another Brit as I recall.
George Orwell, was his pen name, his real name was Eric Arthur BLAIR.
Now there’s a thought.
> The time period may have expired for an FOI violation, but does UK criminal law make it illegal to conspire to break laws such as FOI? What is the statute of limitations on a conspiracy?
I seem to remember it’s been covered elsewhere. I’m no lawyer, but I do remember the outcome of the discussion, which seemed fairly clear:
1. Yes a conspiracy to break the FOI is illegal
2. The conspiracy is just as time-barred as the breach. You can’t bootstrap your way round the time limit.
> Is it a criminal act or a firing offence to threaten to delete data which is government property, or which one has been paid to create?
I don’t think it’s a criminal act to delete data (assuming you authorised to do so, and not some hacker or exceeding your authority, etc).
It’s seems to be a criminal act to delete data in order to avoid an FOI request. That’s what the ICO office seems to be referring to in its comments about section 77. Of course, the ICO also says there is a time limit for prosecution of such acts.
As to regards whether it’s a firing offence. I presume that is upto the employer.
The question is whether an employer wants to fire somebody who committed a criminal act while in their employ – even the act can not be criminal act can not be prosecuted because of time limits. Maybe some employers feel comfortable employing people like that. (If I was the employer, I wouldn’t, I think firing for gross misconduct is entirely appropriate in such circumstances).
> And if someone makes an FOI request now for the materials which were deleted, is it an FOI violation if those materials can not be retrieved or the materials were not kept?
You can’t get blood from a stone.
If something doesn’t exist, I very much doubt it can be a criminal act to not deliver it.
I believe that the criminal act is in the original deletion in response to the FOI request (which would have occurred to thwart provision of the information), rather than the fact it can be retrieved later.
Richard C: everything you say is true, and of course because of the absurdly short time limitation, which the IOC points out should be addressed, there will be no legal finding of guilt. However the IOC is clearly not satisfied that UEA should hide behind this legalistic interpretation of “prima facie” and makes the point that “It is hard to imagine more cogent prima facie evidence”.
While in the strictest possible terms, a man is innocent until proven guilty, this remark, and the complete absence of any attempt at rebuttal by the UEA, entitle the public, and MPs, to assume for all practical purposes that an offence has taken place. I normally try to resist argument by analogy, but if I see a man stab someone to death, and the police fail to arrest him, it is very foolish of me to presume his innocence because he has not been convicted. It could be me next, with Grant Foster cheering from the sidelines!
Nothing surprises me about the workings of the corrupt political classes in the UK.
However, I am surprised by the legal interpretation of the FOI act, as I had to evaluate data handling processes at a major government department, as part of my job. This included the processes associated with responding to FOI requests.
In this department, the absolute rule was that all requests had to be responded to within 30 days of receipt. Any failures to meet this deadline had to be investigated and reported on (from memory this included sending a report to the ICO).
So, I am bemused by this 6 month deadline which has appeared in the case of the CRU requests.
I have made a complaint to the ICO about information that they may have given to UEA to avoid FOI requests. I copy the reply, below.
I am, quite frankly, not impressed and have sent the ICO a FOI request for all correspondence they have had with CRU.
Dear Dr Keiller
I am responding to the enquiry that you made regarding what advice may have been provided by the ICO to the University of East Anglia in relation to its handling of requests for information related to its Climatic Research Unit. This has been looked into and I have outlined below the ICO’s view on this matter.
One of the emails exchanged between IPCC authors and related parties placed in the public domain contains the following sentence:
Keith and Tim are still getting Freedom Of Information (FOI) requests, as are the Meteorological Office Hadley Centre and the University of Reading. All our FOI officers have been in discussions and are now using the same exceptions not to respond-advice they got from the Information Commissioner.
Viewed in isolation, this sentence may have created the false impression that the ICO provided advice to the University of East Anglia encouraging it to withhold information.
The Commissioner does not accept this view and wants to stress that such action would be in direct conflict with the vision, aims, and values of the ICO and would undermine his role as statutory regulator. The ICO would not, in any circumstances, encourage an authority to avoid compliance with the law. To do so would undermine the Commissioner’s role as an impartial regulator and compromise his duty to support the presumption of disclosure implicit within Freedom of Information (FOI) Act and Environmental Information Regulations (EIR).
Both FOI and EIR assume a default position of disclosure in response to requests made to public authorities, and this presumption is the default position adopted by the Commissioner in responding to enquiries and considering complaints. It underpins all of the Commissioner’s work in relation to FOI and EIR and his officer’s would not provide advice encouraging an authority to avoid compliance with the legislation.
It is unclear what the ‘advice’ noted in the email consisted of, or indeed whether the use of exemptions being proposed resulted from contact with the ICO’s staff or interpretation of the ICO’s existing guidance. The Commissioner has a statutory duty to disseminate advice and guidance on the operation of FOI and the EIR. This takes the form of guidance documents, responses to written queries, and telephone contacts (usually through his help line).
Although the Commissioner’s Officers seek to address enquiries as satisfactorily as possible, they only provide general and impartial advice. When responding to queries the ICO gives high level, non-specific guidance on how an authority might consider approaching a request. This can involve directing them to published good practice guidance or to relevant ICO Decision Notices or the findings of the First-Tier Tribunal. The ICO deliberately provides this advice at a general level to minimise the possibility of being drawn into specific discussions about individual requests, as the ICO may subsequently be required to adjudicate on a related complaint.
The written queries are recorded on the ICO’s electronic case management system. Telephone enquiries are more numerous, with over 2,000 per week, and given their volume it is not practical to record the content of each (assuming that the caller consented to identify themselves, which they are under no obligation to do). The ICO has checked its records and can trace two examples of written advice provided to UEA which predate the email in question, but these were on unrelated topics with no bearing on the climate-data issue. If the University had sought verbal advice before then, the ICO would only have provided general advice, and certainly would not have explicitly supported or endorsed the use of a particular exemption or exception.
I hope that this goes someway to explaining the ICO’s position and provides some reassurance on this matter.
I hope to be able to provide you with a response to your other query regarding time limits for criminal prosecutions under the Freedom of Information Act shortly.
Yours sincerely
XXXXXXX
Senior Complaints Officer
FOI Team 1