NASA GISS being sued over FOIA failures

click for the full legal brief - PDF

CEI’s Chris Horner sends word of this development, via The American Spectator:

Last night the Competitive Enterprise Institute, through its outside counsel Gibson Dunn, filed its brief arguing against NASA’s rather scattershot and contradictory effort to dismiss our lawsuit requesting certain documents under the Freedom of Information Act (FOIA)(press release available here).

Our suit, CEI vs. NASA (U.S. District Court for the District of Columbia), followed on the heels of ClimateGate, and a December 2009 Notice of Intent to Sue if NASA did not turn over certain records withheld since CEI sought them in August 2007 and January 2008 requests. That Notice was eleven months ago and, despite NASA offering some documents and admitting — temporarily — that certain others relating to the advocacy site used by NASA scientists, RealClimate.org were “agency records”, NASA then ceased its brief steps to comply with the transparency statute FOIA.

Despite NASA stonewalling CEI has already learned, for example, that NASA does not, contrary to widespread media and pressure group claims, have an independent temperature data set. Instead, as NASA told USA Today in an email, despite its serial, breathless press releases trumpeting some new temperature high, it actually is just a modeling office, which also (for unknown reasons, possibly extra attention and importance, or mere advocacy)  cobbles together some US data from the National Climatic Data Center (NCDC) with that of the Climatic Research Unit’s temperature history. You may recall how CRU withdrew its claim to a temperature history data set after ClimateGate led to an admission it actually lost its data.

Specifically, CEI’s FOIA suit seeks documents and emails relating to NASA’s temperature record, which NASA was forced to correct in response to criticism from a leading climate watchdog, Steve McIntyre.  Those corrections destroyed NASA’s stance that U.S. temperatures have been steadily rising in recent years and returned 1934, not 1998, to being the warmest year on record. NASA refuses to give CEI the computer file they used to make these changes, whose title includes “Steve” and “alternate cleaning.”

CEI also seeks emails from NASA scientists using Real Climate.org on official time using official resources, often to advance what NASA’s Goddard Institute for Space Studies (its climate activist office) has decided is appropriate public advocacy.

In addition to uncovering the “Steve”/”cleaning” file, a few of the more interesting pieces of evidence expounded upon in CEI’s brief include:

Read the rest at The American Spectator

From the press release:

A few compelling questions and pieces of information:

  • Why did NASA delete timestamps off the [realclimate.org] website? After CEI filed the FOIA seeking RealClimate emails, administrators at Real Climate deleted all timestamps on all of their postings, making it impossible to show they were made during work hours.
  • NASA admits that it discovered 3,500 emails on the computer used by Dr. Gavin Schmidt, a taxpayer-funded NASA researcher who spends working hours running and writing for RealClimate. But NASA refuses to produce the emails.
  • Why did NASA delay? NASA did not ask Dr. Schmidt to look for responsive records until 22 months after we sent them the FOIA and threatened to sue. It is highly likely relevant emails were destroyed during this period.
  • Furthermore, NASA took more than 900 days to produce documents pursuant to CEI’s two 2007 requests. The agency took more than 700 days to produce records in response to CEI’s 2008 request. NASA does not explain these delays. FOIA requires that an agency produce responsive records within 20 days. Although agencies rarely meet that deadline, even for “complex” FOIA requests, NASA’s average processing time is under 100 days. In 2008, NASA processed complex requests in 82 days, on average. In 2009, it processed such requests in 89 days, on average.

CEI is represented by Andrew S. Tulumello of Gibson Dunn, which is handling the lawsuit pro bono.

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Shevva

When you’ve tried to be a gentleman and point out mistakes to a group of people and they threatened blowing you up with a large red button, maybe its time to play by there rules and drag them to court where lying and fiddling of figures is not allowed.
I wondering if a judge will be as defensive of billions of dollars of tax payer grants?

geoff

CEI is leading the way again. Good job! Hold NASA accountable and don’t let up.

bubbagyro

It will be interesting to link the Mike Mann information and emails ensconced in the GISS information sets. This could be in furtherance of Cuccinelli’s lawsuit in VA.

Dr T G Watkins

As I have commented on several occasions, I believe the US legal system is the only way that the AGW nonsense will be brought to an end. I think many of the main protagonists on both sides of the pond, all those who have been funded by American taxpayers, will be less than comfortable under the cold eye of the Law with full disclosure of all research , data, codes, e-mails etc.
Several other cases in the pipeline, I believe.

Fred

Gavin should be made to refund his salary and pension contributions for all the time he was paid but not doing his real job.
Freelancing at Real Climate can be be a hobby for Gavin but it is not what he was hired or paid to do.
Gavin owes the taxpayers a refund.

John Peter

I am all for this although I reside in United Kingdom. I wonder about the timing. Could this be a consequence of the Republicans gaining a majority in The House of Representatives? I understand there will be hearings now into GISS and the other US publicly owned organisations. This could be part of an interesting pincer movement. Good military tactics. Surround them and destroy them. All I really want from them and their UK pals is honesty.

Mike

I’ll bet he takes work home. And since RealClimate is a non-partisan site for communicating science to the public I don’t see how that is not part of his job. CEI is just tying block information for getting to the public. I think CEI’s tax exempt status should be challenged.
REPLY: Well the go for it Mike, but you’ll have to put your full name on any legal filing. Let us know when you have done so and I’ll post it here. -Anthony

Kitefreak

“Why did NASA delete timestamps off the [realclimate.org] website? After CEI filed the FOIA seeking RealClimate emails, administrators at Real Climate deleted all timestamps on all of their postings, making it impossible to show they were made during work hours.”
————————————-
It is flabbergasting, isn’t it? If you or I carried on like that we’d been in the clink quicker than you could say “I lost the data”.
But I do fear that the people at the top of the legal establishment (judges and the like – especially the supreme and high court varieties) , just like our politicians (near the top), are not exactly free from influence. I am sure intense pressure is sometimes applied.
I applaud these efforts, but if anything comes of this – if anybody ever gets prosecuted in the US or the UK over any of this – I will eat my kite.
I still can’t get my head around the CRU getting off because of the six month limitation clause. What the heck is that all about?

re:
“Why did NASA delete timestamps off the [realclimate.org] website? After CEI filed the FOIA seeking RealClimate emails, administrators at Real Climate deleted all timestamps on all of their postings, making it impossible to show they were made during work hours.”
Presumably the Wayback Machine [and other internet archive sites] made snapshots of the RealClimate web site before the time stamps were deleted.
http://web.archive.org/web/*/http://www.realclimate.org

Global Warmers at least should change this project for making profits by pouring the Empty into the Void for another less offensive to common sense, like straightly dedicating themselves to money counterfeiting, otherwise old fashioned reactions may arise that they may not gladly enjoy…..

P Walker

John Peter ,
IIRC , CEI initiated this lawsuit several months ago , possibly even last year . I think Chris Horner had a post about it here .
REPLY: Yes they started, then GISS threw them a few bones, then stopped, After a long time of waiting, they’ve given up waiting on Gavin et al and moved ahead with the filing. Yet, James Hansen has time to attend protest marches and get himself arrested. Make no mistake, they are stonewalling. It’s deja CRU all over again. – Anthony

Richard Sharpe

John Peter says on November 4, 2010 at 12:40 pm

I am all for this although I reside in United Kingdom. I wonder about the timing. Could this be a consequence of the Republicans gaining a majority in The House of Representatives? I understand there will be hearings now into GISS and the other US publicly owned organisations. This could be part of an interesting pincer movement. Good military tactics. Surround them and destroy them. All I really want from them and their UK pals is honesty.

Well, the hearings wont commence until sometime after January 3 or there abouts, I guess. It might be some time after that the hearings actually start.

I’ve written to Chris Horner on a specific aspect of his lawsuit. I’ve had an encouraging response 😉

You have tried a lot of things: Ponzi schemes, credit cards, hedge funds, collaterals, etc.. for avoiding working, however this thing of selling the air…or rather “CO2 permits” was an exaggeration: You will surely ruin the world!, you will kill the Golden Eggs’ producing Chicken. Ok buddies…it’s time to stop it!

Jeremy

Mike says:
I’ll bet he takes work home. And since RealClimate is a non-partisan site for communicating science to the public I don’t see how that is not part of his job. CEI is just tying block information for getting to the public. I think CEI’s tax exempt status should be challenged.

RealClimate is non partisan? Web browsing is part of his job at NASA? CEI is trying to block information from going public with a lawsuit over FOI compliance?
Obvious troll is obvious.

David Spurgeon

Right – a pincer movement to squeeze out the truth – yes!
Remember what Jefferson said?
“Honesty is the first chapter in the book of wisdom.” – that’s when Presidents and law givers were full of wisdom, I guess.

Jimmy Haigh

” It’s deja CRU all over again. – Anthony”
Groan!!! (Actually, I like it.)

KnR

Intresting times indeed , and removing time stamps , did they really think people were to stupid to work why and to actual keep a copy of these pages before this happend?
Well perhaps , they do seem to capable of amazing levels of arrogance , complete with a total lack of introspective.

Ray

Those guys should wait until the Republicans take back the control of the house before… oh, wait… they just got the control back. Go for the throat guys.

Ammonite

It is very difficult to construct a coherent theory that accounts for the internal dynamics of recent warming in the absence of elevated GHGs. Relative warming of night over day, polar over equatorial, winter over summer, low atmosphere over high atmosphere are all markers of green house gas. In the absence of any credible alternative theory to AGW I guess you just have to play the man rather than the ball…

Tenuc

Colonel Sun says:
November 4, 2010 at 12:50 pm
“re: “Why did NASA delete timestamps off the [realclimate.org] website? After CEI filed the FOIA seeking RealClimate emails, administrators at Real Climate deleted all timestamps on all of their postings, making it impossible to show they were made during work hours.”
Presumably the Wayback Machine [and other internet archive sites] made snapshots of the RealClimate web site before the time stamps were deleted…”

Yep, you can run, but you can’t hide!
Realclimate posts with date/time stamp all the way back to 2004…YES!
http://web.archive.org/web/20041212153304/http://www.realclimate.org/

Schadow

Action on these matters gains importance with the announcement by President Obama that he don’t need no steenkin’ Congress to enact ‘climate-saving’ legislation, threatening instead to employ executive orders to the Environmental Protection Agency to get on with the task of saving the world from the Gas of Life. His threatened actions are reinforced by his increasingly frequent references to ‘ignorance of science’ on the part of the public and the Congress.

GregP

It’s disturbing and sad that US government agencies have to be taken to court to force them to comply with the law let alone get them to just do the right thing.
Par for the course with respect to the EPA (the Greenies’ blunt instrument) but NASA? Really sad…

I may be joining the dots incorrectly, but it appears that those supposedly high-minded and highly principled, selfless public servants around the globe at CRU, NIWA, GiSS etc have been rather less than high-minded and pricipled while on the public’s dime. (I love the ways in which Americans have enriched the English language!)
I agree with Dr TG Watkins; the cleansing power of legal action and court time under oath may be the best way to go, now.
And Mike, you have a strange definition of non-partisan; Realclimate is very clearly extremely partisan and Gavin has little patience with those who disagree with his version of the gospel according to the church of Climatology. If you keep an open mind and remain civil to us climate aetheists/agnostics/Sooners here at WUWT, I am sure that you will still be welcome here!

RockyRoad

So much for the idea that Progressives are good scientists. It took a stern rebuke by thinking/voting Americans to get this whole investigative process going again–with tort reform completely off the table under Obama (a simply reflection of the Trial Lawyers Union conveniently called the “Democratic Party”) and much of the “Stim-you-less” not scheduled to be spent until (again, conveniently) the presidential election in 2012, there was no chance of disinfecting those in power without the light of day.
Going after these guys, even when the outcome seemed anything but certain, reminds me of a phrase from one of my favorite movies The Legend of Bagger Vance wherein a fan shouted “Give ’em hell, Junuh!”

James Sexton

Mike says:
November 4, 2010 at 12:48 pm
“I’ll bet he takes work home. And since RealClimate is a non-partisan site….”
========================================================
Mike, thanks for two things! First, thanks for the chuckle, I needed on today. Secondly, thanks for the re-affirmation that alarmists wouldn’t know reality if it was on the monitor right in front of them.
Thanks again,
James

Eric Anderson

Interesting CEI is represented by Gibson Dunn. For those who aren’t aware, Gibson is an old, prestigious law firm, with formidable capabilities. It would be great if Gibson is doing this pro bono — if not, it will be a very expensive undertaking.
In any event, having Gibson involved would certainly add some gravitas in the corporate context, and would cause any defendent to take things seriously. I can’t comment on whether NASA/GISS gives a hoot; I get the sense that when you’re playing with someone else’s money (taxpayers’ money, that is), there tends to be a bit less concern.

Greg2213

Mike says:
November 4, 2010 at 12:48 pm
…I’ll bet he takes work home. And since RealClimate is a non-partisan site for communicating science to the public …

Thanks for the laugh, I needed that. 🙂

One outrage after another. These alarmists seem to think they can do and control anything they want. Well we have a house of representatives now that might have the fortitude to investigate!

RockyRoad

Ammonite says:
November 4, 2010 at 1:16 pm

It is very difficult to construct a coherent theory that accounts for the internal dynamics of recent warming in the absence of elevated GHGs. Relative warming of night over day, polar over equatorial, winter over summer, low atmosphere over high atmosphere are all markers of green house gas. In the absence of any credible alternative theory to AGW I guess you just have to play the man rather than the ball…

I’d say essentially impossible if there’s no way to confirm what they’re telling you is the truth.

Dan in California

Here’s a link to CEI’s web page accepting contributions. I’m throwing them a few bucks.
http://cei.org/support-cei

KnR says:
November 4, 2010 at 1:09 pm (Edit)
Intresting times indeed , and removing time stamps , did they really think people were to stupid to work why and to actual keep a copy of these pages before this happend?
Well perhaps , they do seem to capable of amazing levels of arrogance , complete with a total lack of introspective.

I said a couple of years ago someone ought to be archiving realclimate before the more embarassing posts started disappearing. Someone responded that they were already doing it. Might have been Rick Werme?

Stanislav Lem

It will be very interesting to cross compare the emails with the CRU archive. Might give some idea of the extent to which both are incomplete.

Jimbo

Colonel Sun says:
November 4, 2010 at 12:50 pm
…………..
Presumably the Wayback Machine [and other internet archive sites] made snapshots of the RealClimate web site before the time stamps were deleted.
http://web.archive.org/web/*/http://www.realclimate.org

Here it is with timestamp I think:
http://web.archive.org/web/20080104002912/http://www.realclimate.org/
lots more here:
http://web.archive.org/web/*/http://www.realclimate.org

DCC

Ammonite said: “Relative warming of … polar over equatorial, … low atmosphere over high atmosphere are all markers of green house gas. ”
Er, say again? The models predict tropical tropospheric warming and it hasn’t happened. What else have you conveniently misstated or ignored?

I’ve always thought climate science should be subject to proper peer review! … Peer review is not their cronies on (sur)realclimate.con but my peers in a jury!

Gene Zeien

Ammonite says:
Relative warming of night over day, polar over equatorial, winter over summer

Simple: salt. http://onlinepubs.trb.org/onlinepubs/sr/sr235/017-030.pdf Road salt came into widespread use in the 1950’s. As snow and ice are melted by the application of salt, the local humidity rises. This provides a local buffer against nighttime cooling, provided the wind is fairly calm. Totally useless in Antarctica(so no warming trend there)

glacierman

Fred says:
November 4, 2010 at 12:16 pm
“Freelancing at Real Climate can be be a hobby for Gavin but it is not what he was hired or paid to do.”
Fred, don’t be so sure that that is not exactly what he was paid to do. Maybe not by the taxpayers, but maybe with the approval and encouragement of certain supervisors. Realclimate was and is a way to get out propaganda in a way that was supposed to preserve the credibility of the institutions, if done properly. If any management condoned it as part of their marketing campaign, I don’t think HE would have to refund his pay.

Chris Horner, CEI and Andrew S. Tulumello of Gibson Dunn (who is doing this pro bono) are major heroes for taking this battle to the Courts. I salute them and await further developments.

u.k.(us)

From:
http://articles.latimes.com/2010/mar/21/nation/la-na-ticket21-2010mar21
March 21, 2010|By Andrew Malcolm
The Democratic administration of Barack Obama, who denounced his predecessor, George W. Bush, as the most secretive in history, is now denying more Freedom of Information Act requests than the Republican did.
Transparency and openness were so important to the new president that on his first full day in office, he dispatched a much-publicized memo saying: “All agencies should adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA, and to usher in a new era of open government. The presumption of disclosure should be applied to all decisions involving FOIA.”
Also this:
On March 16 to mark annual Sunshine Week, designed to promote openness in government, Obama applauded himself by issuing a statement:
“As Sunshine Week begins, I want to applaud everyone who has worked to increase transparency in government and recommit my administration to be the most open and transparent ever.”
===========
It appears it was rather cloudy during Sunshine Week.

John from CA

It also looks like Michael Mann is pushing back in the face of Cuccinelli’s 2nd law suit.
Professional climate change deniers’ crusade continues
02 November 2010 by Michael Mann
http://www.newscientist.com/article/mg20827840.100-professional-climate-change-deniers-crusade-continues.html
“Cuccinelli’s actions also underscore the remarkable disconnect between the rhetoric of climate change denialism and reality. While professional climate change deniers continue their crusade against climate science, this year is likely to go down as either the warmest or the second warmest on record.”

gallopingcamel

Let’s hope the CEI manages to nail Gavin’s feet to the floor. One suspects that he has been a political activist during his working hours (funded by taxpayers). That has to be an indictable offense.
Why else would GISS have deleted all those time stamps?

Tenuc says:
November 4, 2010 at 1:25 pm
“Colonel Sun says:
November 4, 2010 at 12:50 pm
“re: “Why did NASA delete timestamps off the [realclimate.org] website? After CEI filed the FOIA seeking RealClimate emails, administrators at Real Climate deleted all timestamps on all of their postings, making it impossible to show they were made during work hours.”
Presumably the Wayback Machine [and other internet archive sites] made snapshots of the RealClimate web site before the time stamps were deleted…”
Yep, you can run, but you can’t hide!
Realclimate posts with date/time stamp all the way back to 2004…YES!
http://web.archive.org/web/20041212153304/http://www.realclimate.org/
To have deleted the time stamps is far worse than to have left them. As deleting them suggests that the people involved knew that what they were doing, running an advocacy site on NASA [ie., taxpayer] time and money, was wrong and then amateurishly tried to cover their tracks.
The word amateur seems to figure prominently with the CRU/GISS crew.
The golden rule of the internet: if you post anything, assume that there will be a record somewhere and that it will be found and brought to light by someone.

Henry chance

I posted comments about this before the day of climate gate. I knew gavin was on the clock and he was blogging during the day.
The next point is a trap. I also mentioned this trap. it is stupid funny he (gavin) has time to blog and censure posts but has no time to compile responses to FOI requests.
Same with Hansen. He was time to stalk coal mines but can sit in a chair and ask a tech to respond to FOI requests. It is just harrassment!!!

jason

” And since RealClimate is a non-partisan site for communicating science to the public ”
Mike, are you serious? You are an advocate for the advocates.
OT – documentary now on uk channel4 about what the green movement got wrong. Still toes the line that climate change is happening and is massive.
Interesting idea though that it is the work of the greens opposing nuclear power has contributed to more coal being burned.
So if climate change is down to co2 its their fault!

Nullius in Verba

“In the absence of any credible alternative theory to” the fallacy of argumentum ad ignorantiam?

Instead of a civil case it should be a case of treason against its country, as the purpose of this climate change scam it is, as Lord Monckton said, Global Governance, and this means helping a foreign organization (the UN) to achieve its goal of governing upon one’s own homeland, and that can’t be called by any other names but treason.

jason

Schmidt is at the eye of the storm. I bet him and hanson have sore fingers from hitting that delete key
As for real climate, it is so obviously run with the blessing of giss, it is part of the machine.
Personally I think they are toast, which is of course ironic as that’s what they gleefully discuss happening to all of us..

DJ Meredith

On March 15, May 11, July 15, Aug 28, and Nov 16 2009 NASA launched the Space Shuttle.
On Feb 8, April 5, and May 14, 2010, NASA launched the Space Shuttle.
…But within those 2 years they couldn’t mail some papers.
They’ll launch Discovery tomorrow at 3pm.