I decided to make this a sticky top post for a day or two – it needs wide circulation. New posts will appear below this one. – Anthony
Playing email hidey-ho in Hansenland to circumvent FOI laws
Guest post by Chris Horner
That political appointees and career activists in government would use private computers is in keeping with tactics I have uncovered as being epidemic in government, and particularly the current administration, and which I detail in The Liberal War on Transparency: Confessions of a Freedom of Information “Criminal” released this week.
These tactics range from the widespread use of private emails, hiding meetings with lobbyists, using “handles” and lobby groups as “cutouts” or go-betweens with pressure groups with whom the administration doesn’t want a paper trail. I even detail the White House arranging for a digital equivalent of a “safe house”, a privately owned and managed computer server on which to quietly conduct discussions about the IPCC presumably away from the taxpayers’ prying eyes.
But I also have an affidavit admitting to an elaborate system established by one activist agency — NASA’s Goddard Institute for Space Studies (GISS) — to view its emails remotely on a non-official computer, purchased with taxpayer money and used for the taxpayer’s business but access to which is being denied the government for inspection, whose use erases any trace of the records back on government servers.
This was provided me by NASA in an ongoing FOIA lawsuit we filed at the Competitive Enterprise Institute to obtain records of Gavin Schmidt, a GISS scientist who was running a third-party activist website promoting an ideological agenda on taxpayer time — at least if you believe the time-stamps, which were then “disappeared” after we pointed this out to NASA. But which we captured nonetheless.
The administration attested to this in federal court in order to defend their failure to provide certain emails to and from Schmidt’s email accounts relating to this activity. Their claim is that, because the emails were written or accessed on this unofficial computer, their system is such that the official emails are beyond the administration’s reach. In fact, the government’s copies are destroyed.
This is their defense.
The affidavit, by GISS’s Associate Chief Larry D. Travis, attests in pertinent part (emphasis added):
Dr. Schmidt uses two separate computers on which he conducts his work for NASA. . . . One computer Dr. Schmidt uses is a laptop computer that is owned by NASA. . . . The other computer is a desktop computer owned by Columbia University. Dr. Schmidt purchased this computer with National Science Foundation grant monies he received while he was an employee of Columbia University, prior to his becoming a civil servant with [NASA]; . . . [T]he [Space Station Program or SSP] contract providing IT support to GISS covers service for this computer. Nevertheless, Dr. Schmidt maintains this computer; SSP does not regularly service Dr. Schmidt’s computer and no SSP contractor has administrative privileges on the computer. Dr. Schmidt’s email correspondence is stored on his Columbia desktop computer [NB: that’s the private one, paid for not by Schmidt but by the taxpayer, to which he does not allow NASA access]. Dr. Schmidt accesses his Columbia University email via an Internet browser on the computer. Dr. Schmidt does not download his Columbia email messages to his computer; rather, they are located on a remote Columbia mail server.
NASA’s boast is that official records can be and are accessed by private computers, which not only corrupts the agency’s ability to properly comply with FOIA, it erodes the agency’s record retention and preservation. Elsewhere in the affidavit NASA states that the computer Schmidt uses is (emphases added):
a desktop . . . which Dr. Schmidt uses to send and receive all of his email from the @giss.nasa.gov, @nasa.gov, @columbia.edu, and @ realclimate.org domains. See Travis Decl. ¶ 18. Dr. Schmidt has never given administrative information technology (“IT”) privileges for either computer to the IT support services contractor that serves Agency personnel. See id. Thus, the email sought here is relayed to and resides on a computer that the Agency does not own, to which the Agency has no right of access, and for which no Agency official or contractor has administrative privileges. Moreover, there is no central mechanism by which GISS IT personnel can obtain access remotely to email sent to or received by a GISS email user; instead, the only way to reach such email would be via directly accessing the hard drive of the computer on which the user accessed his or her GISS email. See id. at ¶ 12b.
Which hard drive, you will note, is on a computer to which the government (taxpayer) has no access but for which the government (taxpayer paid). And pays to service. Even if it isn’t permitted to. Had this been the government computer, well, then email traces — in the event a record is destroyed, which we know that would never happen, there are laws….stay tuned — could be reconstructed.
But GISS is using private computers, it seems, for this public service, denying the public access to the legally required record of its activities.
NASA might explain how it is not hereby knowingly sanctioning a corruption of responsibilities to create, retain, and preserve documents, both for the Federal Records Act and for FOIA. This ain’t rocket science. But we do know it is with NASA’s sanction.
However, as Dr. Travis explains, even with respect to the emails from the @giss.nasa.gov and @nasa.gov domains, these have not been integrated into an agency record system or file.
Once a[n agency] employee accesses his or her [agency] email via his or her personal computer, those emails are no longer located on any server at [the agency]; in other words, the act of accessing a specific email deletes that email from the ‘spool’ on the server. [The agency] does not currently have (nor has it had in the past) a centralized backup of [agency] email traffic.” Id. at ¶ 12b. Moreover, even if the Agency did have a centralized backup of emails from the @giss.nasa. gov or @nasa.gov domains, emails sent or received by Dr. Schmidt pertaining to his work on the RealClimate blog would not be integrated into an Agency records system or file. . . .
Traces of the records are only on the computer the employee uses to access them. Which, at great pains, is not a government computer or one to which the government is being permitted access.
In this affidavit, NASA’s point was that its own system has gotten so far out of their control that an entire class of records cannot possibly be deemed “agency records” and so they have no obligation to search for or release them because the truth is while they may relate to official business, well, their employee won’t let them see them. And as is inherent in the system, the approved process destroys the government’s copies.
One could not hope to find a more explicit acknowledgment—or, more accurately, series of admissions, enthusiastically volunteered in an effort to get out of one frying pan (producing emails the employee wants to keep to himself) into an apparently bigger fire—that employees use unofficial computers for official duties and keep the records accessed on these computers away from the prying taxpayer eyes, skirting FOIA and, it seems other laws. They even use them to access official email accounts in a way that destroys the record.
As we have already been forced to argue to the Obama White House regarding the IPCC “safe house”, and have already filed an action to argue in court, conducting public business on private accounts or computers doesn’t make the business, and therefore the records, any less public. This particular example is simply an extreme case of flaunting disregard for this principle, particularly given NASA’s brazenness of sanctioning it and invoking the abusive practices as an expedient excuse to not turn over records produced on taxpayer time and resources.
Christopher C. Horner is a Washington, DC attorney and author of the newly released The Liberal War on Transparency: Confessions of a Freedom of Information “Criminal” (Threshold Editions).
Not a dumb question at all. But you’re used to a corporate email environment where data retention for purposes of litigation preparedness is a normal way of life. Also, from your comment about using OWA, your corporate email server is Microsoft Exchange. Exchange does retain a copy of all emails that pass through it.
In the legal response to the FOIA request, they specifically state:
I suspect that the email server GISS has set up and is using is some flavor of *nix which acts only as an email relay. There is no retention of email or attachments once a client connects and retrieves the email. Recovery of any non-deleted email and attachments would require doing a an examination (perhaps a digital forensic examination) of the user’s actual client computer hard drive(s).
@mod: Gav is certainly still affiliated with Columbia
So what? Mail he receives via @*.*.gov has passed through government computer infrastructure and is therefore a government document, not personal.
Think of the sender in this equation. A person who sends to an @nasa.gov address should expect the email to be part of the public document database and have no possibility of it being “lost” by the addressee.
Using a *.gov email address for personal correspondence is at best an improper convenience. It is a slippery slope from improper convenience to misrepresentation to deception and only weasel words away from outright fraud.
fraud (def):an intentional deception made for personal gain or to damage another individual;
charles the moderator says:
October 4, 2012 at 10:35 pm
Ok, I’ve spammed up this thread enough quoting regulations. Here’s one more link with general email retention policies.
http://www.archives.gov/about/regulations/part-1236.html#partc
CTM,
Thanks for posting the relavent regulations and laws governing record retention!
MtK
GISS => email amateurs . . . cloaked for FOI discovery mode?
CEI => uncloakers extraordinaire
John
Blade says:
“Anthony, perhaps you can invite Gavin to reply here and assure us he follows regulations strictly to the letter of the law with no excursions or slip-ups whatsoever. Sure, he might decline, but then you get to update the article with ‘Gavin refused to answer questions here’.”
I second this excellent request! Where there’s smoke, there’s likely fire, and it seems there’s enough smoke from this to cool the planet! As MarkW says: “If there is nothing to hide, why work so hard to hide it?” It’s no wonder the general public is becoming increasingly skeptical of Climate Science.
Anthony, I think “Bonfire of the GISS Vanities” is a poor choice for a title. I get it as a very in joke. For the passer by, however, “who is GISS and why should I care? ” It isn’t until line 16 that “NASA” is mentioned.
“Bonfire of the Vanities” either the original 1497 event or the Tom Wolfe refer to destruction of valuable things and reputations by a mob.
Who is destroying what here? The “mob” (that’s us) wants to retain documents. We want NASA to follow established proceedures, not circumvent them.
Maybe the subtitle can be improved:
NASA GISS email retention policies non-compliant for 4+ years as a reason to circumvent FOI laws.
The AIG report and the affidavit together establish that much, don’t they?
The reason why it is necessary to resist freedom of information requests is science is not on the side of the extreme AGW paradigm pushers. If science has on the side of RealClimate and the IPCC it would not be necessary to hide correspondence concerning their work.
There are three problems:
(1) There is an effort to hide the fact that observations and analysis in peer review journals does not support the extreme warming paradigm, that plants eat CO2, that greenhouses inject CO2 into the greenhouse to increase yield and reduce growing times, that the planet resists warming (negative feedback) rather than amplifies warming (positive feedback). There is an effort to hide the fact the amount of observed warming does not support the extreme warming mania. See below for details.
(2) There is an effort to connect every extreme weather event: Hot, Cold, High precipitation, High wind, and Drought with warming to justify spending money on green scams. Independent scientific analysis and observations do not support the assertion that extreme weather events have increased.
(3) There is almost no media coverage of the scandalous waste of money on “green” energy scams. (i.e. The Liberal media do not want to be accused of being a `denier`. The mania is fed and supported by that concern.)
Observations, logic, and analysis in peer reviewed journals are on the side of the so called “skeptics”. There is no extreme AGW problem to solve. Satellite analysis of top of the atmosphere radiation vs ocean surface temperature indicates planetary cloud cover in the tropics increases or decreases reflecting more or less radiation off into space thereby resisting warming (negative feedback). The IPCC general circulation models assume the planet amplifies CO2 warming (positive feedback) to create their high warming predicts. Data and analysis (for example the amount of warming current observed, plateau of warming, the lack of warming in the ocean, the increase in short wave radiation reflected off into space, and so on) in peer reviewed journals indicates that assumption is incorrect. As the planet resist warming (negative feedback) as opposed to amplifies warming a doubling atmospheric CO2 will result in less than 1C warming with most of the warming occurring at high latitudes which will expand the biosphere. I would recommend a read through Joanne Nova’s summary of some of the observations and technical paper that supports the so called “skeptics” position.
http://joannenova.com.au/2012/10/man-made-global-warming-disproved/
Observations show major flaws
1. The missing heat is not in the ocean 8 – 14
2. Satellites show a warmer Earth is releasing extra energy to space 15 -17
3. The models get core assumptions wrong – the hot spot is missing 22 – 26, 28 – 31
4. Clouds cool the planet as it warms 38 – 56
5. The models are wrong on a local, regional, or continental scale. 63- 64
6. Eight different methods suggest a climate sensitivity of 0.4°C 66
7. Has CO2 warmed the planet at all in the last 50 years? It’s harder to tell than you think. 70
8. Even if we assume it’s warmed since 1979, and assume that it was all CO2, if so, feedbacks are zero — disaster averted. 71
9. It was as warm or warmer 1000 years ago. Models can’t explain that. It wasn’t CO2. (See also failures of hockey sticks) The models can’t predict past episodes of warming, so why would they predict future ones?
http://www.climatechangefacts.info/ClimateChangeDocuments/LandseaResignationLetterFromIPCC.htm
“After some prolonged deliberation, I have decided to withdraw from participating in the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (IPCC). I am withdrawing because I have come to view the part of the IPCC to which my expertise is relevant as having become politicized. In addition, when I have raised my concerns to the IPCC leadership, their response was simply to dismiss my concerns…. Shortly after Dr. Trenberth requested that I draft the Atlantic hurricane section for the AR4’s Observations chapter, Dr. Trenberth participated in a press conference organized by scientists at Harvard on the topic “Experts to warn global warming likely to continue spurring more outbreaks of intense hurricane activity” along with other media interviews on the topic. The result of this media interaction was widespread coverage that directly connected the very busy 2004 Atlantic hurricane season as being caused by anthropogenic greenhouse gas warming occurring today. Listening to and reading transcripts of this press conference and media interviews, it is apparent that Dr. Trenberth was being accurately quoted and summarized in such statements and was not being misrepresented in the media. These media sessions have potential to result in a widespread perception that global warming has made recent hurricane activity much more severe. …. ….Moreover, the evidence is quite strong and supported by the most recent credible studies that any impact in the future from global warming upon hurricane will likely be quite small. The latest results from the Geophysical Fluid Dynamics Laboratory (Knutson and Tuleya, Journal of Climate, 2004) suggest that by around 2080, hurricanes may have winds and rainfall about 5% more intense than today. It has been proposed that even this tiny change may be an exaggeration as to what may happen by the end of the 21st Century (Michaels, Knappenberger, and Landsea, Journal of Climate, 2005, submitted)…. ….It is beyond me why my colleagues would utilize the media to push an unsupported agenda that recent hurricane activity has been due to global warming. Given Dr. Trenberth’s role as the IPCC’s Lead Author responsible for preparing the text on hurricanes, his public statements so far outside of current scientific understanding led me to concern that it would be very difficult for the IPCC process to proceed objectively with regards to the assessment on hurricane activity.
The extreme AGW issue is a mania with no basis in fact.
http://www.drroyspencer.com/wp-content/uploads/UAH_LT_1979_thru_Aug_2012.png
http://www.forbes.com/sites/warrenmeyer/2012/02/09/understanding-the-global-warming-debate/
Another approach is to subpoena the suspects before a Congressional subcommitte to provide requested evideence under oath. When the suspects refuse to deliver true evidence, they may be prosecuted for criminal contempt. If the suspects deliver false evidence, they may be prosecuted for perjury. If U.S. Attorney General Eric Holder attempts to forestall prosecution, he and the Obama Administration may face another Fast andFurious type scandal and its consequences.
As a long term NASA contractor I can tell you Dr Schmidt is violating a lot of NASA rules and ITSec policies. He cannot be collecting/storing/managing govenment information on a “private” computer willy-nilly. He has responsibility to record and protect all data. Government data runs the gamut from personal, to proprietary, to procurement sensitive, to ITAR/EAR. Schmidt needs to demonstrate he has taken the proper precautions to protect NASA, GISS and Columbia data.
This would give just about anyone who needed, reason to audit his system. When they do they will find he is woefully out of ITSec compliance and has been for many years. Which in turn will initiate the next step: what data did he have that could have been compromised.
Schmidt and NASA have used the dumbest excuse they could think of to try and keep this machine off limits. Since it is an unmaintained machine over which all NASA email traffic (with attachments that will fall into all the categories listed above) has run it is now a huge data protection risk. Personnel resumes, proprietary science and industry data, specifications on science instruments – all of this must be protected.
Clearly Schmidt has some ‘splainin to do.
I am confident that the media will become VERY interested in use of private computers for official business in the Executive branch on January 21st.
Let’s see…..sneaky, deceptive behavior, check
elaborate efforts to avoid accountability, check.
deflection of inquiries by accusation, check.
This looks like a duck, waddles like a duck, and quacks like a duck.
Most transparent administration.
I guess what they meant is that they will make everything disappear.
So when are they going to address Gavin using a personal computer and personal email at work and during work hours? I wonder how he accesses the internet as well. Gov’t agencies typically don’t allow employees to use their personal computers to access their internet/bandwidth, nor connect to their networks to access files.
Having worked in gov’t before, I’d have been fired if I’d been doing any of this for days, let alone years!
Numerous flagrant violations of regulations, laws, and sound govt practice.
In an era when NASA’s budget is under severe pressure, they must be made to feel the heat at the top, immediately, now. Congressmen looking hard at NASA condoning and facilitating such outrageous misbehavior….. This should go way beyond GISS or Schmidt, make top officials at NASA and above NASA answer for this kind of misconduct! As soon as NASA has to start answering hard questions at House and Senate committees, that’s when pressures will be felt from the WH on down. GISS clowns will discover they are quite expendable when the WH is facing pressures of an election year.
One problem is that Congress is on a long recess, but that does not mean a Rep. or Senator could not announce interest in an inquiry, schedule hearings etc. There are ways to get it into the news even when Congress is not in session. Especially with elections looming…..
David Jay says:
October 5, 2012 at 9:16 am
I am confident that the media will become VERY interested in use of private computers for official business in the Executive branch on January 21st.
_________________
50/50 chance?
Where is Law Enforcement when you need them?
There is, of course, the issue of Schmidt’s (and others?) work-related e-mails and other official communications not being properly secured, and scientific openness being evaded for distinctly political purposes. That could have lots of implications, both for the integrity of science, as well as for the integrity of public sector employees.
But there’s also the issue of Schmidt actually running Real Climate from his office on work time. Does anyone have a record of Gavin’s posting time stamps, and from those, could we make some estimate of how much of his official NASA work day is spent governing his little totalitarian blog empire? If the answer is, a lot, and if this is not part of his official duties (and I hope to God it is not), then does he have his supervisor’s permission to run Real Climate from his official desk? If so, how high up the chain of command does this permission originate? I’m just asking to see how widely terminations might be on tap, once pro-Obama bureaucrats, and Obama and Eric Holder too, are no longer in charge of the work rule violations, and the law breaking aspects of this BS behavior by those who, in the end, are employees of the American taxpayers.
This is so contrived as to be absurd. Were a private company to take such steps to avoid scrutiny by say the IRS, or a criminal investigation, there would be senior execs sitting in jails pronto. Several commenters have already alluded to the risk factors that such a system exposes NASA to in terms of potential to lose important data and documents. There’s two other observations I think worth noting:
1. This removes the ability of NASA to defend themselves against fraudulent attacks. Suppose for a moment that a wrongful dismissal case or a sexual harrasment case were brought against NASA and the accuser presented email correspondence with Gavin to substantiate their claim. With no record of the email of their own to rely on, NASA would have no way to determine if the emails presented were genuine or not.
2. Compliance law is ugly complex, but at day’s end, there are two driving factors that determine how long any given email (or any other document) must be kept. The first is for regulatory compliance. If the law says that financial records must be kept for 7 years, then they must be kept for seven years, period. An amazing amount of information that comprises part of the financial records of an organization (receiving quotes, sending purchase orders, making changes to contracts, etc) is in fact, contained in emails. For that specific reason, deleting ALL the email of ANY given user automatically is pretty much a violation of compliance law since any data that falls into that category (financial information is only one example, there are other types of data that must also be retained) is deleted when it should be retained. The other driving factor is the organization’s data retention policy, which can in fact be as simple as “we delete everything daily except as required by law”. What NASA appears to be arguing here is that is in fact their data retention policy as it applies to Gavin, and that nothing in his correspondence is required to be preserved by law (ie no financial data such as quotes, purchase orders, contracts, etc). There have been several rather interesting court cases setting precedent around compliance law, including a $1.3 Billion judgment against a stock brokerage for saying they had deleted all email older than a certain date and it coming to light that they had (inadvertantly) not done so. Note that the judgment had nothing to do with what was in the emails they said they deleted, the judgment was enitrely based on them saying that the deleted something and it turned out they hadn’t. So not meeting your own data retention policy is very serious in the court’s eyes. My reading of the precedents already set in terms of compliance law is that if it should turn out that NASA’s retention policy that they are relying upon to protect Gavin’s emails is a “special” retention policy just for him, is that the courts would throw that out in a heart beat. If NASA’s data retention policy as stated for Gavin (deleting email automatically upon client download) is in place for the organization in general, then they’re in even deeper caca because there is no way that across that organization they are not deleting email which the law requires them to keep.
mods – hidey hile, TIA
darn thing hates me recently
I have written a parody press release to be used in the not too distant future:
*** ‘Match-Pump’ science is where you invent research out of flawed statistics that creates a bonfire of alarmism, then you provide a highly profitable government subsidized solution (pump) to put gasoline on the original flame of false alarmism.
****** Apologies to Clint Eastwood for using a line by the Captain Redlegs character in his movie “The Outlaw Josey Wales”.
John
You would almost think that this is a deliberate attempt to conceal correspondence, operate outside of the law and act like criminals.
But these are just honest scientists trying their best to save the world and all the little children and puppy dogs and fluffy kittens from the eeeeeeeevil Glowball Warming thingy.
So we should have no reason to doubt their motives and we should continue to allow them to devise public policies that determine the spending allocations for hundreds of $$$Billions of dollars. Because we know they are trustworthy.
Right?
“I guess what I’m saying is that the article seems to view the fact that GISS no longer runs its own email servers in an unduly sinister light. The implication is made that the only reason anyone could have for doing this kind of thing is to be able to hide from FOI requests.”
And whether they maintain the servers or not, GISS emails must be accessible via FOI. It’s the information that must be free. No one gives a damn about the hardware.
If he’s sending nasa.gov emails from his columbia computer, then the government needs to have an arrangement where they can tap those emails at will. If that hasn’t happened, then NASA isn’t complying with the act.
“In the legal response to the FOIA request, they specifically state:
“Once a[n agency] employee accesses his or her [agency] email via his or her personal computer, those emails are no longer located on any server at [the agency]; in other words, the act of accessing a specific email deletes that email from the ‘spool’ on the server. “
”
Which is utter BS, because the agency is obligated to keep copies around. They will be in backups, if not in the active “spool.”
An analogy comes to my mind : if you work for a business and they suspect you (rightly or wrongly) of antitrust wrongdoing, they’ll just raid your house, and take you PC, and raid your private email accounts. Period.
Double standards.
It’s very hard to believe that a public agency leaves the retention of written communication records (that’s what emails are) at the sole discretion of each employee and the lottery of hard-drive longevity. It’s as if t he only future need they ever envision for those records are FOIA requests. There is no difference between this and the systematic shredding of written communications.
Even most private companies retain employee emails in case they need them for possible litigation events in the future, including legal processes between employer and employee.
It’s just not credible that a Federal agency like NASA is deleting those records. And if they are doing that, it certainly has to be illegal. Maybe Congress should look into this. Maybe they are counting nobody will look into it. But I really don’t believe for a second they leave email retention at the discretion of each employee. It doesn’t make sense. it’s not credible.