cc: "Mcgarvie Michael Mr \(ACAD\)" date: Mon, 14 Jul 2008 10:25:17 +0100 from: Keith Briffa subject: Re: FW: Freedom of Information request (FOI_08-23) - Appeal to: Tim Osborn ,Phil Jones , "Palmer Dave Mr \(LIB\)" Dave and others we discussed these points here last week , so not surprisingly we have a general consensus here - to be clear : The first two arguements (and hence the letter as it stands) adequately represent my opinion and I am happy for this to stand as our response. Like Phil and Tim , I would be loathe to see UEA arguing that we (Tim, Phil,myself and other IPCC contributors) were acting in a personal capacity. Indeed , if this ever comes to the courts , I would hope UEA would support us with legal representation. While I believe UEA should not be in any way responsible for our academic opinions , it should take responsibility for our right to academic freedom. This is why I am arguing that we (UEA and authors) should not release our emails - regardless of whether they are held at UEA, in principal or in substance. Incidentally . UEA does not hold the very vast majority of mine anyway which I copied onto private storage after the completion of the IPCC task. To reiterate Tim's remarks , UEA and ENV does have a great deal of interest in our work for the IPCC , but I consider even though it does not have a direct interest in the detailed correspondence necessitated by this work , it would be unwise to follow this line of argument. At the least it would lead us open to accusations of hypocrisy. Thanks again to all for your continuing efforts. I now hear that John Mitchell is faced with questions to Holland's MP , so no doubt more to come! cheers Keith At 15:24 11/07/2008, Tim Osborn wrote: >Dear Dave, > >many thanks for your emails. Regarding the five possible exemptions: > >(1) I'm certainly happy if Jonathan Colam >supports the original two exemptions (the >confidentiality and the time limit) in his judgement. > >(2) Of the possible three new ones, I think the >exemption s.36 that disclosure would inhibit >free and frank exchange of views etc. really >matches very well how I feel about the whole >issue! This (plus the confidentiality) seem to be the strongest arguments. > >(3) Exemption s.40 about whether the material >contains personal information seems (from my >relative ignorance of these matters!) to be >difficult to support while at the same time >relying on the time limit exemption -- I thought >that the time spent checking all the material >for such personal info and redacting it was a >major component in exceeding the 18 hour >limit. If it is redacted, then surely what's >left is no longer personal? Unless people's >opinions on certain science matters can be >considered "personal"? Anyway, I'll leave this one to the FOIA specialists! > >(4) The possibility of following the Met >Office's lead and claiming that UEA has no >interest in the material and therefore doesn't >actually "hold" it, seems difficult to argue. I >agree with Phil's comments about the evidence >against making this argument. To answer your >direct question to us, "What interest does >UEA/CRU have in the IPCC correspondence and work >that you are doing?" I would say it has great >interest in the outcome of the correspondence >and work. Does this mean that it has an >interest in how we got there? Well I certainly >did not have to get any formal UEA approval for, >or oversight of, what I was doing/writing, so >perhaps you could argue that my actions (and >hence correspondence etc.) were not formally of >interest to UEA, even though UEA are keen to >take credit for the outcome. However, it is >hard to win a public argument along these lines, >even if it could be won legally! So, my feeling >is to steer clear of this. But again, I'm happy >to leave it to FOIA specialists. > >Thanks again, > >Tim > >At 10:54 11/07/2008, Phil Jones wrote: > >> Dave et al, >> One minor comment on the letter, then some thoughts on the >> stance the Met Office might be or are taking. >> First, there is an extra 'be' on the 6th >> line of the para beginning 'Further,..' >> >> Now the issue of the specific functions of the Met Office. This argument >> would also apply to UEA and to CRU/ENV, probably more so, as UEA >> is more independent (of government) than the >> Met Office. I say this as DEFRA >> fund the Met Office to the tune of about £18M per year. I am on the Hadley >> Centre's Scientific Review Group and have >> reviewed the DEFRA proposal. Throughout >> the documents I get for the annual Review Group meetings and in >> the proposal, there is a constant thread of how the work they are doing is >> essential for IPCC. How this works though is >> that their scientists (just like us) >> write papers for the peer-review literature, >> and these get referred to in the >> IPCC Reports. DEFRA expects that their scientists will be involved in the >> IPCC Chapter writing. DEFRA has also funded the Met Office to run the >> Technical Support Unit of Working Group 2 of IPCC. >> >> So, although IPCC work may not be a specific function of the Met Office, >> it is very much expected by DEFRA that they are heavily involved in IPCC. >> The Met Office and its Hadley Centre are happy to accept the kudos >> IPCC gets - especially the Nobel Peace Prize award in 2007 for IPCC itself. >> At least two people from the Met Office were at the award ceremony in Oslo >> - and only 25 in total were allowed to go. >> >> If the Met Office can or are using this >> argument, then UEA could as well. >> Whether we should is another matter. Individual scientists at UEA are free >> to get involved in IPCC writing teams, and from the VC downwards (through >> the Dean of Science and the Head of School in ENV) would expect us >> to get involved. It is not written in any job description, but it is one of >> the unwritten expected things academics ought to do. Keith and I use >> the involvement when we write letters each to the ENV promotion >> committee to get a pay increment, as I expect all the others in ENV >> who have been involved in IPCC do. UEA also takes the kudos from the >> report coming out and many in ENV have nice certificates recording the >> Nobel Peace prize award last year. Involvement in IPCC and the Nobel >> Peace Prize features strongly in the ENV Annual Report. Like the >> Met Office we also use the IPCC involvement when writing proposals. >> >> We're not paid to do IPCC, just like the Met Office scientists. We're >> paid expenses (by DEFRA) to go to the meetings and write the reports. >> Keith and I did much of this at weekends and evenings, but much also >> during work time and we used UEA resources to print out drafts. The work >> took time and we are paid by UEA, so UEA did subsidize us to do it. >> >> I have to admit that I like the argument, but would appreciate Michael's >> views and also Jonathan's as to whether we should. It might be worth >> discussing it with the Dean of Science of the HoS in ENV, as it could >> be construed by many to be a very odd >> argument to make. It certainly would close >> the door on this request, and set a precedent for any further requests when >> the next IPCC report comes along in 5-6 years >> time. Holland's requests are certainly >> different from those that came last year. >> >> If we do use this argument, then it ought to go where you say - after >> the re-assertion. >> >> A quick look at the Climate Audit web site >> would indicate that the Met Office >> have yet to respond in this way, but they may not have used such clear >> language (the blue) in your email. If we both respond in this way, CA will >> claim we have colluded! >> >> A final point. It is likely that a number >> of people in ENV will become involved >> in IPCC next time. I wouldn't want any >> disclosure to jeopardize future involvement, >> if others who are involved in IPCC future think working with UEA people >> could be a liability. This is sort of covered >> in your final principal paragraph. >> >> Cheers >> Phil >> >> >>At 16:02 10/07/2008, Palmer Dave Mr \(LIB\) wrote: >> >>>Gents, >>>A copy of what was sent to Jonathan. Please >>>note that the opinion from the Met Office >>>quoted below is subject to lawyer-client >>>privilege and should not be shared outside the group that has now seen it. >>> >>>Cheers, Dave >>> >>>______________________________________________ >>>From: Palmer Dave Mr (LIB) >>>Sent: Thursday, July 10, 2008 3:56 PM >>>To: Colam Jonathan Mr (ISD) >>>Cc: Mouland Lucy Dr (VCO) >>>Subject: Freedom of Information request >>>(FOI_08-23) - Appeal resolution draft >>>Importance: High >>> >>>Jonathan, >>>A draft response for your review and >>>comment. I have been in contact with the ICO >>>who are of the opinion that, if we feel that >>>there are exemptions that we 'missed' on the >>>first review of the request, they should be raised at this stage. >>> >>>I have added a s.40 exemption on the >>>assumption that, even if names of >>>correspondents are redacted, there is enough >>>information in what's left to reveal the >>>identity of individuals. If what is left is >>>'personal data', then s.40 clearly applies; it >>>is whether what is left qualifies as personal data…. >>> >>>Additionally, I have added a s.36 exemption on >>>the basis that the disclosure of this >>>information would clearly "in the reasonable >>>opinion of a qualified person", "inhibit the >>>free and frank provision of advice, or, the >>>free and frank exchange of views for the >>>purpose of deliberation" and "would otherwise >>>prejudice… the effective conduct of public >>>affairs". This section, as I read it, does >>>not limit the provision of advice or exchange >>>of views to inside an organisation. I have >>>been in touch with Lucy to determine, in a >>>rough way, the opinion of the 'qualified >>>person' (i.e. the VC) in this case & she concurs. >>> >>>There is an additional argument that we might >>>wish to make. I have been in touch with the >>>Met Office that have received a similar >>>request. They have been in touch with the ICO >>>and are making the argument that the >>>correspondence is not actually 'held' by them >>>at all! The argument is as follows: guidance >>>from last year from the ICO indicates that >>>information in which the institution has no >>>interest but physically possesses, is not >>>'held' by them for the purposes of the Act. Guidance states: >>> >>>"In these circumstances the public authority >>>will have an interest in this information and >>>will make disclosure decisions. This is because although >>> >>>ownership may still rest with the depositor, >>>the public authority with whom the information >>>has been deposited effectively controls the >>>information and holds it in its own right. It >>>will therefore be difficult to argue that the >>>information is merely held on behalf of >>>another person and consequently not held for >>>the purposes of the public authority itself." >>> >>>And >>> >>>"There will be cases where such information is >>>simply held on behalf of a third party, for >>>example for preservation or security purposes. Perhaps the public >>> >>>authority may be holding the information as >>>part of a service (whether for gain or >>>otherwise) to the depositor. Although this >>>information is in the possession of a public >>>authority, it does not fall within the scope >>>of the Act as the public authority has no interest in it." >>> >>>And finally in regards personal emails in general >>> >>>"In most circumstances private emails sent or >>>received by staff in the workplace would not >>>be held by the authority as it has no interest in them. It will be a >>> >>>question of fact and degree whether a public >>>authority does hold them, dependent on the >>>level of access and control it has over the e mail system and >>> >>>on the computer use policies. It is likely to >>>be the exception rather than the rule that the >>>public authority does hold them." >>> >>>I have also received some correspondence from >>>the Met Office that sets out their argument >>>along these lines; and further an assertion >>>that the ICO has indicated that, on the facts >>>of their particular case (emails not created >>>by the organisation, or used by them). To quote the internal briefing note >>> >>>"...the IPCC consultation exercise did not >>>have a role in respect of the specific >>>functions of the Met Office. It was aligned >>>with them but not a function of the Met >>>Office. The whole purpose of the IPCC is that >>>it is independent and objective." >>> >>> The Met Office are arguing that their >>> Director's involvement was in a >>> pseudo-academic/personal capacity and not as >>> a representative of the Met Office and the >>> IPCC work was not Met Office work. What it >>> comes down to is our corporate interest in >>> this IPCC correspondence - if we have some, >>> then it would be 'held' by us. I have >>> emailed Mssrs. Briffa, Osborn & Jones to assess this .. .but your feeling? >>> >>>Where we to make this argument, I would put it >>>immediately after our re-assertion of our >>>primary grounds of exemption; if the ICO does >>>decide that we 'hold' this correspondence, we >>>would need to have a position on it's disclosure. >>> >>>Cheers, Dave >>> >>><> >>>____________________________ >>>David Palmer >>>Information Policy Officer >>>University of East Anglia >>>Norwich, England >>>NR4 7TJ >> >>Prof. Phil Jones >>Climatic Research Unit Telephone +44 (0) 1603 592090 >>School of Environmental Sciences Fax +44 (0) 1603 507784 >>University of East Anglia >>Norwich Email p.jones@uea.ac.uk >>NR4 7TJ >>UK >>---------------------------------------------------------------------------- > >Dr Timothy J Osborn, Academic Fellow >Climatic Research Unit >School of Environmental Sciences >University of East Anglia >Norwich NR4 7TJ, UK > >e-mail: t.osborn@uea.ac.uk >phone: +44 1603 592089 >fax: +44 1603 507784 >web: http://www.cru.uea.ac.uk/~timo/ >sunclock: http://www.cru.uea.ac.uk/~timo/sunclock.htm > -- Professor Keith Briffa, Climatic Research Unit University of East Anglia Norwich, NR4 7TJ, U.K. Phone: +44-1603-593909 Fax: +44-1603-507784 http://www.cru.uea.ac.uk/cru/people/briffa/