Climategate 2.0 emails contain an interesting backstory on East Anglia’s evasion of Steve Mosher’s request for something as simple as university policies that governed entry into confidentiality agreements. Palmer consulted university specialists, receiving an answer that was adverse to the line that they were taking in their CRUtem refusals. Rather than providing this information to Mosher, Palmer adopted a tactic borrowed straight from Sir Humphrey. He pretended that he didn’t understand the question and asked Mosher for clarification – undoubtedly on the off-chance that Mosher would not return the ball. Palmer’s tactic succeeded. They avoided answering the question. The Climategate 2.0 backstory, especially Jones’ candid answers, make fascinating reading, as it shows that there were indeed compulsory university policies which were related to a term of standard employment contracts – information provided directly to Palmer.

.

In response to CRU’s initial refusal (reviewed yesterday here), Mosher sent an FOI request (see July 24 – 3069) that, in addition to requesting confidentiality agreements for five countries, asked for policies and procedures governing East Anglia employees entering into confidentiality agreements:

Dear Mr. Palmer:

Pursuant to the Environmental Information Regulations, I hereby request

the following information … In addition, I hereby request the following information:

1. A copy of policies and procedures regarding employee responsibilities regarding entering into confidentiality agreements.

2. A copy of policies and procedures regarding employee responsibilities regarding the preservation of written agreements.

3. A copy of policies and procedures regarding employees entering into verbal agreements.

4. A copy of instructions to staff regarding compliance with FOI requests.

I am requesting this information as part of my academic research.

Thank you for your attention,

Steven M. Mosher

About two weeks later (Aug 5 10:39 – 3069), Palmer drew this request to the attention of his most regular correspondents (Jones, Mcgarvie), but also Jonathan Colam-French (who was responsible for hearing FOI appeals), Annie Ogden, Head of Communications (copied on numerous emails), Andrew Mee (presently a “Learning Technologist in Information Services”) and Steve Whitehead (presently an Assistant Purchasing Officer). Palmer requested assistance:

Folks,

The next ‘other’ request relating the the CRU agreements & data. The first part of the query will be answered in line with the answer given to other requesters for the agreements. In regards the second part, I will need some assistance as noted below 1. A copy of policies and procedures regarding employee responsibilities regarding entering into confidentiality agreements. Steve, do we have any contracting policy on this? Phil – anything with CRU on

responsibilities regarding entering agreements on behalf of CRU? I don’t think we wish to state that we don’t have any policies or procedures in place, but I’m not sure what to actually put here… 2. A copy of policies and procedures regarding employee responsibilities regarding the preservation of written agreements. Ah, records management rears it’s head….We have a general statement on our website regarding our responsibilities for RM but we do lack any overarching records retention schedule or policy – Phil, does CRU have anything in-house? 3. A copy of policies and procedures regarding employees entering into verbal agreements.

See question 1; same issue here although more likely to have a `nil’ response here – consequences of that? 4. A copy of instructions to staff regarding compliance with FOI requests.



We have web guidance that can be referred to, and a brochure that I distribute that could go here…. and a statement regarding the training on offer

Cheers, Dave

Jones, with his characteristic promptness, responded two hours later (Aug 5 12:15 – 856) to all of the parties on the original email. Jones said that the “Registry” went through their agreements, but that they “sometimes ignored” Registry advice. Palmer had noted that there were responsive brochures and documents, but Jones warned him that he “wasn’t sure that [Palmer] should go down that route” i.e. provide Mosher with responsive documents, a direction that Palmer heeded.

(Jones inline answers are italicized below).

Subject: Re: FW: FOI/EIR request [FOI_09-69]

Dave,

A few responses inline

Cheers

Phil At 11:52 05/08/2009, Palmer Dave Mr (LIB) wrote:

Folks,

The next ‘other’ request relating the the CRU agreements & data.

The first part of the query will be answered in line with the answer given to other requesters for the agreements. In regards the second part, I will need some assistance as noted below 1. A copy of policies and procedures regarding employee responsibilities regarding entering into confidentiality agreements.

Steve, do we have any contracting policy on this? Phil – anything with CRU on responsibilities regarding entering agreements on behalf of CRU? I don’t think we wish to state that we don’t have any policies or procedures in place, but I’m not sure what to actually put here…

I don’t think there is anything – if there is I’ve never seen it. People in

CRU (not just me) enter into agreements about data and/or writing papers and getting involved in projects. UEA signs research contracts for us. UEA employees do the work, but UEA administers the grant. The various agreements that UEA signs may say things about data access, but it will vary depending on the funding body. Some are more stringent than others. The Registry goes through these. They mostly help the researchers by not letting ourselves sign away any rights and IPR. We do sometime ignore the Registry advice, preferring to fall back on the verbal agreements we have with the funders (their project officer). If we ever have a problem, we probably wouldn’t work with them again. This has happened with some scientists I have collaborated with in the past. 2. A copy of policies and procedures regarding employee responsibilities regarding the preservation of written agreements.

Ah, records management rears its head. We have a general statement on our website regarding our responsibilities for RM but we do lack any overarching records retention schedule or policy Phil, does CRU have anything in-house? CRU has nothing in this regard.

3. A copy of policies and procedures regarding employees entering into verbal agreements.

See question 1; same issue here although more likely to have a nil response here -consequences of that?

As said in the 2 pager we’re working on, we put some of the agreements in the letters we wrote to Met Services requesting data (some of which we paid for). There has been a lot of time and effort gone into making these contacts. It seems as though this counts for nothing. Again – unlikely to be anything. People agree things with other academics at meetings. This is how science works.

4. A copy of instructions to staff regarding compliance with FOI requests.

We have web guidance that can be referred to, and a brochure that I distribute

that could go here. and a statement regarding the training on offer I’m not sure you want to go down this route!



Palmer immediately forwarded the email thread with Jones’ troubling answer to two other UEA officials, Matthew Hume, (presently Commercialisation & Patents Administrator) and Alan Walker, Research Services Manager (see Research Enterprise and Engagement organization chart here.)

Subject: FW: FOI/EIR request [FOI_09-69]

Importance: High

Matt,

Please note Phil Jones’ response to question 1 below [about “ignoring” Registry advice] – would REE [Research Enterprise & Engagement] have anything that would be relevant to this request? A bit of context – in response to a rejection of a request for data, we have received over 50 requests for agreements, data and a combination thereof in relation to data sets that CRU maintains/holds. This is pretty high profile and has been noted in blogs in the Guardian and Telegraph as well as in the source of all of this (see: [2]http://www.climateaudit.org). Be assure that whatever we state in response to this request is likely to be on the web, shared and very public within hours of sending…. We have a request from another individual exactly the same as below so there will be multiple recipients of the answer we give. Our deadline for a response is 21 August but as I’m on hols commencing 17 August, the ‘effective’ deadline is 14 August.

Cheers, Dave

Hume wrote back to Palmer immediately cc Walker (Aug 5 15:16 – 856) saying that they had had a “good laugh” at Jones’ answer and recommended that Palmer withhold this information from Mosher. Hume told Palmer that the University had clear policies that prohibited staff from entering into confidentiality agreements and which required all confidentiality agreements to be signed and kept on file:

Subject: RE: FOI/EIR request [FOI_09-69]

Hi Dave,

We all just had a very good laugh at Phil’s comment “We do sometime ignore the Registry advice”… If this is going to have the kind of publicity that you suggest, I would prefer if you do not quote ANY of his answer to question 1. The UEA actually has a very strict policy on entering into confidentiality agreements, however as Phil so blithely admits, a handful of academics take it upon themselves to foul things up! As you will note from points 1 & 2 of our policy; no UEA employee, except members of our office, has the right to sign anything on behalf of the university – the problem is that funders/other parties can be sneaky by sending the agreement in the name of the academic. Our policy is:- Someone from the Commercialisation & Enterprise Team should approve and sign all Confidentiality Agreements: only our staff have the legal authority to sign agreements on behalf of the University all agreements should be between the University of East Anglia and the party requesting the agreement (not an individual academic or school) we will negotiate with the other party on any issues within the document that may be contentious by doing this we will ensure you the best protection of your IP rights (In special circumstances, authorisation may be obtained from the Commercialisation & Enterprise Team allowing you to sign the agreement yourself. Such authorisation must always be obtained in advance, will only be valid for a specific instance, and the standard university agreement must be used without amendment – unless we have authorised an amendment) In all cases, a copy of the fully signed confidentiality agreement must be retained

in our office. FYI – we are currently finishing off the final touches to our new intranet pages – there will be a page on CDA’s with this info on it. Also, I am away on holiday next week (10th -14th), so if you do any more info on our policy regarding agreements etc, please contact Anne Donaldson, one of our Commercialisation Manages

Thanks

Matt.

Within minutes, Palmer responded (Aug 5 15:23 856) telling Hume and Walker that Hume had presented Palmer with a “conundrum”.

Subject: RE: FOI/EIR request [FOI_09-69]

Matt,

Thanks very much for this… You have given me a bit of a conundrum on how to respond but we do at least have something to work with…. What policy are you actually quoting from and is it publicly available? As the request was for the entire policy, is there any issue with making the policy publicly available? If the policy in regards confidentiality agreements is within a larger document with unrelated material, I am happy to quote but I do think we will need to provide a proper citation…

Cheers, Dave

Palmer immediately (Aug 05 15:32 856.) wrote to his original correspondents (Jones, Colam-French, Mcgarvie, Ogden) explaining the conundrum, wondering whether the policy had been in effect when the original “agreements” had been entered into:

Subject: FW: FOI/EIR request [FOI_09-69] Folks,

In response to one of Phil’s earlier emails regarding any policies regarding entering into confidentiality agreements etc, I sent a query to REE to determine what relevant information they might have… and received the below response to which I have responded as you can see… This does present something of a ‘issue’ in terms of drafting a response and dealing with any potential follow up request/query regarding our practices in this regard. I wonder if whether said policy was in force at the time the agreements were entered into would be a way around this… the request is for current policies clearly…. I will enquire further with Matt Hume….

Cheers, Dave

Jones then wrote to Matthew Hume (Aug 5 16:58 856). Jones told Hume that his comments had been “tongue in cheek” and that the agreements in question were “not really confidentiality agreements” – an astonishing statement given the line taken with respect to FOI requesters. Jones went on to say that “there is never any obligation on CRU or UEA” arising from these agreements which are “generally about agreeing to work together on something”:

subject: My earlier comments

Hi Matt,

My comments were tongue in cheek! The agreements that we’re talking about are not really confidentiality agreements that you’re talking about. Lots are unwritten agreements that we make scientist to scientist. Where there are written agreements they are signed between me (or previous Director’s of CRU) with other academic institutions, which were not with their central administration (but again a sub part). CRU doesn’t initiate these, but if the other side wants it and it will help us do some work then we go ahead and sign. There is never any obligation on CRU or UEA. They are generally about agreeing to work together on something. The agreements Dave is talking about are ones that relate to us not making climate data available to third parties, which we have got from a National Met Service.

Jones went on to complain that the problem was not CRU’s disregard for university and public policy, bu that “blogsites” have alloed “climate change deniers” to find one another:

FOI is causing us a lot of problems in CRU and even more for Dave, as he has to respond to them all. It would be good if UEA went along with any other Universities who might be lobbying to remove academic research activities from FOI. FOI is having an impact on my research productivity. I also write references for people leaving CRU, students and others. If I have to write a poor one, I make sure I get the truth to the recipient in a phone call. I’m also much less helpful responding to members of the public who email CRU regularly than I was 2-3 years ago. I’ve seen some of what I considered private and frank emails appear on websites. Issue here is blogsites have allowed these climate change deniers to find one another around the world.

Hume responded the next morning (Aug 06 09:24 2274.), suggested that Jones would be able to deflect criticism about the confidentiality agreements by showing that university policies “removed” the decision to enter the agreements from Jones’ control. Hume noted to Jones that a term of the university’s employment contract with staff prevented staff from entering into contracts without approval, observing that he had passed this information on to Palmer (this email is not in the Climategate dossier so far):

Hi Phil,

My apologies – no offence meant – your comment amused us. I know both you & Dave have been coming under a lot of flack from these people, and I agree the FOI rules are a pain – unfortunately they are rules we have chosen to abide by… Myself, and the REE office, totally support you and your right to protect your research – especially when it is questioned by people who’s intentions are so antagonistic and destructive. And I surmised that these people are trying to gather information that you/the university has agreed to keep confidential. Maybe by showing these people that we remove that responsibility for this out of your control – i.e. that you were not the person who signed these agreements; but they were signed on behalf of the University; then they will have to re-think about contesting them? I passed another paragraph onto Dave last night. This is from the employment contracts that all staff agree to when working here: “Members of the ATR/ATS Staff shall not, in connection with any invention, patent, process or manufacture, have authority to make representations on behalf of the University, or to enter into any contract or to be concerned in any transactions on behalf of the University whatsoever without the express consent of the Council.” It may or may not be appropriate to answer the question posed; but hopefully Dave will be able to make something with it. If I can be of any more help, please feel free to ask.

Regards

Matt.

Jones wrote back to Hume (Aug 6 10:27 2274.) warning that if Palmer goes down the route suggested by Hume (i.e. informing Mosher of the policies and procedures that prohibited Jones from entering into the alleged confidentiality agreements without university approval), this would open the university up to further criticism. Jones also worried about David Holland’s pending appeal for off-balance-sheet IPCC review comments and correspondence:

Subject: RE: My earlier comments

Hi Matt,

Thanks for the thoughts. These people don’t have logic as their strong suit. If Dave goes down the route you suggest, I think they will come back on UEA for not supervising me properly! There is another FOI/EIR that has gone to the FOI Commissioner. This one is potentially more important as it relates to email correspondence between the authors of a chapter in the last IPCC (Intergovernmental Report on Climate Change) Report. I think people shouldn’t be able to request my emails just because I happen to work for a government funded University. Perhaps UEA needs a ruling on requests for our emails. …

Cheers

Phil

Presumably the matter continued to be discussed among the parties, but the Climategate 2.0 curtain goes down on this topic.

Nonetheless, Palmer indeed had a conundrum: the university had clear policies prohibiting confidentiality agreements without approval and requiring retention of such agreements; staff contracts even included this requirement as a term of employment.

What to do? What to do?

Palmer’s manouevre was straight out of Sir Humphrey’s playbook and succeeded beyond any reasonable expectation. Although Palmer had all the materials on hand to respond to Mosher’s question, he pretended that he didn’t understand and sent out a “Clarification Request”.

Subject: Freedom of Information Act request (FOI_09-69) – Clarification request Mr. Mosher, Attached please find information on the handling of your request received 24 July 2009 for your review and action. Cheers, Dave Palmer FREEDOM OF INFORMATION ACT 2000 – INFORMATION REQUEST

(Our Ref: FOI_09-69)

Further to your request for information received on 24 July 2009, I have consulted relevant units within the University and, pursuant to my obligations under section 16 of the Act to provide advice and guidance, I am writing to request clarification of several aspects of your request. Apologies for the delay in responding to you on this matter, but as you may know, we have received a large number of requests for information under the Act recently and it is taking some time to deal with each request. In your request, you have asked for a copy of policies and procedures regarding employee responsibilities regarding entering into confidentiality agreements and verbal agreements, and for a copy of policies and procedures regarding employee responsibilities regarding the preservation of written agreements. The University does not have one, overarching policy or procedure regarding entering into confidentiality or verbal agreements. Each division within the University has policies and procedures specific to their area of work. This also applies to the preservation of written agreements. In order to answer your question for all of the University, it is highly likely that we would exceed the statutory appropriate limit of 18 person hours to locate, retrieve & review the requested information. In order to avoid this situation, I would therefore ask you to clarify what aspect of the University’s work would be the focus of your request for such policies and procedures. For example, given the nature of the other components of your request, are you simply interested in policies in relation to research activities? Please note that the statutory timescale of 20 working days as defined by the Freedom of Information Act 2000 will be ‘suspended’ until such time as we receive clarification of your request. Once that is received, the ‘clock’ will recommence, your request considered, and you will receive the information requested within the statutory timescale, subject to the information not being exempt or containing a reference to a third party. You will be informed of any exemptions or references to third parties. I trust this is to your satisfaction and look forward to your reply.

Yours sincerely

David Palmer

Information Policy & Compliance Manager

University of East Anglia

Some assertions in Palmer’s letter seem untrue on their face. Palmer told Mosher that “the University does not have one, overarching policy or procedure regarding entering into confidentiality or verbal agreements. Each division within the University has policies and procedures specific to their area of work. This also applies to the preservation of written agreements. In order to answer your question for all of the University, it is highly likely that we would exceed the statutory appropriate limit of 18 person hours to locate, retrieve & review the requested information.”

However, Matthew Hume’s emails clearly state the opposite – that the University did have “overarching” policies and procedures governing confidentiality and verbal agreements. And governing the “preservation of written agreements”. However, rather than providing this information to Mosher, Palmer pretended that he required “clarification”. Palmer’s manouevre succeeded. Mosher didn’t provide the requested “clarification” and the FOI request remains pending to his day.

Maybe Mosher should send Palmer the “clarification” that he requested.



