Another East Anglia misadventure yesterday, this one about the written testimony of Sir Edward Acton (VC, U of East Anglia) to the UK Parliamentary Inquiry about a recent response by the Information Commissioner Office (ICO) to apparent but time-barred FOI violations. Acton decided that a trick was a “good way” to deal with the problem – in this case, the “trick” was mischaracterizing a stern letter from the ICO. Unfortunately for Acton, this particular trick was exposed yesterday by the publication of the original letter on Bishop Hill’s blog, exposing the trick. Here’s how this particular situation unravelled.

On January 28, 2010, Ben Webster and Jonathan Leake of the Times reported here (also here) about the now notorious email from Phil Jones to Mann, asking him to delete emails pertaining to AR4 and to contact Wahl to do the same, noting that Briffa would do the same and that they would ask Ammann to do the same. (The key emails pertained to contact between Briffa and Wahl that were in violation of IPCC procedures.)

A spokesman for the ICO said: “The legislation prevents us from taking any action but from looking at the emails it’s clear to us a breach has occurred.” Breaches of the act are punishable by an unlimited fine. [SM – actually, the maximum fine is only 5,000 pounds.] In a statement, Graham Smith, Deputy Commissioner at the ICO, said: “The e-mails which are now public reveal that Mr Holland’s requests under the Freedom of Information Act were not dealt with as they should have been under the legislation. Section 77 of the Act makes it an offence for public authorities to act so as to prevent intentionally the disclosure of requested information.” He added: “The ICO is gathering evidence from this and other time-barred cases to support the case for a change in the law. We will be advising the university about the importance of effective records management and their legal obligations in respect of future requests for information.”

VC Acton immediately issued a statement on behalf of the university saying that the ICO’s opinion was a source of “grave concern”, claiming that they had always “responded fully to any requests for information”:

The ICO’s opinion that we had breached the terms of Section 77 is a source of grave concern to the University as we would always seek to comply with the terms of the Act. During this case we have sought the advice of the ICO and responded fully to any requests for information.

He added that FOI issues were part of the Muir Russell remit and that the university would act accordingly if the hapless Muir Russell (whose Inquiry secretariat is now known to be staffed by climate activist Geoffrey Boulton’s RSE employees) so requested:

“Sir Muir Russell is currently conducting an Independent Review of the issues surrounding what has become known as ‘Climategate’ and we very deliberately made our handling of FOI requests part of the terms of reference. I look forward to receiving his report and as I have said before it will be published and I will act accordingly if he finds there is indeed substance in these allegations.”

From the context of the ICO reply (dated Jan 29), it appears that UEA contacted the ICO on Jan 28, complaining about the ICO’s statement to the Times. The ICO sent back a sharply worded reply refusing to back off one inch from the statements provided to the Times. (Neither side of this exchange was public until yesterday.)

Yesterday (prior to the publication of the ICO reply), VC Acton submitted the following account of the exchange between the UEA and the ICO to the UK Parliamentary Inquiry:

3.7.6 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.

This characterization of the ICO letter would obviously leave a member of the Parliamentary Committee thinking that ICO had backed off the statements made to the Times and been an effort to reassure the university. In fact, it was nothing of the sort. The ICO did not back off an inch.

Here is a lengthy excerpt of all the relevant sections of the ICO letter:

I write in reply to your letter of today’s date, faxed to me this morning and copied to the Commissioner. I think it is important first to distinguish the current situation from your previous experience of dealing with the ICO on an FOI complaint. Complaints are made under section 50 of the Act following refusal by the public authority. If they require a full investigation, we allocate them to a complaints officer and, unless they are resolved informally, a decision notice is issued. The decision notice is the Commissioner’s statutory adjudication on a complaint. In the present case, the section 50 complaint has not yet been fully investigated and there will be exchanges of correspondence between the ICO and UEA as those investigations progress. Unless there is agreement on an informal resolution, a decision notice will be issued. This process is likely to take some months. Meanwhile, 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. Given that this was in the public domain and has been discussed in the media and on various websites over a number of weeks, the ICO’s view, as I indicated when we spoke yesterday, is that the University must have understood that the question whether an offence under section 77 had been committed would be looked at. In the event, the matter cannot be taken forward because of the statutory time limit. 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 Leake. He was specifically seeking a statement as to why the ICO was not prosecuting under section 77 in this case. The statement was not inaccurate and the ICO is not responsible for the way in which the media and others may interpret or write around an ICO statement. In response to the specific points which you think should be clarified in a further press statement: 1. As stated above, no decision notice has yet been issued and no alleged breaches have yet been put to the University for comment. That matter has yet to be addressed, but it will be over the coming months.

2. The fact that the elements of a section 77 offence may have been found here, but cannot be acted on because of the elapsed time, is a very serious matter. The ICO is not resiling from its position on this.

3. The ICO’s position is as stated in point 2 above. The statement may be read to indicate that. Under section 77, an offence may be committed by an individual, not necessarily the public authority itself.

4. Errors like this are frequently made in press reports and the ICO cannot be expected to correct them, particularly when the ICO has not itself referred to penalties or sanctions in its own statement. [SM- this is presumably the point about “unlimited” fines as opposed to a maximum of 5000 pounds, but I’m guessing here.] For all the above reasons the ICO will not be issuing a further press statement covering these points. The ICO does not wish to encourage further media reports on the matter, indeed our original press statement was only drafted for one journalist in response to a specific enquiry.

As Bishop Hill observed, the ICO letter did not characterize email exchanges made in the course of employment by an institution subject to FOI as “private” email. This embellishment by Action appears out of thin air.

The ICO did not say that this was “no more than prima facie”. The term “no more” is a complete misrepresentation of the ICO letter. The ICO said that “it is hard to imagine more cogent prima facie evidence” -(an independent opinion that should be borne in mind when one is evaluating the Penn State Inquiry charged with determining whether there was prima facie evidence concerning Mann on the same matter).

The ICO said “the fact that the elements of a section 77 offence may have been found here, but cannot be acted on because of the elapsed time, is a very serious matter. The ICO is not resiling from its position on this”.

In my opinion (for what it’s worth), Acton should not have attempted to represent the ICO letter to the Parliamentary Inquiry as somehow ameliorating the situation for the University. Acton should have left well enough alone on this topic. He could easily have said the same thing in his Parliamentary submission as he said in his initial statement – that the University was “gravely concerned”, had included FOI issues in the Muir Russell remit and would act appropriately when they received the Muir Russell report.

Instead Acton resorted to a “trick” – what Gavin Schmidt and the climate science “community” call a “good way” of dealing with a problem. Acton’s trick has blown up on him with the release of the actual ICO letter. I think that the “community” would have concluded by now that the public is fed up with “tricks” from the “community”. My guess is that Acton will get a very frosty reception from the Committee on this point.



