Second in a series.

[See update to the conclusion below]

In February, 2010, Pennyslviania State University (PSU) cleared Michael Mann of three allegations of research misconduct (and cleared him of the fourth in July 2010). In response, Senator James Inhofe (R-OK), Ranking member of the Senate Environment and Public Works Committee wrote a letter in February, 2010, to the National Science Foundation’s Office of Inspector General (OIG) asking them to conduct their own, independent investigation of Professor Michael Mann. Inhofe requested two specific things – that the OIG look into supposed research misconduct according to the NSF’s definition instead of PSU’s, and that the NSF determine whether or not Mann had violated the Freedom of Information Act (FOIA), information quality guidelines, the Federal False Claims Act, and/or the Federal False Statements Act.

On August 15, 2011, the OIG closed the investigation after concluding that there was no specific evidence that Mann had violated any of the rules, regulations, or laws Inhofe asked about.

Inhofe wrote in his letter that

there are federal laws and policies implicated in this matter, including [the NSF’s] “Research Misconduct” regulations, Title 45 CFR Part 689, that got beyond the scope of Penn State’s inquiry.

According to the OIG closeout memo, the OIG conducted the investigation that Inhofe requested, saying that the OIG “attempted to determine if data fabrication or falsification may have occurred….” As a result, the OIG concluded that “no direct evidence has been presented that indicates [Mann] fabricated the raw data… or falsified his results.”

Title 45 CFR §689.1 defines “fabrication” and “falsification” as follows:

(1) Fabrication means making up data or results and recording or reporting them.

(2) Falsification means manipulating research materials, equipment, or processes, or changing or omitting data or results such that the research is not accurately represented in the research record. [emphasis original]

Over the course of an investigation, the OIG “interviewed [Mann], critics, and disciplinary experts” as well as re-reviewing “all the reports and documentation the University provided… as well as a substantial amount of publically available documentation concerning both [Mann’s] research and parallel research conducted by his collaborators and other scientists. [emphasis added].”

In clearing Mann of the charges against him, the OIG essentially says that the preponderance of the evidence (such as the “parallel research” mentioned above that shows Mann’s work has been repeatedly vindicated by independent researchers reproducing his results using multiple alternative methods) indicates that Mann did not deviate significantly from the accepted practices of his research community and that any errors Mann might have made in his methodology were not intentional (see 45 CFR § 689.2(c)). Put another way, the OIG conducted the detailed investigation Inhofe asked for and judged that Mann’s conduct was honest.

The OIG also investigated whether or not Mann had broken any laws or regulations, starting with the FOIA. The portion of the FOIA that Inhofe specifically asked about (2 CFR §251.36 (d)) is applicable to any research “that was used by the Federal Government in developing an agency action that has the force and effect of law.” According to the closeout memo, the OIG concluded that this section of the FOIA did not apply in this case because the NSF is not a rules-making body but rather devoted to research and education.

This ruling is technical and narrow. But the nature of climate research would also argue against any hypothetical violations of the FOIA. Any laws or regulations coming out of climate research would naturally be based on the thousands of papers written by thousands of scientists, not any one or two contentious papers written by Mann. S&R asked the OIG to comment on the technical nature of this conclusion but they did not reply in time for this publication.

In addition, the OIG examined whether or not Mann’s work violated the “information quality guidelines” set up by the Office of Management of the Budget (OMB)(515 guidelines), and again found that the guidelines do not apply. The OMB says that the guidelines don’t apply to “grantees who publish their research findings in the same manner as their academic colleagues,” something that Mann did and does. In addition, the guidelines only apply to work produced by NSF employees or researchers who perform research that later becomes the official position of the NSF. Mann was never an employee of the NSF and his papers have not become the official policy of the NSF, so the guidelines don’t apply.

Finally, the OIG looked at whether or not Mann broke the law by being paid for his research (false claims according to 18 USC §287 and 31 USC §§3729-33) and found that there was insufficient evidence to justify an investigation. After all, it’s only a crime to be paid for lying if you’re actually lying – accurately reporting your data and being paid for that is not, by definition, a false claim. Similarly, since Mann was found innocent of falsifying his research, he could not, again by definition, be guilty of making false statements according to 18 USC §1001.

S&R contacted Matt Dempsey, communications director for Inhofe at the Senate Environment and Public Works Committee, for comment. Dempsey said that Sen. Inhofe had not yet received an official response from the OIG and so could not comment at this time.