Excerpts from Bishop Hill: A major FOI victory

This post is a jointly written effort by myself and Don Keiller.

Readers may remember the Information Commissioner’s ruling last year that UEA had to release the CRUTEM data sent by Phil Jones to Peter Webster at Georgia Tech. This had been requested by Jonathan Jones and Don Keiller.

This ruling was obviously very welcome, but in fact it was not the end of the story. UEA had put forward an argument that CRUTEM data was held under agreements with national meteorological services and could not therefore be disclosed to outsiders. Along with his request for the data, Keiller had therefore also requested the covering email that Phil Jones had sent to Webster, which should presumably contain caveats about reuse and disclosure. However, when the Information Commissioner ordered UEA to release the data,  UEA’s non-disclosure of the email was upheld, on the grounds that the information was, on the balance of probablilities, ‘not held’.

However, by the time of the ICO’s ruling, it was clear that CRU had its own backup arrangements – the CRUBACK3 server that was at the centre of the Climategate affair – and it was therefore fairly clear that the email did still exist. UEA were in essence trying to argue that since it was no longer on Phil Jones’ hard drive, it was no longer legally ‘held’ for the purposes of the Environmental Information Regulations (EIR), regardless of its presence on the backup server. Keiller therefore decided to appeal the ICO’s decision to the Information Tribunal. Firstly he had to provide new prima-facie evidence to support the appeal to an internal ICO Appeals Panel, who decide whether there are grounds for an appeal.

 

…

The tribunal looked at three questions:

• Is it more probable than not that the email sent on or about 15 January 2009 by Professor Jones to Georgia Tech attaching datasets was backed up onto and retained on the Climate Research Unit’s (CRU’s) back-up server prior to this server being taken by the Police?
• Is it more probable than not that the e-mail contained ‘any instructions or stipulations accompanying the sending of datasets’?
• Is there a valid argument that a back-up of an e-mail retained after the original had been deleted from the computer on which it was composed is not ‘held’ for the purposes of the EIR?

The hearing started with Jonathan Colam-French (Director of Information System at UEA) providing evidence about the procedures in place to record, manage and dispose of staff emails. Unfortunately for UEA, the systems described by Mr Colam-French were not in place at the time Jones sent his email to Georgia Tech, a fact uncovered by the otherwise ineffective Muir Russell Report.

In their decision the Tribunal made some pointed remarks about UEA’s evidence, stating that:

The Tribunal were rather disconcerted by the evidence adduced by the UEA on [Question 1]. Jonathan Colam-French had almost no knowledge of the CRU’s back-up system and was simply unable to answer several pertinent questions…

and

…we noted the complete lack of evidence about anything resembling a coherent deletion/retention policy for emails.

On this basis, the tribunal reached their first ruling, namely that the email was more than probably still on the backup server.

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UEA are now required to approach the Police to see if they will provide a copy of the email in question, and to see if they or someone else will extract it for them. (As another aside, we might note that copies of Jones’ emails and indeed those of Keith Briffa and Tim Osborn have already been provided to the Russell inquiry. I wonder what happened to those copies of the emails or if UEA also received a copy?).

So, the key outcome of this case is that a further precedent has been set. That precedent is that UEA’s refusal to release information on the grounds that under EIR Reg. 12(4)(a) – Information not held, is no longer valid. Backup servers have to be searched.

Full story at Bishop Hill: A major FOI victory