cc: "Mcgarvie Michael Mr \(ACAD\)" <M.Mcgarvie@uea.ac.uk>
date: Mon, 14 Jul 2008 10:25:17 +0100
from: Keith Briffa <k.briffa@uea.ac.uk>
subject: Re: FW: Freedom of Information request (FOI_08-23) - Appeal
to: Tim Osborn <t.osborn@uea.ac.uk>,Phil Jones <p.jones@uea.ac.uk>, "Palmer Dave Mr \(LIB\)" <David.Palmer@uea.ac.uk>

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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
>>>
>>><<Appeal_review_draft.doc>>
>>>____________________________
>>>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/ 

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