One thing that becomes more clear about FOI (and Open Data) as it settles into British society is to expect the unexpected (which, helpfully, gives us lots to study, and in turn, we hope our research helps). In all honesty, would anyone have predicted a ‘zombie’ parade on the streets of Leicester after an FOI request to the local council?
One new development with FOI is a small but growing collection of case law about FOI and universities, which is challenging some basic notions about what academic publishing is and how intellectual property works. Peer review is how academic work is challenged and critiqued, right? Except now, access to data is now a right for anyone. A ‘staggering injustice’ is one academic’s take on a decision by the Information Commissioner regarding his intellectual property. What’s also becoming clearer is some of the premises about FOI – what’s it for, who’s meant to benefit – are being challenged by what’s happening with universities:
- FOI is about the helping little the guy: except when Tobacco giant Philip Morris uses FOI to get hold of information regarding teenage smokers.
- FOI is about opening up government to the public: except most funding of universities is not from the government; the relationship with taxpayers has changed dramatically in the last few years…
What seems to be happening is a clash between FOI’s broad goals and the unique (and rapidly changing) realties of the university environment. They are multi-million pound institutions with networks that stretch across the globe. Academics share data everyday; peer review challenges ideas. They are in direct competition with each other for students and for research funding.
A lot has been written in recent months this topic, from various angles: epidemiologists in The Lancet have espoused the virtues of sharing data for better public health; FOI advocate Heather Brooke has defended Philip Morris’ requests to Stirling University; the Commons’ Science and Technology committee urged guidance be drawn up to help academics cope with FOI following the climate-gate affair (the ICO has just done so); David Colquhoun fought against the teaching of a BSc in homeopathy at University of Central Lancashire using FOI; George Monbiot has outlined the manifold problems with dissemination via expensive academic journals; Princeton, Harvard and MIT have adopted an open-access policies; Jon Baldwin has questioned why Universities in the UK are covered by FOI at all.
We’re beginning a new project looking at the relationship between universities (and other High Education institutions), academics and researchers, and FOI/EIR. One side of the project is going to look at how academics make use of requests themselves (we’ll blog about this soon), but the other is FOI’s impact on universities. Going beyond the headlines of ‘climate-gate’, we’re hoping to find out what’s really going on. Are these cases one-offs? Or the tip of an iceberg?
We’re asking if FOI has changed…
- the policies or practices of universities? Or the relationships with their students, funders and competitors?
- the way they bid for contracts, or the kind of information they proactively release?
- what researchers chose to study? Or how they are able to publish and personally gain from their research?
- the mindset of researchers when it comes to sharing data and results?
We hope to be able to provide some answers to the above questions. We’re going to be interviewing academics and requesters, looking at the case law and analysing the requests themselves. We’ll be adding more information to our project page over the course of the next year. Keep an eye on us (we are, after all, covered by FOI!)
The Constitution Unit Blog 
An even more interesting irony is that the £300k enquiry paid for by the UEA into people deleting information rather than disclose it, then deleted all its own correspondence as soon as it could from the public authority server where most of it was held. This is the real scandal.
As Adam Gallon says, the climategate emails are informative. In addition to the ones he quotes, there is
1182255717.txt: “Think I’ve managed to persuade UEA to ignore all further FOIA requests if the people have anything to do with Climate Audit.”
1228330629.txt: “When the FOI requests began here, the FOI person said we had to abide by the requests. It took a couple of half hour sessions – one at a screen, to convince them otherwise showing them what CA was all about.”
Also there is 1211924186.txt, which refers to David Holland’s request for information, followed just two days later by 1212073451.txt (quoted above, note the subject line “IPCC and FOI”) which asks colleagues to delete the requested information – contrary to the FOI law.
This is all explained in great detail in David Holland’s submission to the ICCER.
An interesting irony related to freedom of information is that the ICCER refused to publish David’s submission (see their website). They cite ‘legal advice’ but do not explain what this means. The reason may be David’s clear demonstration of the CRU attempt to break the law.
Universities and academics have nothing to fear from FOI. It is not a “threat” as claimed in the project abstract.
@Climscifoi, 11 Oct at 11:46
a) The FOI and EIR are crystal clear in regards to Gmail. Section 3(2)(b) of the FOIA states:
“For the purposes of this Act, information is held by a public authority if it is held by another person on behalf of the authority.”
EIR regulation 3(2)(b) is the same. If you hold, in your Gmail account, information on behalf of a public authority and it is lawfully requested under the Act or Regulations, it is a section 77 or regulation 19 offence not to give your FOI officer access to it.
b) No one has been convicted yet on s.77 or r. 19. However, Eugene Wahl has admitted that he did delete his copies of what I was requesting when Phil Jones asked Mann to ask him to. Fortunately for him, at the time, he was not working for a Federal Agency.
However, all the EIR regulations and sections of the FOIA are the law of the land. Decision Notices issued against UEA and the University of Reading state that they did not comply with the law. Neither have appealed the Decisions. Both the Met Office and the University of Oxford did eventually make disclosures long outside the time limits, after discussions with the ICO thus tacitly admitting to breaking the law.
c) Clearly there are proper reasons for not allowing public access to a live video feed from the IPCC bathrooms – unless that is where it is where the important decisions are made. However, there are no proper reasons for not letting the public who have paid for them see the intermediate drafts of the IPCC report together with the review comments on them and the authors responses when they are completed.
There is no argument about the drafts being disclosed just when. The recent decision sneaked into the IAC recommendations states that they will all be released, but only after the decision has been made by governments to accept as the final Draft as the official IPCC report. On this basis the IPCC could claim to be transparent up to a point – we learnt much more from Climategate about the TAR and AR4 than anything the IPCC ever disclosed.
However, the Confidentiality decision at the 33rd Session in May was intended to make the IPCC assessment process a closed one. Not a partly closed one but one entirely closed to the public and the press. It is not intended to be even be slightly open. Subsequent limited transparency does not compensate for it being a closed process.
I must remind you of Sir John Houghton’s 2002 paper for Royal Society of Chemistry. You can find it here:
Click to access BK9780854042807-00001.pdf
After trumpeting the “hockey stick” as proof of man made global warming for over a year, Sir John claimed:
“The work of the IPCC illustrates the following five important features which I believe should characterize the scientific assessments that form an input to policy making.”
You can make your own mind up on the other four but this is what he said about the third:
“Thirdly, all parts of the assessment process need to be completely open and
transparent. IPCC documents including early drafts and review comments have been freely and widely available – adding much to the credibility of the process and its conclusions.”
This was just spin. The only working documents available to the public on the TAR lie in 8 unindexed boxes in a Harvard Library. If Susan Solomon had her way that is how the AR4 working documents would have been treated.
Have you read the documents I referenced in my first post? If you have it should tell you why openness is a fundamental requirement of the IPCC process. There is overwhelming documented evidence that the IPCC rules were broken as well as conventional scientific standards because it was a closed process with limited transparency.
a) It is not at all clear that gmail is ‘held on behalf of the public authority’ within the meaning of the UK FOI or EIR. Do you have any case law to support this assertion? (The ICO guidance is remarkably wishy-washy on this point, and your position would appear unenforceable in any case).
b) Your claim that ‘climate scientists’ broke the law is not supported by any body in position to judge that on it’s legal merits. And your claim that all of your FOI requests stem from this single act sometime prior to 2008 is belied by your recent series of identical requests to multiple authorities for internal documentation related to an international meeting in May this year. How would publication of the ZOD inform anyone about the alleged law breaking event?
c) ‘open and transparent’ is clearly subject to limits. It does not imply that you have a right to install cameras in the IPCC bathrooms, nor does it cover drafts, pre-decisional deliberations etc. as you are no doubt aware. Your argument related to ‘we the public paying for it’ doesn’t actually work either in UK law or internationally (FOI and EIR trump any such blanket claim). Since you are not (apparently?) a citizen of US (the major IPCC funder) or Switzerland (the IPCC base), your standing to demand anything of the IPCC is unclear.
From the proposal,
“We are the ones who trudged miles over bogs and fields carrying chain saws. We prepared the samples and – using quite a lot of expertise and judgment – we measured the ring patterns. Each ring pattern therefore has strong claims to be our copyright.”
I would suggest that each publicly funded ring pattern has strong claims to be considered as “work for hire”, and therefore the property of the public.
Dear Academics.
As a tax payer, I fund your work. Whether this is through taxes or through my daughter’s university fees.
Thus Professor Mike Baillie’s complaints about a member of the public, having the temerity to request information that has been paid for by the public purse, especially when this information is decades old, doesn’t sit well with me.
Your comment about “Climategate” not being anything to do with FOI requests, is inaccurate.
I draw your attention to these e-mail, released along with the others. 1107454306.txt
“At 09:41 AM 2/2/2005, Phil Jones wrote:
Mike, I presume congratulations are in order – so congrats etc !
Just sent loads of station data to Scott. Make sure he documents everything better this time ! And don’t leave stuff lying around on ftp sites – you never know who is trawling them. The two MMs have been after the CRU station data for years. If they ever hear there is a Freedom of Information Act now in the UK, I think I’ll delete the file rather than send to anyone. Does your similar act in the US force you to respond to enquiries within 20 days? – our does ! The UK works on precedents, so the first request will test it.We also have a data protection act, which I will hide behind. Tom Wigley has sent me a worried email when he heard about it – thought people could ask him for his model code. He has retired officially from UEA so he can hide behind that. IPR should be relevant here, but I can see me getting into an argument with someone at UEA who’ll say we must adhere to it !”
“From: Phil Jones
To: santer1@XXXX
Subject: Re: A quick question
Date: Wed Dec 10 10:14:10 2008
Ben,
Haven’t got a reply from the FOI person here at UEA. So I’m not entirely confident the numbers are correct. One way of checking would be to look on CA, but I’m not doing that. I did get an email from the FOI person here early yesterday to tell me I shouldn’t be deleting emails – unless this was ‘normal’ deleting to keep emails manageable! McIntyre hasn’t paid his £10, so nothing looks likely to happen re his Data Protection Act email.”
“From: Phil Jones To: “Michael E. Mann”
Subject: IPCC & FOI
Date: Thu May 29 11:04:11 2008
Mike,
Can you delete any emails you may have had with Keith re AR4?
Keith will do likewise. He’s not in at the moment – minor family crisis.
Can you also email Gene and get him to do the same? I don’t have his new email address.
We will be getting Caspar to do likewise.
I see that CA claim they discovered the 1945 problem in the Nature paper!!
Cheers
Phil:”
“From: Phil Jones To: mann@xxx.edu
Subject: Fwd: CCNet: PRESSURE GROWING ON CONTROVERSIAL RESEARCHER TO DISCLOSE SECRET DATA
Date: Mon Feb 21 16:28:32 2005
Cc: “raymond s. bradley” , “Malcolm Hughes”
Mike, Ray and Malcolm,
The skeptics seem to be building up a head of steam here ! Maybe we can use this to our advantage to get the series updated !
Odd idea to update the proxies with satellite estimates of the lower troposphere rather than surface data !. Odder still that they don’t realise that Moberg et al used the Jones and Moberg updated series !
Francis Zwiers is till onside. He said that PC1s produce hockey sticks. He stressed that the late 20th century is the warmest of the millennium, but Regaldo didn’t bother
with that. Also ignored Francis’ comment about all the other series looking similar to MBH.
The IPCC comes in for a lot of stick. Leave it to you to delete as appropriate !
Cheers
Phil
PS I’m getting hassled by a couple of people to release the CRU station temperature data.
Don’t any of you three tell anybody that the UK has a Freedom of Information Act !”
I suggest that FOI plays a major role in “Climategate”.
Maybe you could ask another question, along the lines of “Why do you feel that your work shouldn’t be subject to scruitinee from those who’ve paid for it?”
Yours truly
Adam Gallon
climscifoi,
I think you are wrong, certainly on b). The EIR states that it implements Directive 2003/4/EC and that states that Community Law must be consistent with with Aarhus. The EIR applies to all environmental information which is very broadly defined. It certainly covers emails – I have hundreds to prove it, and sloping off to Gmail will not help you.
As for my requests they almost all relate to a single matter and would have ceased in 2008 had climate scientists obeyed the law. What is the problem with the IPCC being open and transparent? We the public pay for all of it.
We may never know who leaked the UEA emails or why but if you read my ICCER submission there is a remarkable fit to my request. The same applies to what others had asked for and had been denied – starting with Warwick Hughes.
It’s worth pointing out that a) Climategate had nothing to do with any FOI request – the release of the emails and data was clearly not via any FOI or EIR mechanism, b) The Aarhus convention speaks only to information related to the environment – application of that convention to any emails of any university academic who has worked on any environmental issue is a huge extension of what the Aarhus convention covers and that (if indeed that is covered) would be related to definitions and scope of EIR (2004), not the Aarhus convention itself., and c) there are protections in UK FOI for unpublished data (e.g. 12(5)(c) and 12(5)(d)) – it is rather that they are not unqualified protections (being subject to a public interest test), and case law that would determine what is and what is not reasonable and what the appropriate standards should be, is clearly lacking.
The above comment from David Holland is interesting though. Most (all?) of his FOI requests are logged through the WhatDoTheyKnow website and might perhaps be a prime exhibit in looking at how FOI/EIR legislation is used by determined individuals.
With the greatest of respect I think you’re your project is misconceived. Your repeated references to Climategate and the odd reference to QUB, makes it clear that your quarrel is with the United Nations Economic Commission for Europe’s Convention on access to information, public participation in decision-making and access to justice in environmental matters (the Aarhus Convention).
Unlike the FOIA, the EIR are required by Directive 2003/4/EC to be compatible with the Aarhus Convention and apply equally in the all countries that are parties to it. Getting this treaty changed to suit the wishes of academics is a pipe dream.
I also think that the tone of your Research Proposal and your presentation show that you have little idea of what Climategate was about, or how utterly defective was the so-called Independent Climate Change Email Review. Graham Stringer MP described it as beyond parody. Were it not for Climategate you would not be undertaking this study, so please let me suggest a short reading list for you.
Click to access ChristyJR_written_110331_all.pdf
http://tinyurl.com/2656ppl – my evidence submission to the ICCER
http://tinyurl.com/6kttof6 – my complaint to the RS and its response.