UK Human Rights Blog

Many will remember the batch of e-mails hacked in 2009 that caused delight in climate change sceptic circles (see this example from James Delingpole), and considerable embarrassment to UEA; some of it concerned the famous or infamous hockeystick graph (see below) showing temperature change over the last 1000 years.

This environmental information case is the sequel. And, as we shall see, strange is the territory into which the right to information leads us: so far I have posted on pearls and badgers and oilseed rape, bees, lettuces and mobile phone masts. Now we are into global weather data going back to 1850.

This is because, last week, the Information Commissioner published a ruling telling UEA (and in particular the Climatic Research Unit there) to release some weather data it had put together from all over the world. The successful applicant was Professor Jonathan Jones, an Oxford physicist (albeit not a climatologist) who is described as a climate change agnostic. The ruling is the latest round in a battle which has raged for some years over the transparency and robustness of the data used by the CRU in its work on man-caused global warning. The importance of the CRU’s work is reflected in its widespread use in the reports of the IPCC.

Not a breath of this background emerges from the anodyne ruling of the Information Commissioner, though one can just about detect a touch of general scepticism in the IC’s view on UEA’s attempt to claim the benefit of of various exceptions to disclosure – particularly if one remembers the background.

First, the ruling

…before we get to the highly politicised background. The CRU resisted production of the data (which everyone agreed was environmental information) on three grounds, namely that

(i) it was publicly available and easily accessible (reg.6)

(ii) disclosure would have an adverse on international relations (reg.12(5)(c)

(iii) disclosure would adversely affect intellectual property rights and/or UEA’s interests (reg.12(5)(c) and (e).

well,

the first seems weak in the extreme – it would have taken the use of 4 bespoke computer programmes to stitch together the various component parts into something which approached the data found in the CRU’s database. It also cuts right across (iii), the claim for intellectual property rights, which is all about precisely the opposite to open-access information. Not entirely surprisingly, the IC dismissed the intellectual property claim on the basis that the CRU had not shown that it had any real prospect of commercially exploiting the material. And this is where the tension between argument (i) and (iii) manifests itself, given that 85.5% of the data was already to be found on a specific website. The CRU’s argument that it had specific database rights was rather blunted by the fact that the request had been for a specific dataset already a year old at the date of request – and therefore not up-to-date. To come within the exception, it is not enough to show that release would be in breach of an intellectual property right, but that it would cause some harm to the rights-holder.

Enigma of the weather

Weather stations all over the globe measure temperatures daily. All open stuff, you might think. But they are all tied into governments and agencies who want to licence and profit from the use of this information. This is the background to the strongest ground of objection, namely that the was likely to be an effect on international relations.This was because the data had been obtained from national meteorological services (NMSs) all around the world, almost invariably on terms that prohibited onward transmission of the data by the CRU as its recipient. The CRU feared that if it released the information in breach of these terms, it would not be trusted with further information in the future. It did its best to obtain the consent of the various NMSs. However, some 60% either did not respond or did not give a final answer in their response – some because they may not have understood the request, as it was sent in English only. Only one NMS (Trinidad and Tobago) refused release of the data.

The IC in the end (para.78) decided that, whilst there was a plausible case about the possibility of an effect on how datasets are supplied and exchanged, this was not enough; he must be convinced that disclosure “would” have such an effect, in that a significant proportion of the NMSs would react strongly to disclosure. He also pointed out that many NMSs in Europe would be bound by the Aarhus Convention and the EU Directive on public access to environmental information – so, if push came to shove, they, the NMSs, could themselves have been ordered to release this data in their own countries. Upshot – the IC was being asked to carry out a highly speculative exercise on the likelihood on any effect, and remained unconvinced on the evidence.

A whole bunch of background

But by the time of this ruling there was quite a history. The saga is excellently covered in a series of posts by Fred Pearce on the Guardian website. As long ago as 2002, a climate sceptic and mathematician, Steve MacIntyre, asked Professor Phil Jones of CRU for a batch of weather data similar to that the subject of this ruling.  More and more requests followed. These were picked up in some of the leaked e-mails; hence in 2007 Prof. Phil Jones was telling a fellow scientist that he thought “…I have managed to persuade UEA to ignore all further F[reedom]of]I[nformation] requests if the people have anything to do with Climate Audit.” – MacIntyre’s website. In December 2008, more of the same from this Prof Jones: “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 [Climate Audit] was all about. Once they became aware of the type of people we were dealing with, everyone at UEA … became very supportive.”

Like all such disputes, with mutual mistrust, it escalated. UEA, a well-recognised centre of research, were deluged with requests, and most of them were turned down. By the end of 2009, 105 FOIA/EIR requests had been made about CRU data. UEA refused 77, accepted six in part, had 11 outstanding, and had only 10 released in full. One was withdrawn. In a burst of activity, between 24 and 29 July, the CRU received 58 requests from McIntyre and his affiliates.

So, what is the forecast?

Indeed it was in this short period of 6 days in 2009 that Prof Jonathan Jones made the current request. It was artfully formulated; he wanted weather data which the CRU had sent to Georgia Tech between 2007 and 2009. The art was in that this was data which CRU was sharing with fellow climate change scientists - so, Prof J.Jones was saying, why not share it with me and other climate change sceptics.

I said at the beginning of this post that the ruling was anodyne – all the background was suppressed out of the ruling. This is because freedom of information rules ignore the interests and motives of the applicant.  No matter how sensible or crazy the applicant is, the IC just has to focus on  the public authority and its reasons for refusing disclosure. The IC is however only human and one wonders whether he really found it possible to ignore all this background when weighing up UEA’s reasons.

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Read more

•  Pearls and badgers - location, location, location
• Oilseed rape, bees, lettuces and mobile phone masts
• Enemy of the people – what price water information