Holland v. Information Commissioner & University of East Anglia, First Tier Tribunal, 29 April 2013 – read judgment
In 2009 someone hacked into e-mails belonging to the Climate Research Unit at UEA and leaked them widely. Climate change sceptics whooped with delight because they thought that the e-mails showed attempts to suppress or gerrymander climate data (see e.g. this example from James Delingpole with some of the ticklish e-mails, and for more background, less tendentiously put, my post on an earlier UEA case). And the CRU data was important; it had made its way into the highly influential IPCC reports.
UEA understandably thought that something needed doing in response to the leaks, and commissioned an inquiry, the Independent Climate Change E-mail Review. ICCER reported in 2010: see here for the report and here for a short summary. ICCER concluded that there had not been any systematic manipulation of data, though there had been a lack of openness by CRU in dealing with requests for information.
This recent decision concerns a campaigner’s efforts to get copies of the working papers of the Review. The First Tier Tribunal (as the Information Commissioner before it) refused to order UEA to produce them. UEA did not “hold” them, ICCER did. And ICCER was not a public authority capable of being ordered to produce them.
This is not the first time, by any means, that the UEA came across the Environment Information Regulations (EIR) – derived from the Aarhus Convention and the EU Directive on public access to environmental information. When the leaks occurred, a lot of requests for further information were put in (105 in 2009 alone) and some of the criticism of UEA in ICCER’s report was about how the UEA responded to these requests. More recently, the Information Commissioner published a ruling telling CRU to release some weather data it had put together from all over the world.
This time, the issue was simple to state, though not so simple to answer. UEA commissioned the Review. The Review held information. But did UEA “hold’ that information?
The question is set by reg.3(2) of the EIR: information was held by a public authority if it is in the authority’s possession and has been produced or received by the authority, or is held by another person on behalf of the authority. It matters, of course, because if ICCER held it on its (ICCER’s) own behalf, UEA could not be ordered to release it up to third party requests.
There is a certain amount of learning on this test, helpfully set out at - of the ruling. The test is not whether the public authority controls or possesses or owns the information in question, simply whether it “holds” it – an ordinary English word.
The appellant’s case was pretty uncompromising:
the ICCER was a sham, and that it was always under the control of the UEA, and that it was set up to exculpate its scientists of any criminal offences and protect its reputation.
He pointed to one of the Review team being an ex-UEA academic (there for 18 years), and the way in which the appellant’s submission had been redacted (to avoid defamatory material, said ICCER). So, the appellant argued, the ICCER held them for UEA, and the documents could be obtained from UEA.
The Information Commissioner and UEA rejected this. The whole purpose of the inquiry was an independent review of the e-mail saga and it was set up so that its chair (Sir Muir Russell, ex civil servant and Glasgow University Vice-Chancellor) could decide exactly how to run it. He chose the team, and then went about directing the Review.
This account was accepted by the FTT. They heard evidence from Sir Muir and Professor Edward Acton, the Vice-Chancellor of UEA, and it is evident that they were cross-examined hard on the sham/whitewash theory. The FTT did think it surprising that there was no written contract between UEA and Sir Muir, which might have been expected to explain the basis upon which the documentation was held after completion of the review – this was despite Sir Muir having his own lawyers in place. Equally, the FTT thought it may have been unwise to appoint the ex-UEA academic as part of the reviewing team. But there was ultimately no evidence that the ICCER was effectively controlled by UEA, and hence ICCER (in effect Sir Muir) held the documents, and UEA did not.
It is a little odd that a public authority can commission an inquiry of this sort, pay for it, and use its results, in this case, broadly to clear its name, and then not be able to produce documents which, had the inquiry been internal, it would have been required to produce to the requester. The appellant put it thus:
a public authority can simply outsource any embarrassing environmental matters to casual employees and private companies who might do the authorities’ bidding and then destroy any inconvenient information that the authority wishes to ignore.
Well, no, it cannot, or it can only do so without being subject to the EIRs where the inquiry is truly independent of the public authority. And if the inquiry is not truly independent of the public authority, it will not have the credibility which it needs.
So the FTT dismissed the appeal as matters then stood. But they were not entirely happy that things should always remain as they are. Their parting shot was
It may be that the information should be held by the UEA and there may be good reason why, barring anything provided in confidence, the information should be passed to the UEA to form part of its historical records. Were that to happen, then in the future, the information may be held by the UEA.
The irony was not lost on them that the UEA witness was a historian by specialism who would ordinarily have been deeply interested in how documents would be kept and dealt with after completion of the review.
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