Incomplete information and the right to know: Climategate’s long tail

10 June 2013 by Rosalind English

Stephen McIntyre v Information Commissioner (Environmental Information Regulations 2004) [2013] UKFTT 156 (17 May 2013) – read judgment and [2013] UKFTT 51 (7 May 2013) read judgment

These are the latest in a series of  freedom of information requests for disclosure of material from the UEA’s Climatic Research Unit (CRU).  These requests arose following the ‘climategate’ affair where hacked university emails suggested that individuals within CRU might have attempted to abuse the process of peer review to prevent publication of opposing research papers and evidence. Hence the sensitivity of the data to both requester and CRU, and the passions engendered on these appeals.

Both cases turned on whether disclosure could be denied on the basis of the public interest exception to the default rule that information should be disclosed, in other words the chilling effect on sharing ideas and unpublished research, and the potential distortion of public debate by the disclosure of incomplete material. 

UEA’s Climatic Research Unit (CRU) runs a research project into past climate data derived from “raw tree ring” chronologies, the ultimate aim of which is to obtain the most reliable chronologies of tree-growth and to make inferences about variations in climate for the last 200 years. This is the subject of appeal 156.

The appellant, a climate change agnostic, suggested that CRU had deliberately selected tree-ring data to produce a preconceived and erroneous picture of tree-ring variations in a particular region (the ‘2006 Chronology’).  He requested disclosure of the 2006 Chronology, accusing the UEA of publishing a report in 2008 that misinformed the public by failing to disclose relevant results that were adverse to the 2008 report’s findings.

UEA’s grounds for resisting the request and this appeal was that disclosure of the material  was ” a draft chronology inextricably bound up in the ongoing and evolving research, disclosure of which”would have “warped the climate change debate”. Had the  2006 Chronology been released at the time of Mr McIntyre’s request, they said, without the completed findings also being published,

 the chronology would inevitably have been misconstrued and misunderstood, and the public misled as to the scientific implications of the 2006 Chronology… If the chronology had been disclosed following the request, then even with suitable caveats, it would inevitably have been taken out of context and misused by individuals whose intention is to distort the climate change debate.

The appellant contended that the CRU, in seeking to show that twentieth century temperatures were unprecedented in the past thousand years, had failed to produce chronologies that gave contradictory evidence. Under the statistical policies aimed at preventing both “false positives” and academic fraud, the CRU should have had to disclose the 2006 chronology as a “failed manipulation”. The Commissioner upheld the UEA’s argument that this information fell into the public interest exception to the Environmental Information Regulations, stating that  disclosure of research in an incomplete or unfinished form could undermine and jeopardise the full value of the information and could also potentially prejudice the scientific rigour of ongoing climate change research as a whole.

The Tribunal rejected the appeal and upheld the Commissioner’s findings that at the time of the request the 2006 chronology related to material “still in the course of completion” within the exception to the regulations. As far as the public interest grounds for the exception to disclosure was concerned, the Tribunal accepted the Commissioner’s view that the requested information would not serve the public interest since it was incomplete. Any contribution to public debate would clearly be better served by waiting rather than “prematurely publishing data by virtue of an EIR request that would much more likely result in further confusion and fuel controversy in an area which is already both complex and controversial. Whilst the potential for misleading results from selection bias is very great in this area is research, the premature disclosure of incomplete material “could equally contribute to the public being misled”.

Earlier in May, the Tribunal rejected another appeal (appeal 51) by Mr McIntyre on similar grounds – see judgment. This time the information requested from UEA was a draft article that was still going through the peer review process, but which had already been submitted to the IPCC for possible referencing to their report. It had been sent to the CRU by its authors in the US with an email requesting that it not be passed on to others. The request was resisted by the university on incompleteness  grounds, in particular the  academic “safe space” ground that

If it became apparent to overseas scientists that sharing ideas and documents at the informal pre-publication peer discussion stage could lead to their public disclosure, then it is very likely that this would lead to the exclusion of UK scientists from such international peer groups.

Mr McIntyre argued that the relevant IPCC working group required that copies of unpublished literature cited in the First Order Draft be made available to interested reviewers, and that by submitting their article for use in the IPCC, the authors had consented to disclosure of the article.

The Commissioner, again, upheld UEA’s position that the requested information came within the Environmental Information Regulations exception to disclosure, and the Tribunal agreed. Whilst they accepted the appellant’s arguments that the provision of the article for use in the IPCC draft report was made with the tacit acceptance of the authors, they decided against him on the public interest grounds in favour of avoiding un-adopted positions being exposed to public scrutiny even after drafting is complete. Such would have a chilling effect the sharing of draft research in the peer review process and could misrepresent the authors’ final publicised position. Thus the public interest in maintaining the exception outweighed the public benefit of disclosing the material.

Regulation 12(4)(d) EIR inherently contained a public interest argument in favour of avoiding un-adopted positions being exposed to public scrutiny even after drafting is complete. This was so as to avoid public resources being expended in explaining or justifying draft documents or interim positions

Comment

The UEA is a regular participant in FOI/EIR proceedings and David Hart has posted on previous decisions both in favour and against disclosure of requested material. But in both these cases one gets the sense that the Information Commissioner and the Tribunal were anxious to protect academic proceedings in this controversial field from the public gaze.  It is hard to understand why it was necessary to strive so vigorously to fit the circumstances into the EIA public interest exemption. Surely the best way for UEA or any other institution to avoid potential embarrassment was simply to publish adverse results or papers when they first came to its attention, or in any event to cede to freedom of information requests when they arose? Certainly in the second case the Tribunal acknowledged that there was little difference between the draft article at the centre of the dispute and the final published version. So why continue to hide it?  And in the first case, chronologies are always work in progress. As such, they form part of the broad disclosure obligations on the part of publishing authors. The public interest is surely better served by scientists being called upon to explain and defend their finished public research rather than allowing them to withhold potentially contradictory evidence.

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Read more

• Who “holds” the working papers of the Climategate inquiry?
• A Chagossian double-bill: an environmental information contest and a touch of Wikileaks
• Hockeysticks: Climategate Unit told by Information Commissioner to produce weather data