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

10 June 2013 by

ImageVaultHandler.aspxStephen 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to the default rule that information should be disclosed, in other words the chilling effect on sharing ideas and unpublished research, and the potential distortion of public debate by the disclosure of incomplete material.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.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Read more

3 comments


  1. Steven Price says:

    I agree with Rosalind’s comment. I’m not a climate change sceptic, and I have some sympathy for the UEA given its experiences. But the Commissioner and Tribunal should never accept an argument for withholding that’s premised on the public’s inability to understand the information, the fact that the information may just have been a stepping stone in the process, or that it may be used to distort debate. Those are the very antithesis of the reasons for transparency legislation.

  2. dw says:

    The conspiracy theorists will have a field day with this decision. Surely it would have been better to just “publish and be damned”!

  3. Stop fear mongering!

    The worst crisis imaginable needs “certainty” not “maybe”.
    Do you remaining believers even know what the scientists agree on? It’s not that climate change WILL be a climate crisis, its agreement that it only “might” be a climate crisis.

    Science agrees that climate change is “real and happening and could cause a crisis.” Never have they said it is as inevitable as they love to say comet hits are. A climate crisis “IS” a comet hit of an emergency so how close to unstoppable warming will they lead us before they say the worst crisis imaginable is unavoidable?

    28 years of “maybe” proves it “won’t be” a crisis and real planet lovers are glad not disappointed a crisis was exaggerated. The rest of you losers just hated humanity more than you loved the planet.

Comments are closed.

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus coronavirus act 2020 costs costs budgets Court of Protection covid crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Facial Recognition Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges nuisance Obituary parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy Professional Discipline Property proportionality prosecutions Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania round-up Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence shamima begum Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: