the Air Vent

Because the world needs another opinion

UEA was Advised by ICO to Ignore FOI

Posted by Jeff Id on January 27, 2010

Jonathan Leake at The Sunday Times Revealed UK To Seek Change in FOI Law……. But that’s not the whole story.

Recently Johnathan Leake has been covering one story after another regarding the corruption of the IPCC process and results. Yesterday by email, he’s received and passed on a press release from the Norfolk police regarding the release of the Climategate emails . This breaking news is an official recognition by the police that not only was FOI law broken but it ABSOLUTELY will NOT be prosecuted and INSTEAD the information comissioners office intends to seek a change in FOI law to prevent future intentional abuse.

Graham Smith, Deputy Commissioner, said:

“Norfolk Police are investigating how private emails have become public.
The Information Commissioner’s Office is assisting the police investigation with advice on data protection and freedom of information.

The emails which are now public reveal that Mr Holland’s requests under the Freedom of Information Act were not dealt with as they should have been under the legislation. Section 77 of the Freedom of Information Act makes it an offence for public authorities to act so as to prevent intentionally the disclosure of requested information. Mr Holland’s FOI requests were submitted in 2007/8, but it has only recently come to light that they were not dealt with in accordance with the Act.

The legislation requires action within six months of the offence taking place, so by the time the action taken came to light the opportunity to consider a prosecution was long gone. The ICO is gathering evidence from this and other time-barred cases to support the case for a change in the law. It is important to note that the ICO enforces the law as it stands – we do not make it.

It is for government and Parliament to consider whether this aspect of the legislation should be strengthened to deter this type of activity in future. We will be advising the University about the importance of effective records management and their legal obligations in respect of future requests for information. We will also be studying the investigation reports (by Lord Russell and Norfolk Police), and we will then consider what regulatory action, if any, should then be taken under the Data Protection Act.”

If you need anything further please contact us.

Kind regards,

Gemma

ICO Press Office
020 7025 7580
icopressoffice@grayling.com
www.ico.gov.uk

Of course the statute of limitations for this law makes no sense. Bishop Hill recently blogged on the issue. People simply cannot be prosecuted for the British FOI law because by the time you find out about it, the moronic SIX MONTH statute of limitations has run out. There is no way the SOL was not intentionally made to take all the teeth out of FOI.

There is more than one problem here though. The ICO washes it’s hands above with the statement:

It is important to note that the ICO enforces the law as it stands – we do not make it.

Initially this post was going to go through the FOI emails and point out the collusion between scientists and government officials to block FOI and the fact that there is more than one law in the UK. But then I found in the emails this little beauty.

Email – 1219239172.txt

Keith/Tim still getting FOI requests as well as MOHC and Reading. All our FOI officers have been in discussions and are now using the same exceptions not to respond – advice they got from the Information Commissioner.

My bold of course. So it’s no wonder why the ICO is keen to avoid prosecution for FOI law. THEY ARE THE GROUP WHO RECOMMENDED IT!!

Unfortunately for Phil Climategate Jones, that’s not the only law that was apparently broken but again the bobbies don’t seem to care. If you steal a stick of gum from the seat of a car, how many different laws have you broken? The lawyers will tell you there’s a reason that there are so many layers of law. I’m unfamiliar with british law but in the US the law is so dense that it’s hard not to commit a felony before 9am.

Initially this had to do with IPCC issues, freedom of information requests don’t apply to an international organization such as the IPCC, but the IPCC has to do with climate… The solution was apparently to take a very wide view of what is IPCC business.

From email 1182255717.txt

1. Think I’ve managed to persuade UEA to ignore all further FOIA requests if the people have anything to do with Climate Audit.

Email – 1228330629.txt

> Ben,
> 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.
Once they became aware of the
> types of people we were
> dealing with, everyone at UEA (in the registry and in the
> Environmental Sciences school
> – the head of school and a few others) became very supportive. I’ve
> got to know the FOI
> person quite well and the Chief Librarian – who deals with appeals.
> The VC is also
> aware of what is going on – at least for one of the requests, but
> probably doesn’t know
> the number we’re dealing with. We are in double figures.
>
> One issue is that these requests aren’t that widely known within
> the School. So
> I don’t know who else at UEA may be getting them. CRU is moving up
> the ladder of
> requests at UEA though – we’re way behind computing though. We’re away
> of
> requests going to others in the UK – MOHC, Reading, DEFRA and
> Imperial College.
>
> So spelling out all the detail to the LLNL management should be
> the first thing
> you do. I hope that Dave is being supportive at PCMDI.
>
> The inadvertent email I sent last month has led to a Data
> Protection Act request sent by
> a certain Canadian, saying that the email maligned his scientific
> credibility with his peers!
> If he pays 10 pounds (which he hasn’t yet) I am supposed to go
> through my emails
> and he can get anything I’ve written about him. About 2 months ago
> I deleted loads of
> emails, so have very little – if anything at all.
This legislation
> is different from the FOI -
> it is supposed to be used to find put why you might have a poor
> credit rating !
>
> In response to FOI and EIR requests, we’ve put up some data -
> mainly paleo data.
> Each request generally leads to more – to explain what we’ve put
> up. Every time, so
> far, that hasn’t led to anything being added – instead just
> statements saying read
> what is in the papers and what is on the web site! Tim Osborn sent one
> such
> response (via the FOI person) earlier this week. We’ve never sent
> programs, any codes
> and manuals.
>

[snipped for space]
> Cheers
> Phil

And from email – 1210341221.txt

2. You can delete this attachment if you want. Keep this quiet also, but
this is the person who is putting in FOI requests for all emails Keith and Tim
have written and received re Ch 6 of AR4. We think we’ve found a way
around this.

On and on, note the subject in this email:

From: Michael Mann <mann@meteo.psu.edu>
To: Phil Jones <p.jones@uea.ac.uk>
Subject: Re: IPCC & FOI
Date: Thu, 29 May 2008 08:12:02 -0400
Reply-to: mann@psu.edu

<x-flowed>
Hi Phil,

laughable that CA would claim to have discovered the problem. They would
have run off to the Wall Street Journal for an exclusive were that to
have been true.

I’ll contact Gene about this ASAP. His new email is: generwahl@yahoo.com

talk to you later,

mike

Phil Jones wrote:
>
>> 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

The ICO’s position explained to Santer by Jones eml 1228922050.txt.

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.
Anyway requests have been of three types – observational data, paleo data
and who made IPCC changes and why. Keith has got all the latter – and
there have been at least 4. We made Susan aware of these – all came from
David Holland. According to the FOI Commissioner’s Office, IPCC is an
international organization, so is above any national FOI. Even if UEA holds
anything about IPCC, we are not obliged to pass it on, unless it has anything
to do with our core business – and it doesn’t!

So I thought I’d help the ICO deal with the complex issue of finding a different law which may have been broken. Perhaps something which has a statute of limitations longer than a five year old’s attention span. UPDATE: This next bit is more of a grumpy comment than anything so don’t take it too seriously.

I’m no lawyer but it seems possible that this link may be appropriate:

From this:

Offence: Statutory Conspiracy. Criminal Law Act 1977
Statutory conspiracy is defined by section 1 of the criminal law act 1977

Under section 1(1) if a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their
intentions, either -
(a) will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement, or
(b) would do so but for the existence of facts which render the commission of the offence or any of the offences impossible,

He is guilty of conspiracy to commit the offence or offences in question.

Accordingly, it is an offence to agree to commit any criminal offence even one which is tryable only summarily. However, by section 4 a conspiracy to commit a summary only offence can only be prosecuted by or with the consent of the director of public prosecutions.


43 Responses to “UEA was Advised by ICO to Ignore FOI”

  1. j ferguson said

    Jeff Id,

    Neither am I an attorney, but a prosecution for conspiracy to commit a crime whose statute of limitations has run out seems pretty unlikely, or for that matter even, in most cases, fair. What sense would it make to have a time limitation for prosecuting if it could be ignored by resorting to a conspiracy charge.

    At the same time, do we know when the clock starts? In some cases the clock starts with the “discovery” of the alleged crime, not the time of the alleged crime itself.

    Congratulation on all the recognition your excellent blog has received of late.

    How do you have time to earn your living? Don’t neglect those little lights.

  2. HotRod said

    Jeff, i think you’re off course when you say the law must be an ass on purpose. I believe, not abs sure, that the FoI Act itself contains no 6 month rule, but the nature of the offence falls under some other statute of limitations. Clearly it doesn’t work, but probably accidentally.

    the point is that it is, in effect, working. That they have been caught out means that they will now have to be squeaky clean, and there’s no need, in the bigger picture, to want Jones convicted and fined. (I am also unsure he would be able to delete his emails Mine are all backed up on company server, I couldn’t delete them if I tried).

    I like your conspiracy idea, as it states applies even to an offence “which is tryable only summarily”, which catches FoI offences.

  3. Jeff Id said

    The conspiracy thing was more of a point that there are other laws which were probably broken. The boys aren’t looking very hard.

  4. Jeff Id said

    o by the time the action taken came to light the opportunity to consider a prosecution was long gone.

    If they committed the action themselves, this statement is false.

  5. ClimateQuoter said

    The Brits seem to have it all messed up. Gordon Brown claimed,

    “…in just twenty-five years the glaciers in the Himalayas which provide water for three quarters of a billion people could disappear entirely.”

    Another scary glacier claim.

    http://climatequotes.com/2010/01/27/gordon-brown-claimed-glaciers-could-disappear-entirely-in-25-years/

  6. Peter of Sydney said

    The whole IPCC is fiction from top top to bottom. I can give dozens of examples. One example is the Medieval Warming period (MWP). The IPCC in true Orwellian spirit tried to re-write scientific opinion using the infamous and completely discredited hockey stick graphs that the MWP did not exist. Well, in fact the real scientific consensus around the world is that the MWP did exist and there’s no question that it was much warmer than today. Peer reviewed scientific papers are well founded and well documented on this subject. This alone should be enough to discredit the IPCC yet there are many more examples. The dam has burst and the truth will prevail. The IPCC will be placed on the scrap heap eventually. It can’t happen soon enough.

  7. ChrisM said

    The Last sentence is ominous “can only be prosecuted by or with the consent of the Director of public prosecutions” here is an article about Keir Starmer QC http://www.guardian.co.uk/world/2008/aug/01/humanrights.law
    So I would not hold your breath waiting guys.

  8. Steve McIntyre said

    #1. One law blog here says that governments “routinely” use conspiracy offences to extend statutes of limitations:

    The government routinely charges companies and individuals with conspiracy to violate the FCPA in place of or in addition to substantive FCPA charges. And, by charging a conspiracy offense, the government can effectively stretch the statute of limitations period well beyond five years.

    Here is a US case involving tax law where the statute of limitations on the offence by an individual has expired, but not for the offence of a conspiracy. The principles in UK law would be similar.

    Whether they elect to pursue such avenues is an entirely different question.

  9. JohnH said

    There is a precendent that has been set recently in the UK. The MP’s got caught out stretching the rules on what they could claim for expenses. A number of them tried the following defence ‘I checked with the Claims Office before entering the claim and they told me it was within the rules’ . This defence has been rejected on the basis you cannot rely on an offical giving advice, if the advice was wrong you are still liable for breaking the rules. So if the FOC told the CRU the defence they were using was correct then if that advice was wrong its the CRU left carrying the can not the FOC.

  10. j ferguson said

    Re: #8,
    The apparent evidence of a conspiracy certainly abounds and includes what seem to these ignorant eyes, all the necessary components including steps taken to advance an illegal act.

    It seems very much to the point that we have what appears to be an egregious violation of the FOI legislation with likely better-than-usual evidence. If the powers-that-be “want” this legislation to be effective then they must prosecute or contend with the conclusion that the act was never meant to be taken seriously.

    In other words, prosecution may be driven by the need for FOI to be effective more than the conspicuous bad behavior of the climatic miscreants.

  11. DaveJR said

    “Keith/Tim still getting FOI requests as well as MOHC and Reading. All our FOI officers have been in discussions and are now using the same exceptions not to respond – advice they got from the Information Commissioner.”

    While this is damning at face value, I believe it is unlikely that the Commissioners office was appraised of the true situation after the officers at UEA had been “convinced” of the need to reject requests. Most likely they were looking for excuses that would apply, *if* they were true.

  12. Atomic Hairdryer said

    Getting the UK law changed would be a good start. But CRU is in the UK, and we have many laws. One of which is more wide ranging than FOI and specifically for environmental information.

    http://www.statutelaw.gov.uk/content.aspx?activeTextDocId=945378

    CRU may have tried using the Part 3 exemptions given some of the claims sound familiar, ie harming international relations, intellectual property etc.

  13. lucia said

    Jeff–
    Do you have a direct link to the source material? The link just sends me to a list of Leake’s articles. Is this letter in a comment? A blog? Where? I want to read the surrounding stuff!

  14. Jeff Id said

    #13, Unfortunately the info came by email. I couldn’t find his article when I wrote this up.

  15. Carrick said

    I’m pretty sure the FOI guy at UEA has nothing to to with ICO. If it’s like the US, it’s typically some tenured professor with no funding and no legal training. ICO is an oversight organization within the British government, if I’m not mistaken, and has nothing do to with the FOI process at UEA (other than to oversight after the fact).

  16. Jeff Id said

    Carrick, Steve made the same point at CA. But there are two emails. In the second one it’s more clear who they’re talking about.

    According to the FOI Commissioner’s Office, IPCC is an international organization, so is above any national FOI.

  17. Steve McIntyre said

    They came up with this exemption in the John Mitchell FOI – after trying two untrue excuses, they got one that “worked”, though one that is hardly consistent with IPCC as an “open and transparent” organization.

    There is an interesting legal issue in connection with the FOI requests re Wahl and Ammann comments. Briffa and Wahl were intentionally evading IPCC policies. Within days of Overpeck telling Briffa that they haad to be “squeaky clean” on review comments, Briffa and Wahl exchanged burn-after-reading emails evading the IPCC process. It’s not obvious to me that an attempt to evade IPCC process would qualify for the IPCC exemption. It will undoubtedly come up in the PArliamentary Inquiry.

  18. steven mosher said

    Ditto what Steve said.

    I’m trying to find a legal blogger who will tackle that issue. Its a truly remarkable loophole.

  19. Tilde Guillemet said

    Criminal Conspiracy in the UK changed totally in 1977 from Common Law to Statute law and in doing so abolished all forms of conspiracy except for fraud and offences against public decency.

    Conspiracy law does not apply in this case.

    5 Abolitions, savings, transitional provisions, consequential amendment and repeals

    (1)Subject to the following provisions of this section, the offence of conspiracy at common law is hereby abolished.

    (2)Subsection (1) above shall not affect the offence of conspiracy at common law so far as relates to conspiracy to defraud,

    (3)Subsection (1) above shall not affect the offence of conspiracy at common law if and in so far as it may be committed by entering into an agreement to engage in conduct which—

    (a)tends to corrupt public morals or outrages public decency; but

    (b)would not amount to or involve the commission of an offence if carried out by a single person otherwise than in pursuance of an agreement.

  20. […] January, 2010 (11:17) | politics Written by: lucia Jeff Id posted interesting email forwarded to him by Jonathan Leake. Jeff’s made a number […]

  21. PhilJourdan said

    #16:

    According to the FOI Commissioner’s Office, IPCC is an international organization, so is above any national FOI.

    Which makes it all the more scary since the output of the IPCC is being used to make laws in many nations.

  22. Mark T said

    Though I’m not a legal expert*, any business conducted by a government employee on government time, even if it is done for the IPCC, should still qualify for FOI.

    Mark

    *in spite of recently staying at a Holiday Inn, of course.

  23. Kon Dealer said

    I also posted this at WUWT

    Chris Holland was not the only one to make a FOI request for the CRU data.
    I did as well.
    The ICO and the FOI Law is a shambles- only yesterday I was on the phone to them about to enquire about this 6 month expiry issue. I was passed from one person to another. No-one was apparently familiar with the FOI Act!

    I was eventually asked to put my question about the 6 months expiry issue in writing! (which I have done).

    I think I’m pretty sure what the answer will be…..

    Helpful suggestions invited!

  24. Carrick said

    Mark T:

    *in spite of recently staying at a Holiday Inn, of course.

    Silly Rabbi. You need to stay at Holiday Inn Expresses!

  25. Kon Dealer said

    I think this explains waht we are up against

    Section 77 of the Freedom of Information Act 2000 creates the “offence of altering etc. records with intent to prevent disclosure”.

    The six month time limit on a prosecution derives from the “type of offence” specified by subsection 3: “A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 5 on the standard scale.”

    A “summary offence” is triable in the Magistrates Court (with no jury) and Section 127 of the Magistrates Court Act 1980 applies.

    Section 127(1) of the Magistrates Courts Act 1980

    127 Limitation of time.
    (1)Except as otherwise expressly provided by any enactment and subject to subsection (2) below, a magistrates’ court shall not try an information or hear a complaint unless the information was laid, or the complaint made, within 6 months from the time when the offence was committed, or the matter of complaint arose..
    (2)Nothing in—.
    (a)subsection (1) above; or.
    (b)subject to subsection (4) below, any other enactment (however framed or worded) which, as regards any offence to which it applies, would but for this section impose a time-limit on the power of a magistrates’ court to try an information summarily or impose a limitation on the time for taking summary proceedings,.shall apply in relation to any indictable offence.
    (3)Without prejudice to the generality of paragraph (b) of subsection (2) above, that paragraph includes enactments which impose a time-limit that applies only in certain circumstances (for example, where the proceedings are not instituted by or with the consent of the Director of Public Prosecutions or some other specified authority)..
    (4)Where, as regards any indictable offence, there is imposed by any enactment (however framed or worded, and whether falling within subsection (2) (b) above or not) a limitation on the time for taking proceedings on indictment for that offence no summary proceedings for that offence shall be taken after the latest time for taking proceedings on indictment.

  26. The 1977 act is valid and it is open to 3rd parties from secondry states to report crime

    F11A Conspiracy to commit offences outside the United Kingdom

    http://www.opsi.gov.uk/RevisedStatutes/Acts/ukpga/1977/cukpga_19770045_en_1

    enquiries@norfolk.pnn.police.uk

    However, you will get the robocop reply….Thank you for your contact.
    The message you have sent us has been received in the Contact & Control Room.
    A reply will be sent to you ASAP.

  27. […] Jeff Id posted interesting email forwarded to him by Jonathan Leake. Jeff’s made a number observations of his own. The line that jumped out at me was this: […]

  28. The ‘Ghosh Test’

    In other words, a court has ruled that the test for dishonesty must be both subjective and objective. As a result, we have ‘the Ghosh test’, which jury must consider before reaching a verdict on dishonesty :

    Was the act one that an ordinary decent person (normally considered to be the ubiquitous ‘man on the top deck of a Clapham omnibus’) would consider to be dishonest (the objective test)? If so :
    Must the accused have realised that what he was doing was, by those standards, dishonest (the subjective test)?
    It is not essential for a person to admit that they acted in a way that they knew to be dishonest, it is enough that they knew others would think their behaviour was dishonest, or that they thought that what they were doing was ‘wrong’

  29. […] How is it a whitewash??? Ask Jeff Id. […]

  30. T.J Arnold. said

    What a surprise!
    This bent government of ours dismays me not one iota.
    It was never gonna happen, one arm of gov’ prosecuting another – to get an idea ( of British fudge Nu -Labour white-wash), just drop in on the Chilcott inquiry.

  31. Genghis said

    Has the freedom of information request been fulfilled? If it hasn’t been fulfilled aren’t they continuously in violation?

  32. […] as time goes on and the green cabal comes under scrutiny more and more criminal activities are being exposed. Yet no criminal prosecutions have […]

  33. John McLean said

    I suggest that the leaked CRU files were in fact an accidental release of files that were to be hidden away from any FOI requests. Details of my thinking can be found here.

  34. PaulM said

    Jeff, an important point is that the guy in charge has changed.
    From the ICO site:
    “Christopher Graham became Information Commissioner in June 2009. ”
    The previous Commissioner was called Richard Thomas.
    So there may have been a toughening of attitudes from “Here’s how you can get around the rules” to “the rules are the rules”.

  35. Atomic Hairdryer said

    Re: John McLean

    I’d say the release method was unlikely given the Internet uses completely different protocols for email and FTP, so they’re fundamentally incompatible. It also doesn’t explain the alleged RC hack, or how the file was then communicated. The mistyped recipient would need to understand what they had and the significance.

  36. jazznick said

    Lord Lawson’s GWPF launch appeal for public enquiry.

    http://wattsupwiththat.com/2010/01/28/lord-lawson-calls-for-cru-inquiry-to-be-held-in-public/#more-15788

  37. windansea said

    http://www.washingtonpost.com/wp-dyn/content/article/2010/01/27/AR2010012704502_pf.html

    A politically divided Securities and Exchange Commission voted on Wednesday to make clear when companies must provide information to investors about the business risks associated with climate change.

    The commission, in a 3 to 2 vote, decided to require that companies disclose in their public filings the impact of climate change on their businesses — from new regulations or legislation they may face domestically or abroad to potential changes in economic trends or physical risks to a company.

  38. Mark T said

    Carrick said
    January 27, 2010 at 4:58 pm

    Silly Rabbi. You need to stay at Holiday Inn Expresses!

    Ooooooh… good catch! That explains it ALL! ;)

    Mark

  39. Mark T said

    For the record, I did stay at the Holiday Inn in Frisco, CO, recently. It’s a dump @ $129/night. The price you pay for staying in a ski town, I suppose.

    Mark

  40. […] UEA was Advised by ICO to Ignore FOI Jonathan Leake at The Sunday Times Revealed UK To Seek Change in FOI Law……. But that’s not the whole […] […]

  41. […] by Jeff Id on January 31, 2010 I made the point recently that the ICO’s admission that a crime had been committed followed by the quick statement that […]

  42. Geoff Sherrington said

    19.Tilde Guillemet said
    January 27, 2010 at 1:00 pm
    Criminal Conspiracy in the UK changed totally in 1977 from Common Law to Statute law and in doing so abolished all forms of conspiracy except for fraud and offences against public decency.

    Are you able to comment more on fraud? To me, the attempts to encourage others to ignore the FOI Act were fraudulent.

  43. Geoff Sherrington said

    33.John McLean said
    January 28, 2010 at 6:04 am
    “I suggest that the leaked CRU files were in fact an accidental release of files that were to be hidden away from any FOI requests. Details of my thinking can be found here”

    Within a week of the exposure I blogged a similar possibility, with slightly different mechanisms in mind. To me, the collection reads like it was assembled to be destroyed. However, competent hackers are said to know of certain properties of certain sites in some Russian cities, but I do not mix with these competent hackers so I cannot reveal what they mean. Try St Petersb for an active high level hackers hub.

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