the Air Vent

Because the world needs another opinion

Hiding Future Declines

Posted by Jeff Id on October 17, 2011

This is kinda huge — Jeff

———-

BREAKING: An IPCC backchannel ‘cloud’ was apparently established to hide IPCC deliberations from FOIA.

 

CEI has learned of a UN plan recently put in place to hide official  correspondence on non-governmental accounts, which correspondence a federal inspector general has already confirmed are subject to FOIA. This ‘cloud’ serves as a dead-drop of sorts for discussions by U.S. government employees over the next report being produced by the scandal-plagued IPCC, which is funded with millions of U.S. taxpayer dollars.

By Christopher Horner, CEI.org for WUWT

Although this is seedy and unlawful at any time, it also goes in the ‘bad timing’ file. Or it’s good timing, depending on one’s perspective.

Just as a brand new book further exposes the UN’s Intergovernmental Panel on Climate Change (IPCC)(which scam I dissected here, and in more disturbing detail here), and on the heels of the weekend surprise of a 2005 memo showing President Obama’s cooling/warming/population zealot of a ‘science czar’ John Holdren is the kind of guy Mitt Romney turns to to develop his ‘environmental’ policies, we’ve exposed the Obama administration and IPCC have cooperated to subvert U.S. transparency laws, run domestically out of Holdren’s White House office.

——

CEI reminds OSTP that this practice was described as “creat[ing] non-governmental accounts for official business”, “using the nongovernmental accounts specifically to avoid creating a record of the communications”, in a recent analogous situation involving lobbyist Jack Abramoff. CEI expects similar congressional and media outrage at this similar practice to evade the applicable record-keeping laws.

This effort has apparently been conducted with participation — thereby direct assistance and enabling — by the Obama White House which, shortly after taking office, seized for Holdren’s office the lead role on IPCC work from the Department of Commerce. The plan to secretly create a FOIA-free zone was then implemented.

See the rest at WUWT


122 Responses to “Hiding Future Declines”

  1. Mark T said

    You guys (tAV, CA, WUWT, etc.) need a cateogry “you can’t make this shit up.”

    Mark

  2. Ted said

    I thought big socialist governments had the right to pull this kind hide anything they want?
    After all we the people are nothing but an inconvenience to their goals and aspirations…

  3. lucia said

    This is (almost) unbelievable.

  4. M. Simon said

    More inconvenient truth.

  5. Craig Loehle said

    This just makes more convenient the informal practice of using gmail etc.—HOWEVER this does not get around the fact that they are doing IPCC work as part of their official (in most cases government, in other cases university) jobs. They are given time to do this work by the gov. Any communication channel they use, it is still for work. Doing official business in untraceable ways? Isn’t that against regs?

  6. dfbaskwill said

    “This is a big, f***ing deal.” to paraphrase our Veep.

  7. stan said

    This is easy to believe and easy to understand. They are saving the earth. What could possibly be more moral or ethical than that? And they are doing battle with nasty, rotten deniers — the ultimate in evil. If the evil deniers are using the rules to harm the crusaders or the cause, then obviously morality and ethics demand that a way must be found around the rules.

    Many of these same people are already in a similar war in American politics. As the good guys, they face Republican opponents who are hate-filled, mean-spirited, racist, sexist, homophobes bent on destroying the environment and exploiting workers. In the face of such evil, morality and ethics require doing whatever it takes to win. What. Ever. It. Takes — Acorn’s phony registrations, George Soros’ astroturf machine, stuffing ballot boxes, Obama’s slanders — just win baby. The evil that is the opponent justifies anything.

  8. Eric said

    “Transparency and the rule of law will be the touchstones of the presidency”
    Obama

  9. Eric said

    http://www.whitehouse.gov/the_press_office/TransparencyandOpenGovernment/

    uff da

  10. #5
    “This just makes more convenient the informal practice of using gmail etc.”
    Actually, it seems to be the more formal practice of using IPCC email accounts for IPCC work. It’s an incredible beatup.

    “Doing official business in untraceable ways? Isn’t that against regs?”
    Which regs exactly? I noted at WUWT the Bush Admin practice of using RNC accounts (on a massive scale) for official business (server gwb43.com). There was a fuss about that because it seemed to breach the Presidential Records Act. I don’t think that applies here, nor the Hatch Act, which were the only other “regs” mentioned.

    Anyway, it’s very unlikely that using IPCC accounts makes them untraceable. Like all communications in business, they just aren’t available on demand to anyone who asks.

  11. Jeff Id said

    Any IT guys who would like to explain the problems for Nick?

  12. lucia said

    Nick

    Actually, it seems to be the more formal practice of using IPCC email accounts for IPCC work. It’s an incredible beatup.

    The complaint alleges OSTI (a federal agency under the executive) employees using channels external to OSTI to do OSTI work for which they are paid by OSTI (i.e. the federal government.)

    I don’t know where you get the idea that CEI has complained about IPCC employees using IPCC email accounts to do IPCC work.

  13. lucia said

    Nick

    Anyway, it’s very unlikely that using IPCC accounts makes them untraceable. Like all communications in business, they just aren’t available on demand to anyone who asks.

    CEI is asking for the OSTP records not IPCC records.

  14. #12, Lucia
    I don’t know where you get the idea that CEI has complained about IPCC employees using IPCC email accounts to do IPCC work.”

    It’s hard to tell with the hysterical rhetoric. But this seems to be the key claim:

    “And so, by its own acknowledgement, the IPCC has now created electronic fora to avoid application of national FOI laws, if without change to the legal considerations making these records subject to FOIA or the Presidential Records Act.”

    Which seems to be pretty much saying that they created IPCC e-mail accounts for people to use.

    “The complaint alleges OSTI (a federal agency under the executive) employees using channels external to OSTI to do OSTI work for which they are paid by OSTI (i.e. the federal government.)”

    Well, allegations from Chris Horner seem to be dime a dozen. But would you like to quote that allegation? And any supporting evidence you are aware of?

  15. Layman Lurker said

    “It’s hard to tell with the hysterical rhetoric.”

    Tut tut Nick.

  16. Lucia #13
    CEI is asking for the OSTP records not IPCC records.

    Yes, and there’s no indication that he’s not gettin g them. But the headline for this post is:
    “An IPCC backchannel ‘cloud’ was apparently established to hide IPCC deliberations from FOIA.”

  17. Mark T said

    Ah, yes, after the cheerleader was quickly outed at WUWT (hehe, pull your head out of your ass for once, classic… though the red herring notes were better at noting the logic fail), there was no choice but to come over here in search of a potentially friendlier audience. At least, there isn’t as much traffic to shut out the obvious fail. How on earth can a PhD mathy type be so desperate he needs informal fallacies to make a point?

    Mark

  18. Carrick said

    Mark T, this was my favorite comment.

    “The other is the IPCC using IPCC accounts for IPCC business.”

    It is a shame to hear someone so intelligent and creative make such a lame argument, and it’s so disappointing.

    The IPCC is the public’s business.

    It belongs to us. It is accountable to us. It lives to serve us. It has no other purpose.

    Nick must like things that pose as science that aren’t really science.

    I”m really eff’ing disgusted right now.

  19. Mark T
    “to come over here in search of a potentially friendlier audience”

    I have no expectation of a friendly reception. But nonsense beatups bother me.

  20. Carrick said

    NIck:

    But nonsense beatups bother me

    Actually, this latest debacle only serves as a reminder for the complete lack of transparency that has come to be the norm in the formation of these “consensus reports”.

    At this rate, the next report will be throwaway sh*t.

    Go ahead, Nick. Tell me how I have zero experience dealing with Geneva-based organizations and their machinations. Dare you.

  21. steve fitzpatrick said

    Open public meetings, open correspondence, and open discussions would solve the problem. What do they think they need to hide? How can they imagine secrecy about a globally important issue is a good thing?

  22. Carrick said

    SteveF, it’s precisely because they are associated with UN that is the problem. That whole organization is corrupt from top to bottom with an utter lack of transparency and a complete thumbs of to capricious decision making.

    It absolutely has to be moved if any credibility is to be established for this process.

    It’s unfortunate that people like Nick are so busy nit-picking language choices on the part of critics that he doesn’t have any energy left to consider whether these policies are even reasonable from the beginning.

  23. This sort of thing really gives one confidence that the IPCC’s Data Distribution Center (DDC) will make the real data available regardless of what it may show!

    http://www.ipcc-data.org/

    After all, these people are totally honest, transparent and trustworthy, quite unlike the great unwashed public.

  24. Carrick said

    Gallop, my biggest problem isn’t even with public access to the deliberations… which I believe needs to be there too. It’s the cutting out of even climate scientists from access and input to the “consensus statement”.

    Call it “pointless.” The year the IPCC wrote a rulebook that predestined the organization to obscurity. Some will say “about d*mn time!”

  25. Carrick #24,
    “It’s the cutting out of even climate scientists from access and input to the “consensus statement”.”
    That just isn’t true. Here is the workflow diagram of the process. The confidential lead author forums are part of the two draft preparation stages. Each is followed by an expert review phase. Lots of people join in at that stage.

    You can’t have everyone’s fingers on the keyboard. Somebody has to actually be given the task of writing something.

  26. j ferguson said

    Nick #25,
    I just got through reading in Laframboise’s (excellent and very clear) new book that the “summary of summaries” was “edited” word by word in a plenary session from which the scientists were excluded. It doesn’t show in the chart you reference, but is apparently the executive summary that is likely the only part of the AR’s read by policymakers.

    If I’ve misunderstood what I read, it’s ok to point this out.

  27. JF #25
    I can’t comment on what you’ve read. Plenary sounds like a lot of people. Who was there?

    The SPM comes with a long list of scientist authors.

  28. j ferguson said

    Nick, I need to extract the ref from my Kindle version of Donna’s book to make it succinct, and hopefully correct.

  29. Mark T said

    It’s unfortunate that people like Nick are so busy nit-picking language choices on the part of critics that he doesn’t have any energy left to consider whether these policies are even reasonable from the beginning.

    That’s sort of the intent of the red herring, no? This is not unlike the pea under the thimble argument so often noted by Steve M. Distract the naysayers with irrelevancies in hopes they forget about the true issue.

    Mark

  30. Mark and Carrick,

    I’m not nit-picking language choices (where?). This post is about something (anyone know what?) that the IPCC is supposed to have done. Well, Lucia says that it’s actually OSTI, but then the claimed offence is even more mysterious. My assertion is that the IPCC has simply set up an email facility (or equivalent) and asked that people on IPCC business use it. A perfectly normal business practice. And yes, they probably wanted to avoid a repetition of the email exposure at UEA. They might even want to avoid entanglement with the myriad FOIA systems around the world, being not themselves subject to FOIA.

    Jeff’s suggestion of #11 has had no response.

  31. Jeff Id said

    #30, I’m grumpy and don’t want to play stupid games today. The cloud is a separate set of servers accessible only to UN personnel likely in ‘international’ territory. I’d be surprised if it wasn’t. You can work out the rest.

  32. Neil said

    But Nick, why would they wish to avoid an email exposure if they are to all intents a public body, doing a collection of government’s work? Why should a government’s employees be able to by-pass the collective safeguards that have been put inplace specifically to allow transperancy of government? Irrespective of the actual email structure used, my experience would be that the emails would be caught anyway (I have no experience in the US system) for govenment employees, unless they deliberately withheld them. It is easy to struture a request for all emails including the use of private/non-government addresses and the respondent would then need to argue why they shouldn’t/can not be disclosed.

    See Nick the big problem here is what I like to call a perception-reality discontinuity. The perception is based on past practice that the IPCC is up to something, the reality may be that they are just trying to be efficient. The only way to break a cycle like this is to be overly transparent otherwise a conspiracy is always assumed. For a commercial business this is painful and generally only used for product failure/PR issues. For what is effectively a goverment body this maybe a pain, but what is there to hide? There is no safer place than the the truth to speak from.

  33. Carrick said

    NIck, you are focussing on the small issues such as the degree to which Horner’s language correctly describes how they avoid public scrutiny.

    I didn’t even read Horner’s comments, I read what the IPCC said, and that’s where I got pissed off.

    What’s really pathetic from my perspective is what they will put out is not likely to really be a consensus document, but people like Eli, Tim Lambert and yourself will still endorse as if it were, even then.

    You really aren’t interested in getting the science right, are you? Because if you were, you’d be a lot more interested in how the process is working (or not working) and a lot less in what CEI employees say about it.

  34. lucia said

    Nick
    As at my blog, you seem to want to resort to substituting vague identifiers for specific ones so as to confuse yourself.
    “for people to use”. Those ‘people’ include some covered by FOIA. Those employed by OSTP are included in the “people”.

    I see you’ve posted the same questions to me here as at my blog. I think I have provided the quotes you desire over there.

  35. lucia said

    Neil

    It is easy to struture a request for all emails including the use of private/non-government addresses and the respondent would then need to argue why they shouldn’t/can not be disclosed.

    Ah!!! But you are only mentioning “email”. But the IPCC set up electronic communication fora that may include email but may also include other things.

    The CEI FOI requests

    We seek all records, documents, internal and external communications and other relevant covered material produced, sent or received by, or made available on an outside electronic forum to, Sherburne ―Shere‖ B. Abbott, OSTP Associate Director for Environment,…

    What could these other things be? Well, electronic fora I can think of include:
    1) blogs like The Air Vent.
    2) discussion forums i.e. message boards with threaded conversations. These frequently include provisions for both public and private exchanges on through the message board.
    3) email discussion groups (like google groups.)
    4) ftp sites to share documents for download and
    5) Wiki’s.
    6) Twitter like or facebook like micro-blog entities.

    Other things could exist. If a person doesn’t know all these thing exist and limits a request to “email about X”, the response might be that no “email about X” exists.

    It appears that CEI is requesting a whole bunch of stuff from those fora made available specifically to Sherburne — Sherrel B. Abbott.

    If CEI gets all these documents, they will be able to create a (possibly incomplete) list of “fora” where conversation might be taking place. This would be very useful information to have if one wishes in the future to write an FOI asking government agencies for specific information about “X” that might be hosted on any outside fora– including but not restricted to those on the “list”.

    If they get all these documents, and the fora are already being actively used, they would learn even more than just the names of fora. They might gain access to unfiltered discussion between Ms. Abbott and others, or any group discussion made accessible to Ms. Abott.

    This could, potentially be a huge amount of information. However, since the IPCC seems to have created these systems to provide confidentiality, it may be that the information accessible to Ms. Abott was more limited. Maybe she just gets stuff for “high level administrators at OSTP”.

    But even if limited, I would suspect CEI would get enough information to permit it to craft additional FOI’s to obtain trickles of information over time. For example: If they got Ms. Abott’s communications, they might learn the names of the person who wrote the communication– thereby learning the name of a second government agency employee who is using an IPCC electronic forum. Then, they can request that persons communications. And so on.

    By the time the AR5 is published the IPCC may have discovered that creating these fora provided the public with a near real time live feed of every draft, comment or sneeze at the IPCC! (Or not!)

  36. Neil said

    Hi Lucia, we are agreeing. What they are doing is what I would do, having been on the receiving end of requests many times in the past. The only argument you have to counter a broad request is usually that it is too broad and the requester needs to narrow down the search or that your system does not keep records or certain things, perhaps like webpage access. Time will tell and I am still concerned that Nick thinks it is okay that they want to avoid release of information. What is there to hide?

  37. gallopingcamel said

    Carrick @22,

    My first experience of the United nations was in Pakistan, 50 years ago. It was already corrupt back then and today it is beyond the hope of reform.

    Even though Romney appears to buy into Holdgren’s climate extremism, his presidential campaign has committed to eliminating US support to the UN including the closing of the UN building in New York.

    My understanding is that the USA contributes about 22% of the UN budget so Romney’s proposal would have a significant effect on UN activities. Other countries would likely follow our lead.

  38. lucia said

    Neil

    The only argument you have to counter a broad request is usually that it is too broad and the requester needs to narrow down the search or that your system does not keep records or certain things, perhaps like webpage access.

    They may get that. Also, because Ms. Abott is a former employee, the computers she used may have been wiped clean. So if OSTP doesn’t save all emails (and they may not) and Ms. Abott departed OSTP on July 11, 2011, the documents they seek may no longer be accessible on any OSTP computer to anyone at OSTP. Of course, given that the documents may still exist on IPCC fora, and the law says that OSTP must still make these accessible, it may be possible that OSTP could be legally compelled to retrieve them from the IPCC– even to the extent of being compelled to take all possible legal measures to compel IPCC to provide the still existing documents up to and including suing the IPCC!

    All in all, by creating fora, the IPCC has created a thorny legal thicket.

    I suspect this whole thing will be thrashed out in courts for a long time!

  39. Bad Andrew said

    Nick’s faulty argument is based on the fact that governments can pull the plug whenever they want on whatever they want. But that’s not the whole picture(surprise). Individual citizens also need to know when the plug should be pulled, and for that they need ALL the relevant information to make the right judgements.

    Andrew

  40. Craig Loehle said

    Nick seems to think that people working on AR5 are IPCC employees. There are very few IPCC employees. Most authors and “staff” are on loan from (ie paid by) governments or do the work gratis as university employees (mostly public universities). In either case they are subject to FOI (at state or federal level) for their normal work. This subterfuge attempts to get around that by creating secret channels of communication for work being performed on government/uni time. THAT is the problem.

  41. #38 Lucia
    “Of course, given that the documents may still exist on IPCC fora, and the law says that OSTP must still make these accessible, it may be possible that OSTP could be legally compelled to retrieve them from the IPCC– even to the extent of being compelled to take all possible legal measures to compel IPCC to provide the still existing documents up to and including suing the IPCC!”
    That’s wrong. All the FOI laws I’ve seen require the institution to produce documents they hold. I haven’t seen any that requires them to produce documents that someone else is holding.

    #40 Craig
    “In either case they are subject to FOI (at state or federal level) for their normal work.”
    Again, misunderstanding FOI. Individuals are not subject to FOI at all, so issues of “normal work” are irrelevant. FOI is a requirement on institutions to produce documents that they hold. Just that. Whether they were produced on government time is irrelevant . They may not even have been created by the organisation at all.

    This isn’t a subterfuge. The IPCC, however funded, is an organisation that deals in a work product – its reports. It wants to handle that work product on its own facilities, and has created “fora” to do so. This is perfectly normal. And yes, probably part of the reason is to avoid getting tangled up in other organisations local FOI requirements.

  42. Jeff Id said

    ” This isn’t a subterfuge. ”

    I’d like to know how you know that. I suppose that hide the decline, missing heat, residuals from mann98, blocking of publication, all that was not subterfuge also?

    This isn’t a subtefuge — EVIDENCE PLEASE!!

  43. lucia said

    Nick-
    I agree with your assessment in normal cases where a government agency would have its own employees using the governments own email system and files to store the communications they send and receive and use as a daily part of their work.

    But in this case, Horner is asking for documents held on IPCC fora as follows

    This Request thereby seeks two types of records: those possessed directly by OSTP on its own assets, such as email accounts, computers, flash drives, discs and servers, and those held on
    assets (such as an internet forum) that during Ms. Abbott‘s service was accessible to her,
    relating to the Intergovernmental Panel on Climate Change (UN IPCC or IPCC). This includes but is not limited to any record providing Ms. Abbott a user name and password for such electronic fora.

    The accounts on the IPCC servers would be those made “accessible to her, relating to the Intergovernmental Panel on Climate Change (UN IPCC or IPCC”.
    In the FOI, Horner states

    For this and other reasons, including but not limited to those below, the records are agency and White House records subject to PRA, and to FOIA barring any specific, applicable exception.

    (Note: Both PRA and FOIA appear to cover Ms. Abott at different times.)

    That is: Horner is explaining that in the special circumstances of this case, documents on the IPCC server become records subject to PRA and FOIA.

    He may turn out to be wrong — or he may turn out to be right. I don’t know which, and that’s why I used the verb “may” in the following
    “it may be possible that OSTP could be legally compelled to retrieve them from the IPCC”.

    I’d bet dollars to donuts that if OSTP turns down his request on the grounds that they don’t control the IPCC servers, CEI will go to court. The case may travel rather far up the court chain. Eventually we will know how far FOIA can reach. Only after the cases go to court will we know whether in the special circumstances here, FOIA can be used to compel the IPCC to fork over the documents.

    Bear in mind: even if FOIA can’t reach the documents OSTP’s system failed to ‘capture’ because an employee may have used an external non-OSTP system to do work for OSTP, someone somewhere is going to ask OSTP the same sorts of questions that were triggered when Waxman’s committeed discovered WH personel using RNC email to avoid having their communications pass through the WH system.

  44. Layman Lurker said

    The office of the Inspector General looked into the question of IPCC related work performed by NOAA employees was subject to FOIA back in February. This was in response to a request from James Inhofe. When the OIG looked into the question, they found that NOAA did not, as they had claimed in response to requesters, conduct sufficient search for records requested under FOIA. Susan Solomon informed the OIG that she did not conduct a search due to her understanding that IPCC related work was the property of the IPCC, and that she recieved direction to this effect from her supervisor and advised on the matter by NOAA lawyers. NOAA lawyers referred to by Solomon and her supervisor denied giving such advice. One of the lawyers stated that he recieved a call from Solomon in 2007 to inquire to confirm the legal advice she recieved. The lawyer apparently told her that he had not given any such advice, but followed the call up by researching case law which he believed would apply and then responded to Solomon that the earlier advice (which he said he didn’t provide!) appeared reasonable. This lawyer said that he had been led to believe by Solomon that she had been officially “detailed” to the IPCC from 2002 to 2007. The OIG examined the case law in question and responded with the following:

    We examined the precedent case referenced by one ofthe NOAA OGC attorneys, Judicial Watch, Inc. v. Dep’t ofEnergy, and found that unlike in this case, the Co-Chair, as well as other NOAA employees who participated in the AR4, performed much of their IPCC-related work at NOAA offices and/or using NOAA equipment, received their pay from NOAA, and, in their own words, continued to work on other NOAA matters and remained subject to the supervision of other NOAA employees. In addition, all ofthe NOAA employees we questioned on this topic, with the exception of the Co-Chair, considered their IPCC-related work to be an official NOAA activity. Furthermore, we found no evidence that any of the employees, including the Co-Chair, were formally “detailed” to the IPCC, via, for example, a memorandum of understanding or SF-52 Request for Detai1.25 As a result, in our view, any records created by these employees in the “legitimate conduct of [their] official duties,” including IPCC-related work, constitute NOAA agency records, and as such, should have been processed under FOIA to determine whether the records were releasable.

  45. LL #44
    Yes, these were documents held by NOAA for which Susan effectively claimed an exemption under FOIA. The OIG is saying they may not have been exempt.

    The argument here is about documents to be created on an IPCC forum. They would not have been held by NOAA, and would not be subject to FOIA.

    The OIG might have a view as to whether people should use such a forum in work time. But that isn’t a FOIA issue.

  46. steve fitzpatrick said

    Should Mr. Obama not win re-election next year, I expect the next president and Congress would support an open processes at the IPCC as a legally binding condition of US contribution to the process, including the contributed work of US federally funded scientists. Same thing if Mr. Obama is re-elected, but Republicans gain control of the Senate. Either way, funding can be made conditional on specific requirements of openness and disclosure. And considering the level of US contribution, I think the UN would pretty well be forced to comply.

    The whole idea that the IPCC should be working in secret (EVER!) is so odd (and so destructive of their stated objectives) that I am surprised lots of governments have not already pressed for full and complete disclosure of the processes.

  47. Lucia #43
    “someone somewhere is going to ask OSTP the same sorts of questions that were triggered when Waxman’s committeed discovered WH personel using RNC email to avoid having their communications pass through the WH system.”

    Well, Waxman’s committee didn’t discover the RNC use. They reported that the RNC server’s held 140,000 of Rove’s emails, over half from .gov sources. That can’t have been a secret.

    There’s a chronology here.

    But the main difference is that OSTP wouldn’t be breaching PRA or FOIA. There may be an argument about employees doing IPCC work on OSTI time. But that argument would exist independently of the mail system used.

    “That is: Horner is explaining that in the special circumstances of this case, documents on the IPCC server become records subject to PRA and FOIA.”
    Huh? I read elsewhere that no, no, Horner wasn’t talking about OSTP and PRA.

    “I’d bet dollars to donuts that if OSTP turns down his request on the grounds that they don’t control the IPCC servers, CEI will go to court. “
    I’d take that bet. Even quatloos. It’s true that CEI isn’t very rational. But the law will be clear on that issue. FOI doesn’t entitle you to demand that departments go and extract documents from non-government entities.

  48. Layman Lurker said

    Nick, the OIG has stated it’s view on this in the above quote: “any records….including IPCC related work, constitute NOAA agency records” as long as the employees are deemed to be conducting official duties.My interpretation is that the OIG feels that IPCC have no claim on any official business conducted by NOAA employess – fora or no fora.

  49. LL#48
    Yes, and he goes on to say:
    “should have been processed under FOIA to determine whether the records were releasable.”
    He’s clearly talking about records that NOAA holds.

  50. Layman Lurker said

    Read again Nick, IPCC records created by employees conducting official duties are NOAA records.

  51. Craig Loehle said

    If you do the work on NOAA paid hours it belongs to NOAA and the gov and is subject to FOI requests no matter who you are collaborating with.

  52. Greg F said

    Any IT guys who would like to explain the problems for Nick?

    You mean this?

    Anyway, it’s very unlikely that using IPCC accounts makes them untraceable. Like all communications in business, they just aren’t available on demand to anyone who asks.

    Well they would be ‘traceable’ in that the source and destination addresses would be known. If the communications were encrypted (seems likely) then the addresses is all you would know.

  53. #50, #51
    No, again you’re both missing this very simple point. FOI refers only to documents the NOAA holds. That was the point of the quote “should have been processed under FOIA to determine whether the records were releasable.” The OIG is clearly talking about docs that they hold, else they could not have been processed.

    That’s relevant to the IPCC system. If people enter their reviews directly into an IPCC mail system or Wiki or whatever, then they would not be docs held by the NOAA. They are unavailable under FOI (via NOAA) for that simple reason. It doesn’t matter who was paying who.

    People seem to imagine that the NOAA can somehow be required to assert ownership and fetch docs from the IPCC. But FOI doesn’t require that, and in fact it would be impractical. Imagine that an NOAA employee commented at tAV during working hours. Does Jeff then become subject to FOI?

  54. Anonymous said

    #53
    So information entered directly into an IPCC system from a government-owned computer by a government employee during working hours is completely off limits to FOI? Most governmental entities have a usage policy similar to the following (from NOAA):

    “NOAA provides access to computing resources (hardware, software, data) to its employees and contractor staff. These resources are provided to facilitate completion of assigned responsibilities, with prior authorization.”

    So any governmental entity can skirt FOI simply by using an off-shore facility in which to conduct their authorized and assigned responsibilities? I imagine such an exercise would perhaps be viewed with disfavor by representatives of the judiciary.

    If this activity is not explicitly authorized and assigned, then the government employee is violating the usage policy.

    Or is the government employee doing all this in their free time?

  55. #54 “completely off limits to FOI”
    This is getting wearisome, but again, the FOI situation is simple. If the gov entity is holding a document, they may well have to supply it under FOI. If they aren’t, they don’t.

    As to responsibilities to the employer, that’s a matter between employer and employee. If they are doing IPCC work in gov’t time, they’d need agreement to do that. I expect bodies like NOAA are supportive.

    And yes, I’m sure some do it outside working hours. It’s simpler. Most scientists do lots of work outside designated hours. They would find the IPCC facility helpful.

  56. kim said

    Look, for 40 years these doomsaying Malthusians have been the coming thing. One can hardly blame Romney for hiring then the best available local talent, read Harvard Moron, but that should all be laid to rest now. Mitt would be smart to repudiate Holdren and the whole green energy and sustainability shebang, and do it now. That’s a lot to expect from a leader of his type, however.

    But that was yesterday, and yesterday’s gone.
    ============

  57. kim said

    The irony? The binds placed on information in the ‘Information Age’.
    ==========================

  58. It is not as simple as Nick is portraying. If the records can be obtained by the agency, they must be released though it can take more time. If a person has an account and did work from a government agency, the FOIA officer can through that account, access and release. Charges and increased time are likely to apply. Another problem is that the agency (has to be executive) must have a program for obtaining and maintaining records. Further, the FOIA Officer can reccommend adjustments to practicvces, policies, etc., to improve implementation of an agency’s ability to meet FOIA. With the rulings concerning bypassing FOIA or PRA, the agency could find themselves on the short end of a law suit.

    The reading material below gives a flavour of the wide ranging legal aspects of this cloud. The public aspects are another matter. But, the long and short of it, is that if the FOIA officer can acess it, and that includes electronic data, it is not necessarily true the officer cannot get it. The question appears to be more a legal interpretation of (I) and (2) B below. But it looks as though the tactic is that CEI will not lose. At worst the cloud has to be closed, or the agency will have to start recording this information and providing it.

    It most definetly does not look like CEI is tilting at windmills here.

    1. (iii) As used in this subparagraph, `unusual circumstances’ means, but only to the extent reasonably necessary to the proper processing of the particular requests-
    1. (I) the need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request;
    2. (II) the need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request; or

    1. (d) This section does not authorize withholding of information or limit the availability of records to the public, except as specifically stated in this section. This section is not authority to withhold information from Congress.
    2. (2) ‘record’ and any other term used in this section in reference to information includes—
    1. (A) any information that would be an agency record subject to the requirements of this section when maintained by an agency in any format, including an electronic format; and
    2. (B) any information described under subparagraph (A) that is maintained for an agency by an entity under Government contract, for the purposes of records management.

    1. (k) The Chief FOIA Officer of each agency shall, subject to the authority of the head of the agency—
    1. (1) have agency-wide responsibility for efficient and appropriate compliance with this section;
    2. (2) monitor implementation of this section throughout the agency and keep the head of the agency, the chief legal officer of the agency, and the Attorney General appropriately informed of the agency’s performance in implementing this section;
    3. (3) recommend to the head of the agency such adjustments to agency practices, policies, personnel, and funding as may be necessary to improve its implementation of this section;

    Initially, it is important to understand that there is no central office in the government that processes FOIA requests for all federal agencies. Each agency responds to requests for its own records. Therefore, before sending a request to NARA, you should determine whether this agency is likely to have the records you are seeking. Each agency should have its own FOIA reference guide, so if the records you are interested in are kept by another agency you may wish to request a copy of that agency’s guide.

    In accordance with the FOIA, NARA has designated a Chief FOIA Officer – a high-level official who monitors FOIA implementation throughout the agency, recommends to the head of the agency such adjustments to practices and policies as may be necessary, and prepares reports on the agency’s performance in implementing the FOIA. The FOIA also requires all federal agencies to establish one or more FOIA Requester Service Centers and FOIA Public Liaisons to assist FOIA requesters with inquiries about the FOIA process in general and their FOIA requests in particular.

  59. John #58
    “If a person has an account and did work from a government agency, the FOIA officer can through that account, access and release.”
    Are you suggesting that in response to an FOI request an FOIA officer would access an IPCC site using someone else’s password, remove material, and then supply it to a satisfy a FOI request? Sounds like extraordinary behaviour to me. Do you have any basis for saying that?

    Are you claiming that he is obliged to do it under FOI? Or could if he chooses? Can he take any material he likes? Or just material that he claims originated from his department?

  60. Harold W said

    NIck –
    You keep repeating that all releasable documents must be located on NOAA’s servers/computers — if it’s not there, it’s not subject to FoIA. The word “held” is interpreted more broadly in this context. From here (UK source):

    For the purposes of the [Freedom of Information] Act, information is held by a public authority if:
    (i) it is held by the authority, otherwise than on behalf of another person, or
    (ii) it is held by another person on behalf of the authority.

    Here’s what the UK information commissioner’s office had to say in what appears to be a similar case, in this instance using a private gmail account rather than governmental email, while carrying out official business.””It is certainly possible that some information in private emails could fall within the scope of the Freedom of Information Act if it concerns government business. This will be dependent on the specific circumstances.” (source) You will note that they do *not* say that, because the email would be found on Google’s server and not a government computer, it’s automatically exempt from FoIA.

    While the UK Information Commissioner won’t decide this particular case in the US, the principles are fairly consistent. The logical thing to do would be to expect the agency (NOAA in the present instance) to make reasonable efforts to identify the relevant documents and produce them. I don’t think it’s logical to expect the agency to go as far as suing the IPCC for them. But if it’s simply a matter of going online to the fora and pulling down documents, that seems within the bounds of a diligent search.

  61. HaroldW said

    drat, previous commenter was me. [Jeff, can you please fix?]

  62. #60
    I think that section just covers records held in off-site storage. Here is what seems to be a statement of the US FOIA position:
    ” Records obtainable under the FOIA include all “agency records” – such as print documents, photographs, videos, maps, e-mail and electronic records – that were created or obtained by a Federal agency and are, at the time the request is filed, in that agency’s possession and control.

  63. No NIck, I pointed out that it was a legal argument. As far as I know, it has not been decided in US Courts. What has been decided in US Courts is the requirment of broad interpretation. To the user, whether it is stored on a NOAA or OSTP or IPCC server is transparent to the user. The requirement that an inter agency or intra agency that is used to store information may be covered using a broad definition. It would not be for all documents, but rather the documents of the gov employee had on the account and email sent to gov employee on that account. Point 1.

    Point 2, by starting this suit, CEI may be able to show that the OSTP is violating the intent of the FOIA and the officer needs to correct that. Officials who do not comply can be taken to court and fired, contempt, etc. So, even if the Intra, inter government part is ruled to NOT cover this IPCC cloud, the court may issue a ruling that the OSTP is violating or circumventing FOIA and must stop immediately.

    Point 3. The President’s staff may be in violation of an Executive Order. The Presidential Order for Transparency from the Washington Post article by Ed O’Keefe: {{The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears,” Obama said in the FOIA memo, adding later that “In responding to requests under the FOIA, executive branch agencies (agencies) should act promptly and in a spirit of cooperation, recognizing that such agencies are servants of the public.”n His memo on government transparency states that the Obama Administration “will work together to ensure the public trust and establish a system of transparency, public participation, and collaboration. Openness will strengthen our democracy and promote efficiency and effectiveness in Government.” The order directs the yet-to-be-named chief technology officer to work with the OMB director to develop an “Open Government Directive” in the next four months.}}

    Part of the question, that I note you did not highlight, was the word ALL. The username and password is held by the employee of the agency. But you did highlight CONTROL. It has been ruled, IIRC that such could be required by the FOIA officer, since the employee and computer use/time was under the agency’s control. The requirement you seem to want to ignore and made broader by the Order, is that FOIA is to be interpreted broadly. As pointed out, all and control cover a lot of situations.

    The problem with using the defense that it is not held, could be considered prima facia evidence of violating the intent of FOIA and the Presidental Order. BUt I think it was necessary for CEI to get this ruling of what and what is not covered by FOIA with respect to IPCC, so then they can really go after OSTP. My opinion, YMMV.

  64. #55
    Yes, this is getting tiresome.

    You keep repeating this work isn’t subject to FOI because it isn’t ‘held’ by the government. That is, indeed, the whole point – it isn’t subject to FOI because they’ve intentionally acted to circumvent FOI in the course of performing their publicly-funded duties.

    The responsibilities to the employer are clearly spelled out in the usage policy, not a mystery.

    If you are doing IPCC (or any other) work on government time it must be performed in a manner that doesn’t circumvent FOI. It doesn’t matter how much you sympathize with the organization that set up the method of circumvention, and it doesn’t matter how supportive your employer is of your illegal activities – you still broke the law.

  65. Mark F said

    Ya think maybe Nick has an agenda? Ya think?

  66. Craig Loehle said

    I know someone within the Veteran’s Services (Hospital) system who handles network security. People using these gov computers are not even allowed access to gmail and other nongov systems. Nor access to youtube. Very restrictive. Some gov agencies on the other hand are totally lax and don’t care what you do (like Argonne National Lab). But the idea that someone working full time for NASA or NOAA etc could spend all their work hours on IPCC work and then say: oh it is all IPCC property and “private” just is implausible at best.

  67. Bad Andrew said

    “Ya think maybe Nick has an agenda? Ya think?”

    Indeed. He’s what they used to call a propagandist. A profession with a rich tradition.

    Andrew

  68. Genghis said

    Nick has done a wonderful job of illustrating the intent and purpose of the IPCC’s actions.

    The IPCC has created a cloud whose sole purpose is a repository and conduit for correspondence and information to be exchanged, precisely to try and circumvent the FOI requirements.

  69. Steve McIntyre said

    It’s worth looking at recent interpretations of Sarbanes-Oxley as in the prosecution of Alexander Wolff Gmbh. They used a variety of devices to conceal records from potential discovery. The concealment activities earned them an additional charge for obstruction of justice under the Sarbanes-Oxley clause (which applies to non-profits as well as to for-profits.)

    It seems to me that the Wolff prosecutor would have viewed password-protected offshore fora as an attempt to conceal documents, particularly if the parties left a paper trail similar to IPCC’s. As I understand it, if the purpose of concealment of documents is to obstruct a function of a U.S. agency, under some circumstances, the parties breach Sarbanes-Oxley. I do not know whether US agencies are themselves subject to Sarbanes-Oxley or whether the concealment of documents by IPCC cadres employed in US government agencies satisfies other elements of the Act, but these are things that would be interesting to analyse.

  70. Steve McIntyre said

    But the idea that someone working full time for NASA or NOAA etc could spend all their work hours on IPCC work and then say: oh it is all IPCC property and “private” just is implausible at best.

    But that is precisely the position taken by NOAA. One that should be vigorously criticized.

  71. “Ya think maybe Nick has an agenda?”
    I have views on science, AGW etc, which I express. But at this stage, it’s pure argumentativeness. Debating the mechanics of FOI doesn’t promote any causes. It just bugs me that simple processes are so widely misunderstood.

  72. Nick you say that “it bugs me that simple processes are so widely misunderstood.” This is untrue as I posted above. It is about “all” and “control.” Though not having documents is a real reason not to be able to give information per FOIA, but does not prevent someone from suing someone for not follwoing FOIA because record retention is required and was nor done.

  73. Bad Andrew said

    “I have views on science, AGW etc, which I express.”

    Nick is it a coincidence that your views conform to all the establishment views? And that you spend a lot of daylight expressing them rather than say, posting romance stories?

    Andrew

  74. “Though not having documents is a real reason not to be able to give information per FOIA, but does not prevent someone from suing someone for not follwoing FOIA because record retention is required and was nor done.”
    Well, anyone can sue for anything, but it’s expensive. And FOI laws usually don’t themselves say what records should be retained – and this seems to be true of US. So they would have to rely on other legislation.

    And I can’t see that working here. There might be an argument about whether gov’t empoloyees should be allowed to do IPCC work in office time. But if that is accepted, I can’t see how a suit on whether they then use IPCC facilities would succeed.

  75. lucia said

    Nick Stokes

    Well, anyone can sue for anything, but it’s expensive.

    That doesn’t mean they won’t sue.

    There might be an argument about whether gov’t empoloyees should be allowed to do IPCC work in office time. But if that is accepted, I can’t see how a suit on whether they then use IPCC facilities would succeed.

    The question isn’t whether they can use IPCC facilities. The question is whether the communications the communications they send and receive remain government communications subject to FOIA and whether they can attempt to communicate in ways that put the records of the communication outside the reach of FOIA.

    I can’t think of any technical reason why all connections to the IPCC facility couldn’t done through a a gateway that recorded the documents viewed and uploaded. This wouldn’t even be onerous for users at agencies covered by FOIA. Possibly, such a system could be required– that would depend on what courts interpret FOIA to require.

    In that case, everything communicated by an agency employees (i.e. NOAA, OSTP, LLNL etc) would be recorded and easily accessed if a request was made. Meanwhile, IPCC’s system could continue to operate.

  76. RomanM said

    Nick, your entire focus seems to be on arguing whether documents which only exist on the IPCC servers would be FOIA accessible. This presumes that none of the NOAA employees would not keep any copies of their submissions on their own machines at any time.

    Now this doesn’t make sense to me. I personally would like to know what I have written as well as what other people have contributed to the discussion while I am working on a project without constantly having to be connected to the external IPCC facilities. I would also be unlikely to erase these materials and remove all traces of them unless I have been directed to do so by someone with the authority to do so. Thus the only way that your scenario would arise would be if I (and everyone else) complied with such a directive.

    In your opinion, could this be construed as an overt attempt to circumvent FOIA with regard to this particular work product?

  77. RomanM said

    Rats!

    “None of the NOAA employees would keep any copies …”

  78. Romanm #76
    I think that in view of the fuss, it’s very likely that NOAA folk etc would actually upload to the IPCC facility at home. And keep copies at home.

    No, I don’t think that’s any evasion of FOI. The IPCC is not subject to FOI.

    Of course, they might think IPCC-related thoughts at work. And yes, I guess hardworking US taxpayers would own those. But CEI forgot to ask.

  79. Greg F said

    I can’t think of any technical reason why all connections to the IPCC facility couldn’t done through a a gateway that recorded the documents viewed and uploaded.

    The technical reason is called encryption. If the IPCC’s cloud uses encryption (https web pages for example) there would be no point in recording the documents as they would be unreadable. The only real solution would be to block access to the IPCC’s servers.

    It seems to me that when you are paid to do work the product of your labor is the property of the employer. Denying the employer access to the work product would seem to me to be theft of services.

  80. Greg F said

    Steve McIntyre #69

    Steve,

    Sarbanes-Oxley in theory only applies to financial documents. In reality under Sarbanes-Oxley you are guilty until proven innocent. If you delete a document you can’t prove it wasn’t a financial document and as a result everything is archived. To my knowledge Sarbanes-Oxley does not apply to government entities.

  81. Greg #79
    “It seems to me that when you are paid to do work the product of your labor is the property of the employer. Denying the employer access to the work product would seem to me to be theft of services.”

    Their work for the IPCC is not secret, and must have the agreement of the employer if work time is involved. If the employer wants the product, presumably they would ask for it as part of the deal. It’s between them and the employee.

  82. NIck says “No, I don’t think that’s any evasion of FOI. The IPCC is not subject to FOI.” Your are wrong in that is not even the argument. The argument is that OSTP is part of the executive branch as are others. If not exempt, then yes, an agency has to comply with the FOIA and that means its employees and agents. You are not thinkng. Work by an agency of the excecutive branch has to comply with FOIA that is the law. There is not an exemption for doing your work using a system that does not meet FOIA. It just means the agency is not meeting FOIA and can be held in contempt; and officers, employees etc can be cited by the judge.

  83. JohnFPittman #82

    “Work by an agency of the excecutive branch has to comply with FOIA that is the law. There is not an exemption for doing your work using a system that does not meet FOIA.”

    No, you’re just making stuff out of thin air. FOIA requires that agencies produce documents that they hold. It doesn’t say anything about what documents they should hold. If you can find it, please cite.

  84. Repeat after me: “The IPCC is not subject to FOI”. There, now it never has to be said again, right Nick?

    This, of course, is not the point. The point is circumvention of FOIA by US government employees, not the IPCC.

    According to the information I’ve provided below, if a government employee creates information in the course of their official duties this information is considered an agency record and is subject to FOIA “regardless of the method(s) or the medium involved.”

    I would say, based on this information, a government employee entering information on an IPCC-controlled cloud as part of their officially sanctioned work is required to preserve that information for FOIA purposes.

    According to the Department of Commerce Records Management Policy (http://ocio.os.doc.gov/ITPolicyandPrograms/Policy___Standards/DEV01_003750):

    The Federal Records Act defines records as including “all books, papers, maps, photographs, machine-readable materials, or other documentary materials, regardless of physical form or characteristics, made or received by an agency of the United States Government under Federal law or in connection with the transaction of public business and preserved or appropriate for preservation by that agency or its legitimate successor as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the Government or because of the informational value of the data in them.” (44 U.S.C. §3301). Many of the key terms, phrases, and concepts in this statutory definition of records are defined in 36 CFR §1222.12.

    According to 36 CFR §1222.12 (http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=e8a4fe6d6e9098784919caa4749aa4a7&rgn=div5&view=text&node=36:3.0.10.2.11&idno=36)

    (3) Made means the act of creating and recording information by agency personnel in the course of their official duties, regardless of the method(s) or the medium involved.

    And according to NOAA’s Rules of Behavior (https://www.csp.noaa.gov/policies/NOAA_IT_System_Rules_of_Behavior_2006_updated.html)

    � Individual Accountability. Recognize the accountability assigned to your User ID and password. Each user must have a unique ID to access NOAA systems. Recognize that User IDs are used to identify an individual’s actions on NOAA systems and the Internet. Individual user activity is recorded, including sites and files accessed on the Internet (recorded as the files go through the firewall).

  85. I forget to add there is no exemption for electronic records.

    From the Department of Commerce Records Management Policy:

    Electronic records are those that are created, used, maintained, transmitted, and disposed of in electronic form. They consist of information in any form, including textual documents such as word processing files or electronic mail messages; images such as maps or pictures; World Wide Web content; and computer code. Electronic records may be stored in computer memory or on storage media, such as optical disks or magnetic tapes. They may or may not have paper backup. Electronic records are Federal records as designated by the Federal Records Act and are subject to the same records management standards of NARA and the Department of Commerce as any other records.

  86. RomanM said

    #78 Nick:

    Your answers are outrageous! Twists and turns, have you no sense of what constitutes ethical behaviour?

    Stephen in #84 can easily understand the point that I am making and addresses your objections very well. There is an intent on the part of the IPCC to continue the unsavory behaviour we have witnessed in the climategate emails by hiding their actions behind a very obvious curtain of secrecy.

    Climate science can only be done behind closed doors… and you just don’t get it….

  87. #84 Stephen
    “This, of course, is not the point. The point is circumvention of FOIA by US government employees, not the IPCC.”

    Well, the headline here says
    “An IPCC backchannel ‘cloud’ was apparently established to hide IPCC deliberations from FOIA.”

    Sounds like they’re talking about IPCC deliberations and FOI.

    But all the things you’ve listed seem to be defining what agency records are. I can’t see anything that says that a record of IPCC traffic should be created and held.

  88. #86
    “There is an intent on the part of the IPCC to continue the unsavory behaviour we have witnessed in the climategate emails by hiding their actions behind a very obvious curtain of secrecy.”
    No, there’s a stated intent to have confidential author drafting discussions. There’s nothing abnormal about that. Do you think Supreme Court discussions when drafting decisions should be public? Are they unsavory?

    Do you make available your journal review discussions?

  89. #87
    The IPCC traffic, if generated by a US government employee as part of their official duties, is an agency record.

    Agency records are subject to FOIA.

  90. #87

    I thought the headline was “Hiding Future Declines”.

    We could have a extensive conversation about word choice for the title or subtitle of the post, but that would deflect our attention from the subject matter in the content of the post – circumvention of FOIA by government employees as part of the IPCC deliberations. And we wouldn’t want to expend our valuable time and energy on such a meaningless activity, would we?

  91. #83
    >“Work by an agency of the excecutive branch has to comply with FOIA that is the law. There is not an exemption for doing your work using a
    >system that does not meet FOIA.”

    >No, you’re just making stuff out of thin air. FOIA requires that agencies produce documents that they hold. It doesn’t say anything about what
    >documents they should hold. If you can find it, please cite.

    I have provided citations from official US government guidelines that spell out what documents federal agencies are expected to hold for FOIA compliance, whether the documents are created electronically on a 3rd-party cloud or with chisel and stone.

    Are you willing to concede this stuff was not made out of thin air?

  92. lucia said

    NIck

    Of course, they might think IPCC-related thoughts at work. And yes, I guess hardworking US taxpayers would own those. But CEI forgot to ask.

    Well, let’s hope the employess NOAA sent to author meetings in Bergen Norway, 2006 thought IPCC-related thoughts while they were being paid by NOAA to think IPCC related thoughts.

    Meetings for the AR5 will take place in London and DC. If a government agency covers the authors time, travel, hotel and food, and supplies their laptops and other work materials, then the government agency employees are certainly acting as employees of the government agency– not the IPCC.

    Mind you: I’m not objecting to NOAA funding people to contribute to the IPCC effort. I’m just not going to buy into the fiction that these people somehow magically cease to be government agency employees while doing that work.

    As for your suggesting CEI forget to ask for stuff on work computers– what do you think CEI forgot to ask for? In the recent CEI request they asked for documents on OSTP computers and documents on non-OSTP computers:

    This Request thereby seeks two types of records: those possessed directly by OSTP on its own assets, such as email accounts, computers, flash drives, discs and servers, and those held on
    assets (such as an internet forum) that during Ms. Abbott‘s service was accessible to her, relating to the Intergovernmental Panel on Climate Change (UN IPCC or IPCC). This includes but is not limited to any record providing Ms. Abbott a user name and password for such electronic fora.

  93. ANONYMOUS said

    TEST

  94. Greg F said

    I wrote:

    It seems to me that when you are paid to do work the product of your labor is the property of the employer. Denying the employer access to the work product would seem to me to be theft of services.

    Nick pretends to respond:

    Their work for the IPCC is not secret …

    Please read the above and quit trying to muddy the waters. “Secret” has nothing to do with ownership of the work product.

    …must have the agreement of the employer if work time is involved.

    Nothing so far addresses the my above statement of ownership of the product of the labor.

    If the employer wants the product, presumably they would ask for it as part of the deal.

    Please see Stephen John #84, #85 and #89. The employer through Federal law has already established they want the product.

    It’s between them and the employee.

    Nic lives in an ethical wasteland.

  95. Stephen #91
    “I have provided citations from official US government guidelines that spell out what documents federal agencies are expected to hold for FOIA compliance, whether the documents are created electronically on a 3rd-party cloud or with chisel and stone.”

    No, you have not. None of your citations mentions FOIA. Nor do they say what documents agencies are expected to hold. They just say what an agency record is, and a bit about their mechanics.

  96. Mark T said

    Nick… ethics… You must be joshing, RomanM. He keeps it all locked in a closet with his integrity.

    Mark

  97. “Nic lives in an ethical wasteland.”
    I dont believe there is an ethical issue at all. We’re talking about the management of employee’s time and resources by federal agencies. I am quite happy to leave that to them.

    But your outrage is synthetic. That’s why I sometimes raise the issue of the Bush RNC emails. This was something on a massive scale, conducted over a long time, right at the heart of the Federal Government. I wonder where you all were then.

  98. #94

    Nick, I hope you don’t need a chiropractor after all that contortion:

    > No, you have not. None of your citations mentions FOIA. Nor do they say what documents agencies are expected to hold.

    From NOAA (http://www.rdc.noaa.gov/~foia/):

    The Freedom of Information Act (5 USC 552), was enacted in 1966. FOIA provides that any person has a right to obtain access to federal
    agency records, except to the extent that such records (or portions of them) are protected from public disclosure by one of nine FOIA
    exemptions or by one of three special law enforcement record exclusions.

    Note the reference to “federal agency records”. Thus my inclusion of the definition of federal records:

    The Federal Records Act defines records as including “all books, papers, maps, photographs, machine-readable materials, or other
    documentary materials, regardless of physical form or characteristics, made or received by an agency of the United States Government under
    Federal law or in connection with the transaction of public business

    Electronic records are Federal records as designated by the Federal Records Act and are subject to the same records management
    standards of NARA and the Department of Commerce as any other records.

    And the official definition of ‘made':

    (3) Made means the act of creating and recording information by agency personnel in the course of their official duties, regardless of the
    method(s) or the medium involved.

    You have the FOIA citation, the definition of what constitutes a record and the citation that states the medium where the record is made doesn’t matter.

    Has the air become less thin yet?

  99. Stephen,
    “Has the air become less thin yet?”

    No. There’s nothing there. Yes, of course FOIA provides access to federal agency records. Or, in the fuller statement I cited above:

    ” Records obtainable under the FOIA include all “agency records” – such as print documents, photographs, videos, maps, e-mail and electronic records – that were created or obtained by a Federal agency and are, at the time the request is filed, in that agency’s possession and control.”

    And you have lots of stuff on what a record is. What you don’t have is anything that says that in circumstances like these, anyone is obliged by FOIA to make and retain an agency record.

  100. Layman Lurker said

    But your outrage is synthetic. That’s why I sometimes raise the issue of the Bush RNC emails. This was something on a massive scale, conducted over a long time, right at the heart of the Federal Government. I wonder where you all were then.

    Nick, you seem like a nice guy (you still owe me a beer), but I have never, ever, seen you level any serious criticisms about the IPCC, or anything else. You don’t even try. Instead you do the defense lawyer advocacy thing on pretty much every subject that comes up no matter what the facts are. That is actually fine with me. The role of the foil is helpful in discussions so that all angles are vetted. But you should really think twice though before you start accusing others of selective rightousness.

  101. Layman Lurker said

    …”or anything else [AGW related]”

  102. #98

    What I say is irrelevant.

    The relevant federal guidelines say if the record is created by a federal employee as part of the “transaction of public business” the record must be accessible under FOIA “regardless of the method(s) or the medium involved.”

    The specific circumstances are irrelevant unless they fall under one of the 9 defined FOIA exemptions.

    There is no “created on the IPCC cloud” clause, no “created on an iPad” clause, no “typed on an IBM Selectric III” clause, because they aren’t needed.

  103. LL,
    “But you should really think twice though before you start accusing others of selective rightousness.”
    No, that’s not right. The accusation actually was synthetic outrage. And I’m not guilty here. I’m not outraged at all (even when accused of living in an ethical wasteland). I’m just saying that what the IPCC has done seems perfectly reasonable.

  104. Stephen,
    “The relevant federal guidelines say if the record is created by a federal employee as part of the “transaction of public business” the record must be accessible under FOIA”

    But you left out the bit about
    “were created or obtained by a Federal agency and are, at the time the request is filed, in that agency’s possession and control.”
    Material on an IPCC server fails that test.

    Your interpretation would say anything created must remain available forever. And that just isn’t so. Agencies have waste paper baskets. Records are being deleted all the time. And that doesn’t breach FOI.

  105. Carrick said

    Nick Stokes:

    This was something on a massive scale, conducted over a long time, right at the heart of the Federal Government. I wonder where you all were then.

    Or the Clinton White House “lost emails”. What happened in the Bush White House bothered me, and was wrong. So were similar abuses in the preceding White House administration.

    Funny how you only keep only mentioning one of the two. If people come away with the impression you have a political agenda, it’s because you do.

  106. Layman Lurker said

    Looking at #96 and #102 I’m not sure what point you are making. When I see the comment “I wonder where you all were then” I interpreted this to be a rhetorical comment implying that commenters here were only concerned about such issues when it is politically convenient – that supposedly if the politics falls the other way there is no concern. You’re saying I missed the mark?

  107. #103

    Nick,

    If the federal employee created the material on the IPCC server as part of their job they are required to keep a record – remember: “regardless of the method(s) or the medium involved.”

    I’ve never said or implied anything about time frames.

  108. Stephen,

    No, you keep citing a definition of what a record is (“regardless of the medium involved”) and spinning that into a requirement to keep such a record, which it doesn’t state anywhere.

    In fact, FOI puts very few obligations on individuals. It creates a requirement for agencies to respond to FOI requests, with what they have at the time. How they do that is generally a matter for their internal management. US FOI does prescribe some general FOI management structure. But for individuals, there are only a few things they are required to do after a request is filed (basically, don’t destroy stuff requested, do what the judge says etc). There is nothing about what they have to keep or do in the absence of a request.

  109. LL #105,
    I was noting the inflated outrage wrt the IPCC fora vs the WH accounts. Not so much the politics, but the relative importance. A few IPCC drafts vs the conduct by powerful US figures of large amounts of government business. Eg firing USA’s. Which matters more?

    And Carrick, I have been talking about the use by the WH of email accounts on external systems, which has some parallels with the IPCC situation (tho very little; from the IPCC viewpoint, it’s their own system). I’m not aware of earlier precedents for that. Are you?

  110. Nick,

    Right. The agency only has to keep the records if someone requests them. Hmm, don’t think so.

    They keep records of all official activities so they are available if someone requests them. That’s the whole point of FOIA – making the actions of government agencies transparent to the people who fund the agencies. There are well-defined rules of what to keep and how long to keep it. The agency has to follow these rules even if no one ever makes a request.

  111. Stephen,
    “There are well-defined rules of what to keep and how long to keep it.”

    That’s my query – where are those rules? I don’t believe they are any part of the FOIA. And you haven’t pointed to any.

  112. Mark F said

    Sounds to me like “some people” don’t really want any information to be revealed, especially if it might be awkward for the IPCC or its ruling ENGOs. I have to wonder why.

  113. What Nick wants to avoid is the duty to comply.

    From Wiki: The act explicitly applies only to executive branch government agencies. These agencies are under several mandates to comply with public solicitation of information. From DOJ:Agencies within the executive branch of the federal government, including the Executive Office of the President and independent regulatory agencies, are subject to the provisions of the FOIA. (4) However, the FOIA does not apply to entities that “are neither chartered by the federal government [n]or controlled by it.” (5) Thus, it is settled that state governments, (6) municipal corporations, (7) the courts, (8) Congress, (9) and private citizens (10) are not subject to the FOIA. Nor does the FOIA apply to a presidential transition team. (11)

    Nick, though the act specifies executive agencies, the FOIA means an agency has a duty for their employees to be able to supply the information, if the request is legitimate. That includes other agencies information as indicated below would include electronic. This is another gem for CEI.

    So, Nick if employees of the agency has circumvented the record keeping requirement, the agency is violating the FOIA. The expansion by Obama states “An agency should not withhold records merely because it can demonstrate, as a technical matter, that the records fall within the scope of a FOIA exemption.” So, as indicated earlier they may well be in violation of both FOIA requirements and a Presidential Order if they CANNOT, or WILL NOT comply.

    Also, stated “”The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears.” As stated earlier what CEI is doing is NOT tilting at windmills, and now the reasoning for the wording is clear. They are prepaaring legally to hoist those working for IPCC on government time as having broken both law and an executive order.

    From DOJ: The Supreme Court has articulated a basic, two-part test for determining what constitutes “agency records” under the FOIA: “Agency records” are records that are (1) either created or obtained by an agency, and (2) under agency control at the time of the FOIA request. (18) Inasmuch as the “agency record” analysis usually hinges upon whether an agency has sufficient “control” over a record, (19) courts have identified four relevant factors for an agency to consider when making such a determination: the intent of the record’s creator to retain or relinquish control over the record; the ability of the agency to use and dispose of the record as it sees fit; the extent to which agency personnel have read or relied upon the record; and the degree to which the record was integrated into the agency’s recordkeeping system or files. (20) Agency “control” is also the predominant consideration in determining the “agency record” status of records that are either generated (21) or maintained (22) by a government contractor. AND With the passage of the Electronic Freedom of Information Act Amendments of 1996, (45) the FOIA now defines the term “record” as simply “includ[ing] any information that would be an agency record . . . when maintained by an agency in any format, including an electronic format.” (46) AND Given “that computer-stored records, whether stored in the central processing unit, on magnetic tape, or in some other form, are records for the purposes of the FOIA,” (200) agencies should endeavor to use advanced technology to satisfy existing or potential FOIA demands most efficiently — including through “affirmative” electronic disclosures. (201) To do so, and also to meet their “electronic reading room” obligations under the Electronic FOIA amendments as well, (202) all federal agencies must pay increasing attention to the design and development of their sites on the World Wide Web for purposes of FOIA administration. (203) (For a discussion of “electronic reading rooms,” see FOIA Reading Rooms, above.)

    Copyright (c) 1983 University of Cincinnati Law Review.
    University of Cincinnati
    RECENT CASE: ADMINISTRATIVE LAW — FREEDOM OF INFORMATION ACT — AN AGENCY’S UNPUBLISHED TIME OF REQUEST CUTOFF DATE FOR SEARCHING ITS FILES FOR RECORDS REQUESTED UNDER THE FREEDOM OF INFORMATION ACT IS INVALID AS UNREASONABLE UNLESS EXCEPTIONAL CIRCUMSTANCES ARE SHOWN; ALL RECORDS IN AN AGENCY’S POSSESSION, WHETHER CREATED BY THE AGENCY ITSELF OR BY ANOTHER AGENCY, ARE “AGENCY RECORDS.” — McGehee v. Central Intelligence Agency, 697 F.2d 1095 (D.C. Cir. 1983)

  114. John #113
    “What Nick wants to avoid is the duty to comply.”

    I actually have very little interest in that. I’m not subject to it myself, nor am likely to be. I think the IPCC desire to be able to discuss drafts confidentially is very reasonable, and since they are not themselves subject to FOI, I think they will find a way. If necessary, US agency authors will just have to log in from home.

    I’m mainly continuing because I keep hearing assertions about FOI which I think are wrong, and I’d like to see that sorted. Nothing really hangs on it.

    So on your latest, you’ve got a para on who isn’t subject to FOI. Fine. And you finish with the SC extract which I think doesn’t help you at all. But then you come out with:

    “So, Nick if employees of the agency has circumvented the record keeping requirement, the agency is violating the FOIA.”

    and I still can’t see any basis for it. All that I’ve seen in the FOIA that would be a violation is if someone asks for info, they have it (in their control), and they don’t or won’t supply it, without an exemption claim. And there is some high level stuff about having proper FOI officialdom. If there is anything else, then I wish soemone could point to it.

  115. Anonymous said

    Sorry for confusing you with an American idiom. The sentence is Waht Nick wants to avoid is the OSTP and federal excutive agencies duty to comply.

    Further you now are speculating about a red heering, which I note that you are quite capable of detecting in others. Once again, the CEI is using the FOIA and the executive order (EOP) to get at US executive department employees work. That it concerns the IPCC is just who may hold the records. As indicated in the documentation you have been given by myself and others there are two points you do not acknowledge and worse through up red herrings and unrelated issues. Point 1 is that there is a duty to comply for these agencies both FOIA and the EOP. Point 2 the IPCC is brought in because it is where it is alleged these documents may exist. But, the EOP plainly states that OSTP is supposed to try and get them.

    http://www.whitehouse.gov/omb/circulars_a130_a130trans4/ This is from the OMB who was taked to handle FOIA for the executive branch. The particular section you want Nick is 4 Applicability and Scope 6 definitions and 7 Basic considerations and assumptions. You also need to understand that this circular also contains security and right to privacy, as well as other data retention and qulaity acts.

    7.h h.Systematic attention to the management of government records is an essential component of sound public resources management which ensures public accountability. Together with records preservation, it protects the government’s historical record and guards the legal and financial rights of the government and the public.

    7.k k.The open and efficient exchange of scientific and technical government information, subject to applicable national security controls and the proprietary rights of others, fosters excellence in scientific research and effective use of Federal research and development funds.

    Next you need Section 8 Policy 8.a.(a), (b), (e), (f), (j), (k), (l). Then go to 8.b. Agencies must collect or create only that information necessary for the proper performance of agency functions and which has practical utility. So here is where it now becomes mandatory for OSTP to comply. The office is advisng and even working on items with the IPCC, it has practical utility as defined by information here from definitions:

    k.The term “information dissemination product” means any book, paper, map, machine-readable material, audiovisual production, or other documentary material, regardless of physical form or characteristic, disseminated by an agency to the public.

    l.The term “information life cycle” means the stages through which information passes, typically characterized as creation or collection, processing, dissemination, use, storage, and disposition.

    But these are not the only definitions that apply. Nick there is an apparent duty to comply that is alleged to have been circumvented. That they are alledged to have used an IPCC server or cloud does not mean that the IPCC has to give these records, rather it means that OSTP may have not complied with the OMB guidelines and the law underneath these guidelines, and the EOP and law underneath the EOP.

  116. JeffID lost may name for above post.

  117. DeWitt Payne said

    The FOIA is not the controlling authority for records preservation. It’s the Federal Records Act. See this comment at The Blackboard. If records of activities are not being maintained, that’s a potential violation of the FRA not the FOIA. If the justification for not retaining records is that the activities were not related to the function of the agency, that would be grounds for termination of employment. Using something like an off-site server would also seem to be a violation of the FRA.

  118. Neil said

    #117 Thanks for pointing to that. I had a quick look for this type of Act this morning for the USA as I am aware of one in NZ. This is Nick’s missing link……..

  119. #117
    Thanks, DeWitt. I was having so much fun last night I never got to this clarity, even though I was quoting from FRA.

    If the agency employee fails to maintain records of their official activity, they are violating FRA.

    If the agency fails to turn over a requested record, they are violating FOIA.

  120. Anonymous said

    And apparently , an executive agency may also fall short of complying with a presidential executive order.

  121. Craig Loehle said

    Nick is also foisting a fiction that these people are working from home. The federal government is not very prone to allowing that, and some of these people, such as Susan Solomon, spent 6 months to a year or more working on IPCC stuff. If you work for a year and keep no records of your work, no emails, no documents, no reports, good luck proving that you did anything. Why should they keep paying you? In reality, almost all of them worked from their gov offices using gov computers and gov internet connections. And no records? Really? Looks like a violation of the Federal Records Act!

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