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An academic inquiry which recommended that scientists respond more honestly to FOIA requests has found a creative way to evade FOIA requests.

The University of East Anglia set up the Independent Climate Change Email Review to examine serious charges of academic misconduct by its scientists. An archive containing emails, code and data – which leaked in November 2009 in a file named "FOIA.ZIP", apparently prepared for release by the University – showed academics at University's Climatic Research Unit discussing the deletion of data in response to incoming FOIA requests.

"We also have a data protection act, which I will hide behind," wrote the CRU director Phil Jones. "Can you delete any emails you may have had with Keith [Briffa] re AR4? Keith will do likewise," wrote CRU director Jones, in response to one batch of requests, he later instructed colleagues.

The Information Commissioner's Office said that CRU had breached Section 77 of the Data Protection Act, which highlighted a loophole it wanted to see plugged. (The University would later make a pledge (PDF) to the ICO to mend its ways).

The University appointed Sir Muir Russell to lead the inquiry, which reported last July. Russell's inquiry highlighted "a clear incitement to delete emails" and "a tendency to answer the wrong question or to give a partial answer".

Russell promised Parliament that his inquiry would operate "as openly and transparently as possible", with interviews and notes published. But he failed to meet the promise to critics' satisfaction, and the review itself came under Parliamentary scrutiny when it emerged that Russell had failed to interview any of the leading participants, interview critics, or investigate the email deletions.

David Holland, the retired electrical engineer whose FOIA requests led to the University's breach of the DPA, wanted to know more about the University's contract with Russell, and was puzzled by some specific aspects of the inquiry. The CRU scientists were part of a group that were also in charge of key parts of the IPCC's climate reports – and had appeared to bend the rules to favour their own colleagues. Two of the scientists had received an edited version of Holland's submission to the inquiry – which after editing, made little sense. But who had edited it?

"If this were a criminal or civil matter before the Court what they did with my submission would have got them jailed," Holland told us.

Holland made a FOIA request to find out. From the University of East Anglia, he received this reply:

The University does not consider that there was a contractual relationship with Sir Muir Russell or the inquiry team; it was by way of a public appointment (as is commonplace in these circumstances).

So he turned to Muir Russell, who replied.

I have however taken advice and I am satisfied that I am not, and the Review Team as a whole is not, a public authority for the purposes either of the 2002 Act or the 2004 Regulations. In the circumstances we are not under any legal obligation to make information concerning the Review available to any person under that legislation.

The request was declined by the university because the Russell Review was a public authority, and declined by Russell because it was not a public authority. The University had signed a contract with "The Muir Russell Review Group".

There are implications beyond climate: a similar argument could be made by any public body and a "private contractor".

As an advertisement for public service integrity, the British establishment has seen better days.®

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Holland's analysis (PDF/540KB)

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