A landmark FOIA ruling last week will have far-reaching consequences for how public servants interpret their Freedom of Information obligations. Specifically, public servants cannot delete local copies of a file on their PC and then use its absence as an excuse not to disclose the file - if a backup copy exists on the organisation's systems. In other words: backup servers must be searched for FOIA requests.

The FOIA Tribunal heard the case last December and made its judgement last week. The case was brought by Dr Don Keiller, deputy head of Life Sciences at Ruskin University, Cambridge, against the University of East Anglia's Climatic Research Unit (CRU), the academics at the centre of the 'Climategate' scandals.

CRU's director Phil Jones had earlier shared raw data freely, allowing other scientists to replicate their work, which includes the HADCRUT processed global temperature series. The data was gained by CRU from several sources, including national weather services (NMSs in the jargon).

But after 2003, Jones began to find reasons not to share the data.

"Why should I make the data available to you, when your aim is to try and find something wrong with it?" Jones wrote to climatologist Warwick Hughes in 2005 [ background ].

Some of the reasons Jones (and CRU) offered began to strike people as strange. It emerged that Jones had shared the raw data with a sympathetic source - Georgia Tech. Why couldn't he share it more widely?

Jones first claimed there were clauses preventing disclosure to non-academics. Then it became clear that this was an argument of convenience: these agreements didn't exist. The excuse changed: CRU couldn't share the raw data because of confidentially agreements with the original NMSs. He would even attempt to argue that the raw data had been distributed in a a personal email, not in his professional capacity as a public servant.

"If there ever were such confidentiality agreements, then CRU had breached them right from the start – by sending the 1991 version of the data to the US Department of Energy which published the station data online; by placing the 1996 version online at CRU as part of the ADVANCE/10K program; and by sending station data out on request (not just to Georgia Tech, but to others, including Mann and Rutherford in 2005 and even to me in 2002 before I was identified as a potential critic)," noted Steve McIntyre recently.

This, and some more of the back story (including discussions between Jones and CRU's FOIA office on how to evade their obligations) became public in two releases of internal emails from CRU's servers; the tale is partially recounted here.

Jones argued:

We do concede that information was provided to Georgia Tech without securing consent of the institutions that provided it, and, upon reflection, this is an action we would not choose to take again. However, having made one error does not, in our eyes, justify making the same error again.

In the first batch of Climategate emails, which cover a period to late 2009, we find Jones vowing to "hide behind" loopholes in FOIA legislation, advising colleagues to delete emails. In an email to the Met Office's Jean Palutikof, Jones explained, in discussing a FOIA request from David Holland that, "Keith and Tim have moved all their emails from all the named people off their PCs and they are all on a memory stick."

(The significance of this is discussed in a footnote to this story.)

Data seekers win a victory

Last June, Keiler won a FOIA victory by obliging CRU to disclose the data set Jones had sent to Georgia Tech to anyone who asked for it. But CRU still refused to disclosed some information - specifically, any instructions accompanying the release of data to Georgia Tech. The University of East Anglia argued that the emails were probably not 'held', and so could not be disclosed.

Keiller appealed, and the University enlisted an expensive battalion of lawyers to defend the case. Keiller's account (with Andrew Montford) of the Tribunal can be found here.

In summary, Judge Hamilton presiding over the Tribunal comprehensively rejected CRU's defence, and ordered the University to provide a copy or mirror of the backup server, and an independent contractor to examine it.

The University had delegated the job of finding the missing email to the man who had deleted it - Professor Jones. He also agreed it was inconsistent of UEA to argue that it did not believe the missing email contained any instructions or stipulations. Jones had made the claim that these instructions were only imparted verbally.

Nor was the Judge impressed by UEA's technical defence:

The Tribunal were rather disconcerted by the evidence adduced by the UEA on this issue. Jonathan Colam-French had almost no knowledge of the CRU’s back-up system and was simply unable to answer several pertinent questions.

There was one noticeable absentee from the Tribunal: Professor Jones himself. Keiller and Montford note he has never made a statement under oath.

It should be noted that public bodies can still refuse to disclose information - under Section 12 of the 2000 Freedom of Information Act - if the cost of compliance exceeds "the appropriate limit".

A cynic may expect the cost of performing backup server searches to rocket, overnight.

What do you think? ®

Bootnote

After the first batch of Climategate emails surfaced, they contained what the Information Commissioner's office described as evidence a breach of the Act. MPs demanded an enquiry, which was held in March 2010. At this enquiry, Lord Acton, The University of East Anglia's Vice Chancellor, testified that no emails had been deleted. How could he do this?

We now know this was a semantic deception. The Palutikof email describes staff moving all their emails to memory sticks. As David Holland summarises:

"How else could Acton tell Commons Select Committee that they didn't delete anything, that we [UEA] have all the emails and they can be read. What Russell and Acton didn't tell MPs or the Information Commissioner, is that they were on memory sticks and backups."

Useful and interesting links

The Tribunal Ruling PDF
Keiller's account of the Tribunal
McIntyre reconstructs the excuses: here and here