Hacked climate science emails: were requests for information vexatious?

Original requests for information from the Climatic Research Unit appear to have been genuine, but there are later enquiries that could potentially be seen as aggravating
This is probably the last piece I'll write on the hacked emails saga. Unless the two remaining inquiries throw up something unexpected, there is not a lot more to say. The one remaining, interesting question is this: to what extent were the Freedom of Information (FoI) requests, which Phil Jones and the Climatic Research Unit (CRU) handled so badly, vexatious? Were they genuine enquiries by seekers after truth, or were they designed only to mess the unit around?
The UK Information Commissioner's Office has published five criteria for judging whether or not a request is vexatious:
• Can the request fairly be seen as obsessive?
• Is the request harassing the authority or causing distress to staff?
• Would complying with the request impose a significant burden?
• Is the request designed to cause disruption or annoyance?
• Does the request lack any serious purpose or value?
The hacked emails reveal that the Climatic Research Unit knew that the UK's FoI Act could cause problems even before anyone had used it. In one email, Jones warns that it could prevent him from blocking requests for information:
The two MMs [I think this means Steve McIntyre and Ross McKitrick] have been after the CRU station data for years. If they ever hear there is a Freedom of Information Act now in the UK, I think I'll delete the file rather than send to anyone … We also have a data protection act, which I will hide behind. Tom Wigley has sent me a worried email when he heard about it – thought people could ask him for his model code. He has retired officially from UEA [the University of East Anglia] so he can hide behind that. IPR [intellectual property rights] should be relevant here, but I can see me getting into an argument with someone at UEA who'll say we must adhere to it!
He expands on this argument in another email, which suggests that CRU's main defence – the data couldn't be released because it was covered by other people's intellectual property rights - isn't as pure as the unit makes out:
If FoI Act does ever get used by anyone, there is also IPR to consider as well. Data is covered by all the agreements we sign with people, so I will be hiding behind them.
In a third email, Jones reveals:
I'm getting hassled by a couple of people to release the CRU station temperature data. Don't any of you three tell anybody that the UK has a Freedom of Information Act!
Since I began writing about this issue, I've been assailed by climate scientists and environmentalists, all insisting that Jones did nothing wrong. If these emails meet their standards of professional rectitude I dread to think what else they would find acceptable.
You could argue, as many have, that Jones was responding to a campaign of harassment by climate change deniers. It's true that he was being badgered, and that some of those doing the badgering seemed to be motivated by something other than the unsullied spirit of scientific inquiry. But there was a simple means of getting the hasslers off his back: release the sodding data.
In 2005, Jones made it clear to one of his petitioners that he wasn't going to do that:
Even if WMO [the World Meteorological Organisation] agrees, I will still not pass on the data. We have 25 or so years invested in the work. Why should I make the data available to you, when your aim is to try and find something wrong with it.
This cuts to the heart of the matter. Science must be falsifiable: otherwise it's not science. Those who seek to find something wrong with your data are the first people who should have access to it, not the last. Challenging, refining and improving other people's work is the means by which science proceeds.
Whatever the motivation of the questioners might have been, the original FoI requests appear to have been genuine attempts to obtain information. As the replies sent to one enquirer, Willis Essenbach, show, they were fobbed off in a way guaranteed to make anyone seethe with rage. The letters sent to him by CRU epitomise bureaucratic obfuscation of the kind that anyone who believes in democracy should challenge.
The Canadian mining investor Steve McIntyre, who runs the website Climate Audit, was also fobbed off. In another email, Phil Jones reveals:
Think I've managed to persuade UEA [the University of East Anglia] to ignore all further FOIA requests if the people have anything to do with Climate Audit.
That doesn't seem right either. Just because you don't like someone doesn't mean you can refuse to answer their FoI request.
Now we get to the potentially vexatious requests. Frustrated, reasonably enough, by CRU's blocking tactics, McIntyre made the following proposal on his website:
I suggest that interested readers can participate by choosing 5 countries and sending the following FoI request to david.palmer at ***:Dear Mr Palmer,I hereby make a EIR/FOI request in respect to any confidentiality agreements restricting transmission of CRUTEM data to non-academics involving the following countries: [insert five or so countries that are different from ones already requested]1. the date of any applicable confidentiality agreements;2. the parties to such confidentiality agreement, including the full name of any organisation;3. a copy of the section of the confidentiality agreement that 'prevents further transmission to non-academics'.4. a copy of the entire confidentiality agreement,I am requesting this information for the purposes of academic research.
The last line is, at best, disingenuous. His readers sent 58 such requests, each with a random selection of countries. Hilariously, one of them forgot to change the wording:
I hereby make a EIR/FOI request in respect to any confidentiality agreements restricting transmission of CRUTEM data to non-academics involving the following countries: [insert five or so countries that are different from ones already requested1]
Hat tip: johntherock.
These enquiries could meet at least the last two of the commissioner's criteria - is the request designed to cause disruption or annoyance, and, does the request lack any serious purpose or value? They could potentially be seen as vexatious.
But this doesn't exonerate the Climatic Research Unit, for the following reasons:
1. These requests were made a year after Jones sent the most damaging of his emails:
Mike, Can you delete any emails you may have had with Keith re AR4? ... Can you also email Gene and get him to do the same? I don't have his new email address. We will be getting Caspar to do likewise.
This appears to refer to material relevant to FoI requests, although Jones says that no deletions occurred in response to the email.
The deputy information commissioner has said that FoI requests were "not dealt with as they should have been under the legislation" but the six-month time limit for prosecutions under the FoI Act has passed. Those who seek to excuse this email by maintaining that Jones was responding to vexatious requests have got the sequence wrong.
2. If the original requests for information had been answered properly, Jones's critics wouldn't have scented blood.
3. If the press officers at the university had even the slightest inkling of how to handle this crisis, they would have made these FoI requests public, to show that not everyone hassling CRU was acting in good faith. But they continue to sit like rabbits in the headlights, waiting for the next truck to run them down.
Yes, some of the requests appear to have been vexatious. No, this doesn't justify the way that CRU has behaved. The solution to both problems is the same: if you want to show that your science is sound and if you don't want to be hunted from pillar to post by baying hounds, your work must be open and transparent. Those of us who rely on good science to guide us must stop excusing secrecy and obfuscation.
monbiot.com