Sir Muir Russell’s Failure

  • Date: 30/10/10

At the hearings yesterday, after being stonewalled by Muir Russell about Muir Russell’s refusal to investigate Jones’ delete-all-email request, Stringer turned his attention to Acton, who claimed that he had carried out his own investigation, the results of which were on the UEA website. Here is a rough transcript:

Stringer – … Prof Acton, are you satisfied that these questions weren’t asked? That people in your university were sending out emails suggesting that emails be deleted and that it hasn’t been investigated.

Acton – It has been investigated. I’ve asked them and they’ve assured me that they’ve never knowingly deleted emails subject to [inaudible]

Stringer – Did you ask them under caution?

Acton – My relationship is rather different. It is part of my duty to address that kind of spirit and make sure that I drive it out and establish the fact. Can those emails be produced? Yes, they can. Did those might have deleted them say they deleted them? No, they say that they did not.

Stringer – and you’ve recorded those meeting with Prof Jones

Acton – – if you examine our website

The relevant location at the UEA website appears to be a July 26, 2010 statement by Jones as follows:

Phil Jones comments on questions concerning deletion of emails

Mon, 26 Jul 2010

“As I have said on a number of occasions I do delete emails from time to time – this is usually as part of a regular clear out but sometimes as I go along”.

“Most people seem to do the same to keep their email account manageable and because we are regularly reminded when storage space on our email system is nearly full”.

“There is also an environmental and economic cost to storing emails so it seems to me that it is not good practice just to keep everything”

“It would be very difficult to guess what might be asked for in future so I don’t go around deleting emails just because they might be asked for at some point.”

“I have previously confirmed that I have never knowingly deleted an email that was the subject of an active Freedom of Information request and neither have I deleted data”.

Watch the pea very carefully. Acton is on the thimble.

The emails in most controversy were the surreptitious 2006 emails between Eugene Wahl and Keith Briffa, described by Fred Pearce as a “subversion” of IPCC policies. In these emails, Eugene Wahl substituted his self-serving assessment of the impact of the MM2005 critique of MBH for the assessment that had been distributed to external reviewers in the Second Draft. Although Jones was often and perhaps even usually copied on Briffa emails, Jones wasn’t copied on these furtive emails between Wahl and Briffa.

Let’s look at the narrowest possible construction of Jones’ statement as it pertains to the delete-all-emails incident. At the time of Jones’ delete-all-emails request, it’s possible that the only copies of the furtive Wahl-Briffa exchange were held by Wahl and Briffa, both of whom were asked by Jones to delete the exchange.

Jones’ carefully crafted statement says only that he hadn’t personally deleted the Wahl-Briffa emails. It is silent on whether Briffa and/or Wahl acted on Jones’ request to delete the email record of their surreptitious IPCC correspondence.

Nor does the East Anglia statement explain Jones’ email to University officials that Briffa should (untruthfully) deny the existence of the Wahl-Briffa correspondence, an important part of this incident that Muir Russell didn’t investigate.

The University of East Anglia promised an “independent investigation” into the emails. Yesterday, Muir Russell confirmed what everyone knew – the he didn’t actually carry out an investigation. The only person who claimed to “investigate” was Acton – neither “independent” nor an “investigation”.

Climate Audit, 28 October 2010


UEA Policies and Statutes of Limitations

It is almost impossible to fully dissect the negligence of the Muir Russell inquiry in virtually every aspect of its duties. Muir Russell told the Parliamentary Committee that he didn’t ask Jones (or anyone else) about email deletions since that would in effect be asking them to confess to a crime. If their ‘rigour and honesty” was above question, as he declared, then surely he would have been able to ask them to re-assure him that they had not committed any crimes.

There’s another angle here that hasn’t been discussed though “anonym”, a commenter at Bishop Hill’s pointed out the issue. Prosecutions of an offence under the FOI Act are statute-barred because of a more-or-less unanticipated interaction between the FOI legislation and the statute of limitations for magistrates’ court offences. To avoid the statute bar, prosecution of the offence would have to be initiated within 6 months of the offence, whereas in this case the offence wasn’t discovered until more than 6 months had expired. Minutes of a meeting between the ICO and Muir Russell show that Muir Russell was asked to support a change in the law, but, needless to say, Muir Russell didn’t bother. Because of the statute bar, the ICO would be unable to prosecute and notified Muir Russell that they would not be able to investigate. Muir Russell seized on this information by not investigating either, despite an explicit request from the SciTech Committee that an investigation be carried out by one of the two bodies.

However, Muir Russell’s negligence in failing to investigate goes even further.

The terms of reference for the Muir Russell inquiry in relation to FOI were as follows:

Review the Climatic Research Unit’s compliance or otherwise with the University of East Anglia’s policies and practices regarding requests under the Freedom of Information Act (‘the FOIA’) and the Environmental Information Regulations (‘the EIR’) for the release of data.

The UEA policies are located here and impose a variety of duties on UEA staff, including obligations of records management and compliance with the FOI act. For example:

UEA commits to complying with the Act and all associated Codes of Practice issued pursuant to the Act. This includes a commitment to proper records management processes & procedures.

The UEA’s Policy on Freedom of Information is that it will comply fully with the Act and it will place in the public domain as much information about its activities as is practicable, and subject to the exemptions permitted under the Act will make all other information available on request. In particular, it will conform with the Lord Chancellor’s Code of Practice on the Discharge of Public Authorities’ Functions.

They set out obligations of UEA employees:

17. Members of the UEA. Individual Members of the UEA are responsible for:
a. Knowing their responsibilities under the Act
b. Ensuring that, when they are absent from UEA for any reason, arrangements are in place for their post and electronic mail to be checked or redirected to someone who can deal with it promptly.
c. Responding to requests for information within the normal course and scope of their duties, and, were a request is outside this scope, or they are unwilling or unable to do so, referring the request to the Faculty / Division FOIA Contact.
d. Seeking advice when they are uncertain on how to respond to a request.

One aspect of the law that lawyers are familiar with is that people can be subject to more than one set of obligations. In this case, Jones (and Briffa), as employees of UEA, had duties under the Freedom of Information Act, but, in addition, had duties under various codes of conduct and policies of the university.

Prosecution under the Freedom of Information Act appears to be statute-barred, but there is no corresponding statute of limitations on breaches of UEA codes of conduct. And, when you look at Muir Russell’s terms of reference, he was responsible for investigating compliance with the UEA code of conduct. Muir Russell’s excuse for not directly questioning Jones (and Briffa) under UEA codes of conduct is ironically contradicted by the information given to him by the Information Commissioner’s Office. Jones and Briffa had immunity from ICO prosecution because of the statute of limitations and therefore there was nothing to stop Muir Russell from examining Jones and Briffa for breaches of the UEA code of conduct – as he had been hired to do by the university.

instead, Muir Russell negligently failed to inquire into conduct by Jones and Briffa, and, as a result of this negligence, made blatantly false findings such as the absurd finding that “we have seen no evidence of any attempt to delete information in respect of a request already made” after quoting an email from Jones to various colleagues to do precisely that.

In passing, as always, everything has to be parsed. Obligations extend not just to a sanction against deleting, but to concealing. In an email the previous day – again one which Muir Russell negligently failed to investigate – Jones said that “Keith should say” (untruthfully) that there had been no Wahl-Briffa correspondence pertaining to IPCC.

Instead of Muir Russell carrying out the investigation of item (3) that UEA had contracted with him to carry out, Muir Russell collected his 40,000 pounds without doing the investigation. Instead, as we learned at the hearing the other day, Acton carried out his own “investigation”. Nothing is known of the scope of Acton’s investigation other than the carefully parsed statement by Jones at their website. Did Acton ask questions of Briffa and Osborn? There is nothing on the UEA website to demonstrate this. Nor did Acton’s “investigation” extend to asking Briffa about the documents that he took home – a topic that Muir Russell negligently failed to address as well.

At the hearing, Acton speculated that Briffa took the emails home because he was sick. However, Acton’s “investigation” did not appear to have bothered determining what Briffa had taken home or asking him why. Acton’s statement to the committee was inconsistent with the minutes of Muir Russell’s meeting with IT personnel in December 18, 2009 (noted by Andrew Montford, p 49), in which Colam-French stated

Keith Briffa took home emails that were subject to FOI to ensure their safekeeping.

an inconsistency which Muir Russell did not draw to the attention of the committee.

The key point today is this: there is no 6-month statute of limitations on obligations under the Freedom of Information Act. There was a statute of limitations for the ICO’s ability to prosecute offences, but there is no statute of limitations on misconduct. Muir Russell’s terms of reference required him to carry out an investigation; he negligently failed to do so. The Board of Directors of UEA should ask for their money back.

Climate Audt, 29 October 2010

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