16 July 2010

CEI and NASA: Appeal

All US agencies have an internal appeals procedure if requesters are unsatisfied with the initial response. CEI was unsatisified with responses to their first three FOIA requests.

Horner Appeal

The appeal was rejected for two of the three requests, and for the third, it was remanded to GSFC for a 'do-over'.

GISS FOI Response to Appeal

Follow-on: Lawsuit (ongoing)

Issues: FOIA Appeals, definition of agency records

15 July 2010

Delg. Bob Marshall and UVa

Delegate Bob Marshall (Virginia State legislature) posted this FOI under the Virginia statutes (Dec 19 2009):

Marshall UVa

The request was refused due to non-existence of any responsive documents.

Issues: Prior existence of records

13 July 2010

Rep. John Linder and NASA

Congress can of course request any information from any agency without going through the FOIA process. This is one example from Rep. John Linder who did use FOIA from Dec 2009:

Linder to NASA

Issues: Information in the public domain, broadness of request

Judicial Watch and NASA: Part II

Judicial Watch (Sourcewatch) submitted the following Dec 9 2009 request to NASA:

Judicial Watch FOIA Request #2

This request was made in the wake of the CRU email leak and was a attempt to find links between IPCC, CRU, GISS and the White House.

Follow-on: Not known

Issues: Prior existence of records, predecisional privilege

12 July 2010

Michigan: Howell Email descision

Michigan uses Federal FOIA as precedent, but in this case is a little ahead of federal case law.

Howell v Howell Zarko

The issue is to what extent personal emails sent by state employees - even if the employees are misusing state equipment - are agency records. The court ruled that personal emails do not automatically become 'agency records' just by virtue of being captured in an agency email system.

Issues: Agency records

11 July 2010

US FOIA Issues: Agency Records

The US FOI Act covers US federal agencies (note this does not include Congress) and facilitates the release of 'agency records'. This is not defined in the legislation and has subsequently been clarified in extensive case law.

The Dept. of Justice offers some guidance and the issues are discussed extensively in the Procedural Requirements document.

There are no blanket and general rules for determining whether a specific record is an 'agency record' for the purposes of FOIA. It is not the case that any record in an Agency system or on an agency computer is automatically an agency record. Instead there is a balance argument that must be applied for any record (even down to each individual email). The points to be considered are the following:

  • Creation -- Was the document created by an agency employee on agency time, with agency materials, at agency expense? (if not, then it very likely is not an "agency record," on that basis alone.)

  • Content -- Does the document contain "substantive" information? (If not, then it very likely is not an "agency record," on that basis alone.) Does it contain personal as well as official business information?

  • Purpose -- Was the document created solely for an individual employee's personal convenience? Alternatively, to what extent was it created to facilitate agency business?

  • Distribution -- Was the document distributed to anyone else for any reason, such as for a business purpose? How wide was the circulation?

  • Use -- To what extent did the document's author actually use it to conduct agency business? Did others use it?

  • Maintenance -- Was the document kept in the author's possession, or was it placed in an official agency file?

  • Disposition -- Was the document's author free to dispose of it at his personal discretion? What was the actual disposal practice?

  • Control -- Has the agency attempted to exercise "institutional control" over the document through applicable maintenance or disposition regulations? Did it do so by requiring the document to be created in the first place?

  • Segregation -- Is there any practical way to segregate out any personal information in the document from official business information?

  • Revision -- Was the document revised or updated after the fact for record-keeping purposes?

One net effect of these points is that personal communications, even if saved on an agency system, that are with non-agency personnel, or that do not discuss agency business, are not likely to be 'agency records'. This is an entirely separate issue from whether such communications can be examined by the agency or employer.

Note too that:

  • Agencies are not required to answer questions posed as FOIA requests.

  • Nor does the FOIA require agencies to respond to requests by creating records

  • Agencies also cannot be required by FOIA requesters to seek the return of records over which they retain no "control"

  • Requesters cannot compel agencies to make automatic releases of records as they are created, which means that requests cannot properly be made for "future" records not yet created.

Judicial Watch and NASA: Part I

Judicial Watch (Sourcewatch) submitted the following Dec 4 2009 request to NASA:

Judicial Watch FOIA Request #1

Note the similarity to this earlier CEI request. The response to both was posted in the GSFC Electronic Reading Room in Dec 2009 and with a further update in April 2010.

Use of information: JW blog posts: Jan 2010, Apr 2010; NASAWatch; Rabett Run

Southeastern Legal and NSF

The Southeastern Legal Foundation (SLF) (Sourcewatch) is part of a petition to EPA to reconsider the Endangerment finding on carbon dioxide. Presumably in support of that, they sent 8 separate (but identically worded) FOIA requests to NSF regarding the grants, data and policy implications of the work of 8 scientists and co-workers and their universities, specifically:

  1. David Archer (U. Chicago)

  2. Malcolm Hughes (U. Arizona)

  3. Lee Kump (PSU)

  4. Michael Mann (PSU)

  5. Ray Pierrehumbert (U. Chicago)

  6. David Rind (NASA/Columbia U.)

  7. Gavin Schmidt (NASA/Columbia U.)

  8. Eric Steig (U. Washington)

Each request was similar to this one, except with the name and institution replaced:

10-186F 5996

Note that NSF is not a data repository (request 1), nor a custodian of policy advice from scientists (#3) - and certainly not that given to other agencies - and so most of this information is not going to exist at NSF. The extension of the vague requests to the entire university (#4) will also likely fail as being impossible to respond to.
Much of the information on awards, grants and funding to all NSF recipients (#2) is already in the public domain.

Issues: Prior existence of records, broadness of response

CEI and NASA: Part III

In January 2010, CEI filed another request to NASA GISS.

This was notable for the breadth of the request (which would lead the Dept. of Justice to throw it out as being impossible to serve), but also for the widening of the lists of scientists targeted. Of the 17 scientists named, one 'Ron Milley' does not exist, and 3 do not work for 'NASSA' [sic] at all.

Commentary at Dot Earth.

CEI and NASA: Part II

In January 2008, CEI made a FOI request for all communications by a specific scientist, Gavin Schmidt, related to the blog Realclimate.

FOIA Request #08-040

The issue originally in play here is to what extent correspondence that deals with non-official activities is an 'agency record'.

Issues: Definition of agency records

Follow-on: Response, Appeal (upheld), Second Response, Lawsuit (ongoing)

CEI and NASA: Part I

The Competitive Enterprise Institute (CEI) (Sourcewatch) is in the vanguard of submitting FOI requests for climate scientist communications. Their principle targets have been the NASA Goddard Institute for Space Studies in New York, NCAR in Colorado, the U. of Virginia, and the EPA among others. Their requests to NASA started in August 2007 and first concerned the minor correction of the GISTEMP dataset:

FOIA 07-175

FOIA 07-172

The responses were the posted online in the GSFC Electronic Reading Room.

Follow-up: Appeal (denied), Lawsuit (ongoing).


The 2007 publication of the IPCC 4th Assessment report concluded that global warming was 'unequivocal' and that human activity was very likely responsible for most of the trends in temperature over the last 50 years. Since then people and organizations for whom these conclusions are inconvenient have turned increasingly to legalistic tactics rather than dealing with the science directly.

The number of Freedom of Information requests directed at scientist at the federal or state level in the US, or any publicly funded scientist in the UK has increased enormously. Most of these requests are not for data, nor in order to illuminate the workings of government, but rather to find personal and sometimes private communications that can be mined for embarrassing out-of-context quotes. These requests are being used as 'strategic lawsuits against public participation' (SLAPP suits) since they are often targeting scientists in the public eye in order to create a chilling effect on public activity by other climate scientists.

Few people are aware of how these laws are being used for these purposes, nor the extent of the requests being made. Additionally, many of the people targeted by these requests have little understanding or experience in how the laws are actually applied and what is and is not releasable.

This blog will aim to document the extent and content of these requests, provide resources for scientists who are targeted, and draw attention to how these requests are being responded to, and the use to which the information released is being put.

This blog is not intended to be read as a criticism of the principle of FOI laws, which in general do a very good job of holding government to account. But the current uses of these laws to target and harass individual scientists - who are not politicians - is new, and certainly worthy of note.

The information here is simply provided as is, and no claims to legal expertise are being made. For legal advice, please contact a lawyer.