27 May 2011

UK Guardian: Intimidation by FOIA

The UK Guardian has a story on FOIA requests are being used to intimidate and harass UK scientists:

Freedom of information laws are being misused to harass scientists and should be re-examined by the government, according to the president of the Royal Society.

Nobel laureate Sir Paul Nurse told the Guardian that some climate scientists were being targeted by organised campaigns of requests for data and other research materials, aimed at intimidating them and slowing down research. He said the behaviour was turning freedom of information laws into a way to intimidate some scientists.

Nurse's comments follow the launch of a major Royal Society study into how scientists' work can be made more open and better used to inform policy in society. The review – expected to be published next year – will examine ways of improving access to scientific data and research papers and how "digital media offer a powerful means for the public to interrogate, question and re-analyse scientific priorities, evidence and conclusions".

Nurse said that, in principle, scientific information should be made available as widely as possible as a matter of course, a practice common in biological research where gene sequences are routinely published in public databases. But he said freedom of information had "opened a Pandora's box. It's released something that we hadn't imagined ... there have been cases of it being misused in the climate change debate to intimidate scientists.

"I have been told of some researchers who are getting lots of requests for, among other things, all drafts of scientific papers prior to their publication in journals, with annotations, explaining why changes were made between successive versions. If it is true, it will consume a huge amount of time. And it's intimidating."

It was possible some requests were designed simply to stop scientists working rather than as a legitimate attempt to get research data, said Nurse. "It is essential that scientists are as open and transparent as possible and, where they are not, they should be held to account. But at times this appears to be being used as a tool to stop scientists doing their work. That's going to turn us into glue. We are just not going to be able to operate efficiently."

Nurse said the government should examine the issue, and think about tweaking freedom of information legislation to recognise potential misuse. Otherwise, he predicted, FoI aggression could be in future used by campaigners to cripple scientific research in many other controversial areas of science, such as genetically modified crops. "I don't actually know the answer but I think we have a problem here. We need better guidelines about when the use of freedom of information is useful."

Bob Ward of the Grantham Research Institute at the London School of Economics said the intention of many of those making freedom of information requests was to trawl through scientists' work with the intention of trying to find problems and errors. "It's also quite true that these people do not care about the fact that it is causing a serious inconvenience," he said. "It is being used in an aggressive and organised way. When freedom of information legislation was first contemplated, it was not being considered that universities would be landed with this additional burden."

Evidence of the aggression first began to emerge when personal emails and documents were stolen from the University of East Anglia's (UEA) servers in November 2009 and leaked on to the internet. Climate sceptics seized on the contents as evidence that apparently showed scientists were colluding to keep errors in their research hidden and prevent rivals' research from being published at all.

In an independent inquiry a year later, the scientists at the UEA's climatic research unit (CRU) were cleared of any misconduct, but Muir Russell, the former civil servant who led the investigation, found a "consistent pattern of failing to display the proper degree of openness", although he stressed he had no reason to doubt the CRU team's honesty or integrity.

"The current fog of ambiguity concerning, for example, drafts of research papers produced in other countries is deeply damaging to our scientific standing," said Tom Ward, pro vice-chancellor at UEA. "Part of the discussion should be informed by what we can learn from Scottish and US law, which explicitly recognise the need to extend some protection to research in progress."

Myles Allen, a climate scientist at the University of Oxford, said he has been involved in many long-running exchanges with people making freedom of information requests for his data. "In the case that went on the longest, I answered all the guy's questions. I spent half a day writing a long email explaining the answers to all his questions, but it wasn't really that which he was after: he was after some procedural questions about IPCC [Intergovernmental Panel on Climate Change]. He wanted some evidence that an IPCC statement had been changed – it wasn't about science at all; it was about procedure."

He added: "I can see what someone with a very specific political comment might gain from an unguarded comment, but it's very hard to see how science or public understanding of science gains from every exchange between scientists being made public. No other discipline operates in that way. The net effect of this, incidentally, is that senior people in government and senior scientists close to government are basically just using the telephone again. Which is very bad for science because email exchanges are an extremely useful record."

Nurse said that scientists were not blameless. At the University of East Anglia, they were too defensive in their responses to freedom of information requests over climate change, but their experience was one among many that highlighted a need for better training for scientists in the most appropriate way to respond to information requests.

Ward agreed that most universities do not have a very good grasp of the requirements of freedom of information law. But he added that researchers should be able to have confidential conversations with colleagues and researchers in other universities, and that it was increasingly difficult for researchers to do that by email.

"There's no other walk of life where every conversation you have ought to be made public," he said. "There's a massive double standards because a lot of the people submitting these requests are themselves not transparent at all. They don't reveal their sources of funding or the details of what they're doing behind the scenes."

He added that the best way for scientists to respond was with more openness. "Scientists are going to have to get used to the idea that transparency means being transparent to your critics as well as your allies. You cannot pick and choose to whom you are transparent," he said. "Increasingly it is going to be an issue for anyone working in contentious areas. Part of retaining the public's confidence and trust is transparency and openness, and scientists should accept that that is part of the price of having the people's trust."

There is a response letter from Maurice Frankel (from the Campaign for Freedom of Information) who suggests that the existing exemptions should protect scientists from the more unreasonable requests:

The president of the Royal Society calls for changes to freedom of information laws to prevent them being misused (Data laws 'misused' in climate change row, 26 May). However, existing safeguards address many of his concerns. Deliberate attempts to "intimidate" scientists, if that is what they are, can be refused under the Freedom of Information Act's safeguards against vexatious requests. Unreasonable requests for all pre-publication drafts of scientific papers can be refused under an exemption for information due for future publication. Explanations of why changes to successive drafts were made do not have to be provided unless they exist in writing. Multiple related requests from different people, if they are co-ordinated, can be refused if the combined cost of answering exceeds the act's cost limit.

Another academic is quoted as saying many FoI requests are made in order to find problems and errors – but that is a valid use of the act. It was the misguided attempt to deny ammunition to critics that led to the Climategate fiasco. The resulting independent review found there had been an "ethos of minimal compliance (and at times non-compliance) … with both the letter and the spirit" of the legislation, and that the campaign of requests to the UEA climatic research unit was partly the result of its own "unhelpful" response to earlier requests. It is not clear that much has changed.

It is worth noting that Frankel does not deny that unreasonable FOI requests are being made as a form of harassment. Nor does he note that the use of the exemptions is leading to a large number of rejections of FOI requests, which in and of themselves are being used as evidence of an unwillingness of researchers to follow FOI, a meme he also propagates. This is a double bind, researchers and institutions are criticised for using exemptions that exist in the law since that is 'unhelpful', while at the same time are being told to not complain about harassment because there are exemptions that can be used.

Greater clarity in the law about the status of unpublished work and drafts would be a big step in defusing this particular issue.

25 May 2011

ATI & UVa: Reviewing exempted material

Amid some legal gamesmanship from ATI (filing suit (pdf) against UVa during the middle of an ongoing discussion), the Virginia Court has set out the timetable for release and review of exempted material in the UVa/Mann case:

ATI v. UVa Protective Order (pdf)

This is a consent decree which means it was negotiated by the lawyers and not imposed by force of law or by the judge. It has two parts, the first a 90 day schedule from today to release the non-exempt material (some of which has already been released). This seems rather a loose timetable compared to what ATI was demanding. However the second section is a little odd. This covers the case of ATI objecting to any (or all) of the UVa exemptions. Since it is almost guaranteed that ATI will object, it makes sense to set out a process by which this will be adjudicated.

In federal FOIA, this is normally done by the production of a Vaughn Index, which the 5th Circuit has ruled is actually mandated in the case of any challenge to exempted materials. A Vaughn index is essentially a listing of all the exempted material, along with the reason for exemption but which doesn't in itself reveal what the exempted material actually is (for obvious reasons). Thus it might be a list of dates and times of emails received or sent, the topic, and the reason why it is not being released. Disputes over the exemption can then occur, with the judge deciding, in camera, whether the exemption is valid or not.

However, in this case, UVa counsel has agreed to have all the exempt material reviewed under seal by the requesting attorney's themselves! While the attorneys (Horner and Schnare) have signed non-disclosure agreements under threat of contempt of court and other sanctions, it seems highly likely that anything found which remains exempt that is interesting enough will not actually remain confidential. Thus it is surprising that UVa agreed to this. To give an example, let's assume that material reveals personal information would clearly be exempt from disclosure (for instance a potentially embarrassing medical condition among Mann's correspondents). Given that knowledge, the requestors might start to investigate to find independent corroboration of this fact. This corroboration might be safely revealed without risk of contempt of court even though the initial impetus for that line of enquiry came from exempt material. Furthermore, nothing would stop ATI from insinuating that damning material existed but that they were unable to reveal it.

This review will not take place until September, and so it is possible the terms might change.

Issues: Appeals against claimed exemptions, Vaughn Index

07 May 2011

ATI appeal to NASA

The response to the appeal made by ATI concerning personal information related to Jim Hansen's requests for permission related to outside activity has now been filed.


Unsurprisingly, NASA has reaffirmed that information related to personnel matters is exempt from FOIA disclosure and that absent any prior evidence of misconduct, there is no compelling public interest that would trump the concerns of privacy protection.

On the second issue related to a potential misreading of one of ATI's requests, the issue has been remanded to NASA GSFC for a de novo search for relevant documents.

Issues: personal information exemptions, existence of records

NIWA/BOM, peer review and FOI

In Australia, FOI laws have similar exemptions to US FOIA regarding information about deliberative processes:

A document is conditionally exempt if its disclosure under this Act would disclose matter ( deliberative matter ) in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of:

(a) an agency; or

(b) a Minister; or

(c) the Government of the Commonwealth; or

(d) the Government of Norfolk Island.


(2) Deliberative matter does not include either of the following:

(a) operational information (see section 8A);

(b) purely factual material.

This refers to internal discussions, drafts etc. of reports which were ultimately for publication etc. It has also been used to support a general exemption for peer review documents (i.e. confidential reviews, responses to reviewers etc.).

The request in this case, from Warwick Hughes, asked for peer review materials relating to a review by an Australian agency (BoM) of work by a New Zealand agency (NIWA) (see here for more details on the work in question). This clearly raises issues of international relations (another common theme in FOI legislation), and indeed, BoM make the case that release of a confidential peer review process with an international agency would damage relations between them.

Finally, in refusing Hughes request in the most part, BoM provided a listing of all responsive documents, and whether they would or would not be released. In the US, this is termed a Vaughn index and is frequently requested in cases where requested documentation has not been released. In itself, it often provides additional information (on the nature of the responsive documents, dates, correspondents etc.) that might be relevant to the requesters need, even if the content is not released.

Issues: peer review, international relations, Vaughn index

06 May 2011

Canadian FIPPA and Academic Freedom

Canadian provinces also have FOI laws (generally known as Freedom of Information and Privacy Protection Acts or FIPPA). Interestingly there is a specific academic freedom exemption (at least in Ottawa).


(8.1) This Act does not apply,

(a) to a record respecting or associated with research conducted or proposed by an employee of an educational institution or hospital or by a person associated with an educational institution or hospital.

This was recently used in response to a request for emails from Ross McKitrick or University of Guelph:


Dear Mr. xxxxxxx,

I write in response to your request which was received by the University on May 3, 2010 under the Freedom of Information and Protection of Privacy Act (FIPPA) for access to the following:
“…copies of all letters written to and received from Stephen McIntyre, Patrick J. Michaels and Anthony Watts for the period of 2002 to current date by Ross McKitrick of the University of Guelph. The information is to include all copies of documents that may be backed up in mail servers.”

Your request for access to the responsive records is denied. The reasons for this decision are outlined below.

Subsection 65(8.1) of FIPPA states that the Act does not apply to “a record respecting or associated with research conducted or proposed by an employee of an educational institution, or by a person associated with an educational institution”. This exclusion is intended to preserve academic freedom and competitiveness; in particular with respect to specific, identifiable research projects that have been conceived by a faculty member of the University. Records identified as responsive to your request are in regard to research being conducted or proposed by the authors, thereby excluding them from the scope of the Act.

Additionally, s.21(1) of the Act requires that the University refuse to disclose personal information to any person other than the individual to whom the information relates. Responsive records that were not respecting or associated with research conducted or proposed by Professor McKitrick were personal in nature; therefore, the University is obliged to protect these records.

In light of these factors, your request for access to responsive records is denied.

Issues: academic freedom