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.

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

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.

ATI.appeal.decision

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.

Exceptions

(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

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).

Exception

(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:

UNIVERSITY of GUELPH OFFICE OF THE PROVOST

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

FOI requests for unpublished data

Steve McIntyre made a FOI request to CRU for details of an analysis that was mentioned in one of the UEA emails, but not subsequently published (at least not yet).

Furthermore, the raw data for the analysis is already available online.

This is curious for a number of reasons. First, UK FOI explicitly exempts work-in-progress or draft analyses that are being readied for publication for being release (section 22):

Information is exempt information if—

(a) the information is held by the public authority with a view to its publication, by the authority or any other person, at some future date (whether determined or not),
(b) the information was already held with a view to such publication at the time when the request for information was made, and
(c) it is reasonable in all the circumstances that the information should be withheld from disclosure until the date referred to in paragraph (a).

Similarly, it would seem that the "unfinished product", or "intellectual property rights" exemptions would immediately kick in. Third, the raw data is already available, and so the information required is the description of the intellectual work of analysing the data, not the data itself, before that has been described in the scientific literature.

Should this request be upheld, it would seem to spell the end of privacy for any publicly funded research in the UK. Any rival researcher could simply ask for all work in progress whenever they liked.



Issues: Unpublished data, work-in-progress

Academic Freedom and FOIA

In the Cronon/U. Wisonsin case, the university made an argument that exemptions to the Wisconsin Open Records Act effectively protect academic freedom, defined by them as the right of academics to "to pursue knowledge and develop lines of argument without fear of reprisal for controversial findings and without the premature disclosure of those ideas".

There is no explicit definition of academic freedom or exemption in either Wisconsin or Federal FOIA, and so the claim that academic freedom is protected rests on an interpretation of the statute.

In the UVa case, a letter from 15 organisations, including the AAUP, have urged UVa to apply the same interpretation to the Virginia statute.

The basis for an effective 'academic freedom' exemption, is given by the U. Wisconsin counsel:

5) Intellectual communications among scholars. Faculty members like Professor Cronon often use e-mail to develop and share their thoughts with one another. The confidentiality of such discussions is vital to scholarship and to the mission of this university. Faculty members must be afforded privacy in these exchanges in order to pursue knowledge and develop lines of argument without fear of reprisal for controversial findings and without the premature disclosure of those ideas. The consequence for our state of making such communications public will be the loss of the most talented and creative faculty who will choose to leave for universities that can guarantee them the privacy and confidentiality that is necessary in academia. For these reasons, we have concluded that the public interest in intellectual communications among scholars as reflected in Professor Cronon’s e-mails is outweighed by other public interests favoring protection of such communications.

This references a balance between differing public interests, and like many 'balance' arguments, is potentially open to judicial review.

Unsurprisingly, ATI feels strongly that the balance should be in favor of disclosure, and may well sue to get a review of the eventual UVa redactions (as CEI has done in the NASA case).

In Virginia law, the relevant passage for similar exclusions would be:

Data, records or information of a proprietary nature produced or collected by or for faculty or staff of public institutions of higher education, other than the institutions' financial or administrative records, in the conduct of or as a result of study or research on medical, scientific, technical or scholarly issues, whether sponsored by the institution alone or in conjunction with a governmental body or a private concern, where such data, records or information has not been publicly released, published, copyrighted or patented.

Update: UVa has responded to the letter with a declaration that UVa will use "all available exemptions" consistent with following the letter of the law.

Issues: academic freedom

UVa responses to VFOIA requests

The University of Virginia has collated a timeline of requests and responses to multiple requests under Virginia FOIA. Since the full exchanges between requesters and the university are provided, it is a good way to see the issues that can arise.

First note, that while anything can be requested, the response depends on multiple issues - whether the records exist, whether they are 'public records', whether they fall under any exemptions in the FOIA law, and whether they are protected from disclosure under any other relevant laws (such as FERPA, which protects students personal information). Note that Virginia FOIA requires the requester to be a Virginia resident (which is why Chris Horner of CEI is now using ATI as a vehicle for these requests).

For any specific request, particularly for broad categories like 'all emails', it is not a priori obvious that a specific individual email that meets the search criteria is releasable. That generally needs to be decided on an email-by-email case. In response to Greenpeace (who requested records related to Pat Michaels), UVa rightly made it clear that no 'unfiltered' release of records would be possible.

Given then that extremely broad requests of emails will likely result in thousands of potentially responsive documents, someone needs to go through each of those records to assess the releasability. Federal and Virginia FOIA allow for the charging of fees to cover the cost of searching, redacting and reviewing documents, though this is sometimes waived in federal cases where agency staff are permanently assigned as FOIA support etc. Note that ATI initially challenged the application of fee for reviewing the documents, but UVa insisted that this was in fact permitted under guidelines from the VFOIA Advisory Council.

UVa therefore has requested deposits of fees prior to commencing any individual email review process, based on the reasonable estimate that one person can review roughly 90 emails an hour. (Other estimates from similar situations might give 70 to 100 emails/hour, but it depends clearly on the complexity of the material). UVa appears to be using law students to perform the reviews and are charging $25/hour for that. In cases referred to here, the number of documents is on the order of 35,000 individual records - implying eventual costs of review at $8000 or more (final costs to be decided once review is complete).

Issues: Fees, exemptions, standing

ATI FOIA requests at UVa

ATI and Del. Bob Marshall have also put in FOIA requests under Virginia law for all of the emails requested by Ken Cuccinelli as part of his FATA inquiry. Note that the response to a CID under FATA (currently under consideration by the Virginia Supreme Court) has nothing to with what is releasable under FOIA.

ATI FOIA Request to UVa from Mann emails

Marshall had a previous request for Mann's emails turned down since the records did not exist at Virginia. If a backup server that might have responsive records has subsequently been found (as claimed in the ATI request), then anything responsive still needs to be filtered for privacy, communications not related to an official position, academic freedom concerns etc.

Virginia FOI laws can be found here.

Cronon: U Wisconsin responds

As expected, the U. Wisconsin response to the Open Records Request for William Cronon's emails will assert privacy, personal records, and academic freedom exemptions:

Members of the campus community,

Two weeks ago UW-Madison received an open records request from Stephan Thompson, deputy executive director of the state's Republican Party, for email records of Professor Bill Cronon.

Professor Cronon is the Frederick Jackson Turner and Vilas Research Professor of History, Geography and Environmental Studies at UW-Madison. He is one of the university's most celebrated and respected scholars, teachers, mentors and citizens. I am proud to call him a colleague.

The implications of this case go beyond Bill Cronon. When Mr. Thompson made his request, he was exercising his right under Wisconsin's public records law both to make such a request and to make it without stating his motive. Neither the request nor the absence of a stated motive seemed particularly unusual. We frequently receive public records requests with apparently political motives, from both the left and the right, and every position in between. I announced that the university would comply with the law and, as we do in all cases, apply the kind of balancing test that the law allows, taking such things as the rights to privacy and free expression into account. We have done that analysis and will release the records later today that we believe are in compliance with state law.

We are excluding records involving students because they are protected under FERPA. We are excluding exchanges that fall outside the realm of the faculty member's job responsibilities and that could be considered personal pursuant to Wisconsin Supreme Court case law. We are also excluding what we consider to be the private email exchanges among scholars that fall within the orbit of academic freedom and all that is entailed by it. Academic freedom is the freedom to pursue knowledge and develop lines of argument without fear of reprisal for controversial findings and without the premature disclosure of those ideas.

Scholars and scientists pursue knowledge by way of open intellectual exchange. Without a zone of privacy within which to conduct and protect their work, scholars would not be able to produce new knowledge or make life-enhancing discoveries. Lively, even heated and acrimonious debates over policy, campus and otherwise, as well as more narrowly defined disciplinary matters are essential elements of an intellectual environment and such debates are the very definition of the Wisconsin Idea.

When faculty members use email or any other medium to develop and share their thoughts with one another, they must be able to assume a right to the privacy of those exchanges, barring violations of state law or university policy. Having every exchange of ideas subject to public exposure puts academic freedom in peril and threatens the processes by which knowledge is created. The consequence for our state will be the loss of the most talented and creative faculty who will choose to leave for universities where collegial exchange and the development of ideas can be undertaken without fear of premature exposure or reprisal for unpopular positions.

This does not mean that scholars can be irresponsible in the use of state and university resources or the exercise of academic freedom. We have dutifully reviewed Professor Cronon's records for any legal or policy violations, such as improper uses of state or university resources for partisan political activity. There are none.

To our faculty, I say: Continue to ask difficult questions, explore unpopular lines of thought and exercise your academic freedom, regardless of your point of view. As always, we will take our cue from the bronze plaque on the walls of Bascom Hall. It calls for the "continual and fearless sifting and winnowing" of ideas. It is our tradition, our defining value, and the way to a better society.

Issues: agency records, academic freedom