By Steve McIntyre, Climate Audit

Breaking news: Today probably marks the closing chapter of the longstanding FOI request for CRUTEM station data. The UK Information Commissioner (ICO) has rendered a decision (see here) on Jonathon Jones’ appeal of the UEA’s refusal to provide Prof Jones with the CRUTEM station data that they had previously provided to Georgia Tech. The decision that can only be characterized as a total thrashing of the University of East Anglia.

Professor Jonathan Jones of Oxford University (like me, an alumnus of Corpus Christi, Oxford), is a Bishop Hill and CA reader and was one of several CA readers who requested the CRUTEM version sent to Georgia Tech earlier that year. (Contrary to disinformation from Nature, relatively few readers requested CRUTEM data; most FOI requests at the time were for the supposed confidentiality agreements prohibiting data being sent to “non-academics” - agreements that the University was unable to produce.

Jones’ request for CRUTEM data, like mine, was refused by UEA. Like me, Jones appealed the refusal at UEA (the first stage). On Oct 23, 2009, UEA rejected his appeal. (My appeal was rejected about 3 weeks later on the very eve of Climategate.) While I didn’t pursue the appeal to the ICO, Prof Jones did appeal and the present decision is the result of this appeal. I was unaware that this appeal was pending and the decision came as a surprise to me. Since the story started at CA, Andrew Montford and Prof Jones decided that news of the decision should also be broken here. I anticipate that Bishop Hill will also cover the story.

I urge readers to read the thoughtful decision. My own comments will be restricted to some legal aspects of the decision that intrigued me.

As a first comment on the University’s defence - in keeping with similar refusals of other requests, rather than focusing on their best line of argument,the practice of the UEA is to use a laundry list of exemptions - more or less throwing spitballs against the wall to see if any of them stuck. Many of the spitballs seem pretty strained, to say the least. In his ruling, the ICO picked each spitball off the wall and, in the process, established or confirmed a number of precedents that will hopefully encourage fewer spitballs in the future.

They attempted to use the following exemptions:
s 6 - “information already publicly available”
s 12(5)(a) - would have an adverse effect on “international relations, defence, national security or public safety”
s 12(5)(c) - would have an adverse effect on “intellectual property rights”
s 12(5)(f) - would have an adverse effect on the interests of the person who provided the information

The ruling on intellectual property rights interested me in particular, as UEA has attempted to apply this in other cases as well (e.g. Yamal, presently under appeal). The ICO observed that the mere existence of a copyright or database right did not demonstrate the application of s 12(5)(c), let alone the primacy of the exemption over the public interest test.

In addition to other arguments, the UEA claimed both copyright and database rights to the CRUTEM station data and argued that, if released to Prof Jones, they would “lose any right of commercial exploitation of its [CRUTEM] databases. Once the information was released and freely available, extraction and reutilization of the data could be carried out by any party without further recourse to the UEA”. The Commissioner dryly wondered how “UEA might have planned to commercially exploit the specific information requested and how disclosure might have impacted on any plants that it might have developed or been in the process of developing” before rejecting their arguments.

Some of the University’s arguments purporting to uphold their supposed “intellectual property rights” should rig as particularly contemptible to most members of the public. If climate scientists exhort the public to make personal sacrifices, it seems hypocritical that they should claim that their “intellectual property rights” prevent examination of data being used to underpin those requests to make sacrifices.

Lest the University be tempted to delay further, the Commissioner ordered the University to produce the requested data to Prof Jones within 35 days, stating:

Failure to comply with the steps described above may result in the Commissioner making written certification of this fact to ths High Court pursuant to section 54 of the Act and may be dealt with as a contempt of court. 

I also remind readers of my own caveats about this data set and CRU’s reasons for withholding it - cautions expressed at the time (July 2009). My own surmise was that CRU’s data handling was trivial and that the only commercial interest that they were seeking to protect was their own - they didn’t want anyone to realize how little actual work was done by CRU into quality control, improving the quality of metadata or scientifically studying the nuts and bolts of temperature measurement. I also discouraged readers from assuming that CRU data was heavily adjusted from original data. The ongoing issue with CRU was a little different - they argued that UHI had negligible impact on their data set and thus adjustments were unnecessary. My recommendation at the time was that the function had become too important to be carried out in their part-time by professors at a small UK university, that Jones be thanked for his services and that responsibility for CRUTEM be transferred to the UK Met Office. This recommendation makes even more sense now.

Readers should also interpret this decision as case law. In another case involving a different sort of dataset, the ICO could readily find grounds to make a distinction from the circumstances of the relatively sui generis CRUTEM data set.

Congratulations to Prof (Jonathan) Jones for the remarkable success in this ruling. Perhaps Nature and other defenders of CRU obstruction will take note. POST.