There’s been a lot of hype in the past few days about a batch of emails that were either hacked or leaked from the University of East Anglia’s Climate Research Unit (CRU). In the view of some opponents to climate change legislation, these emails depict collusion and conspiracy among leading climate change scientists. Other contrarians accuse at least one scientist of outright illegal conduct: violations of UK’s Freedom of Information Act (FOIA).

Hundreds of emails spanning well over a decade were released, but the ones important for allegations of illegal conduct are those where some of the scientists discuss the implications of the newly (in the UK) enacted FOIA, those that discuss how to deal with FOIA requests, and one that directs the deletion of certain emails.

I’ve learned a little bit about the US’s version of FOIA, so I thought that it would be interesting to examine this accusation of illegal conduct – at least, to the extent that a Canadian studying law at an American law school can explore British information and privacy law.

Freedom of Information for Environmental Information in the UK

An interesting distinction is that the UK actually has both the Freedom of Information Act 2000, as well as parallel legislation specifically for environmental information, under the Environmental Information Regulations 2004 (EIR). The EIR was developed in response to a directive of the European Parliament regarding the public access to environmental information, and is slightly broader in scope with respect to applicable information and bodies than FOIA.

Under Regulation 2(2) of EIR:

“environmental information” has the same meaning as in Article 2(1) of the Directive, namely any information in written, visual, aural, electronic or any other material form on –
(a) the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms, and the interaction among these elements; …

Certainly, data and statistics concerning temperature would seem to constitute “information on the state of elements of the environment.” And, given the important implications of such data, public access would seem to follow the policy of “greater awareness of environmental matters, a free exchange of views, more effective participation by the public in environmental decision-making and…a better environment” that is set out in the European Directive.

For information that thus constitutes “environmental information”, a public authority that holds such has a duty to make it available upon request, under Reg. 5. In addition to imposing that duty, Reg. 5 also allows 20 working days for the public authority to comply. Nevertheless, the duty to disclose requested environmental information is far from absolute.

The EIR attempts to balance the goal of public access to environmental information with other important considerations. As such, the EIR also allows for exceptions to the duty to disclose, under Regulation 12. These exceptions fall under two general categories: disclosure of certain types of information may be refused, and disclosure that would have certain adverse effects may be refused. Save for personal information, these exceptions are discretionary, and the public authority “may” refuse to disclose. Moreover, under Reg. 12(1)(b), chosen exceptions are still subject to a “public interest test,” which balances the exception with public disclosure – taking into account “all the circumstances”.

Types of information

Personal Information is excepted under Reg. 12(3) & Reg. 13, in accordance with UK’s Data Protection Act.

Reg. 12(4) also allows refusal of disclosure for requests of certain types of information:

• information not held when the request is received,
• unreasonable requests,
• requests that are too general,
• information regarding ongoing research or work in progress, or
• internal communications.

Disclosures with Adverse Effect

Reg. 12(5) allows refusal where disclosure of information would adversely affect:

• international relations, defence, national security or public safety;
• the ability of a person to obtain a fair trial, or the ability to conduct a criminal or disciplinary inquiry;
• intellectual property rights;
• the confidentiality in proceedings, as provided by law;
• the confidentiality of commercial or industrial information, as provided by law
• the interests of the supplier of information; or
• the protection of the environment to which the information relates.

With respect to the CRU, it is conceivable that at least a few Reg. 12 exceptions could apply. The exception for manifestly unreasonable requests under Reg. 12(4)(b) is intended to balance public access to information with cost, labour, and complexity that may be involved in requests. In a discipline as complex as climatology, the sheer size of data sets, and the methodology that may be needed to make them meaningful, could involve significant time and energy to fulfill requests. This may also be especially true where third party intellectual property rights are involved.

The intellectual property (IP) rights of both a public authority and of third parties may be protected from disclosure under Reg. 12(5)(c). This exception may arise where the information requested contains or was produced at least in part by work in which third parties hold IP rights. An example might be a large data set composed of smaller data sets from different sources. In this way, requests for information under EIR are not to be a runaround of IP protections.

The concerns underlying these exceptions are not slight. Since their inception in any jurisdiction, FOI requests have been used as much as a sword against agencies and proprietary rights as much as they have been used for genuine informational purposes. As such, very legitimate reasons do exist for avoiding disclosure under permissible exemptions in FOIA or EIR type laws.

Nevertheless, impermissible avoidances obviously constitute violations of such laws. Reg. 19(1) gives us the offence under EIR:

Where –

(a) a request for environmental information has been made to a public authority under regulation 5; and

(b) the applicant would have been entitled to that information in accordance with that regulation,

any person to whom this paragraph applies is guilty of an offence if he alters, defaces, blocks, erases, destroys or conceals any record held by the public authority, with the intention of preventing the disclosure by that authority of all, or any part, of the information to which the applicant would have been entitled.

Whether or not the emails show wrong-doing depends on a number of factors. In this case, much has been made about one email in particular where a scientist directs others to delete emails on a particular topic. Certainly, if there was a specific request for information that the scientist had a duty to disclose and, rather than fulfill that request, a scientist deleted records – this would constitute an offence. But, in order for an offence to have been committed, the applicant must have been entitled to the information.

In this case, do the leaked emails indicate whether a specific, existing EIR request applied to the emails to be deleted? If there was a request for information, was it for information where disclosure could be refused under a Reg. 12 exception? If so, and emails were deleted under these circumstances, has an offence been committed?

This is all the most telling email tells us:

Phil Jones wrote:
>
>> Mike,
> Can you delete any emails you may have had with Keith re AR4?
> Keith will do likewise. He’s not in at the moment – minor family crisis.
>
> Can you also email Gene and get him to do the same? I don’t
> have his new email address.
>
> We will be getting Caspar to do likewise.
>
> I see that CA claim they discovered the 1945 problem in the Nature
> paper!!
>
> Cheers
> Phil

It seems to me that a lot of questions still need to be answered before a determination of wrong-doing can be made. Factual issues such as the timing and content are not obvious from the content of the leaked emails, and could influence whether the scientist in question was acting legally or not. Until the emails can be read with more context, I don’t think we can say either way.

I base this solely on my limited reading of the EIR and the guidance notes provided by the UK Information Commission. Reg.12 exceptions listed above may or may not be applicable. Unfortunately, I haven’t been able to get any UK caselaw, I may be entirely off-base as to what I read into the EIR. But, I found Reg.12(5)(g) particularly interesting: refusal because disclosure would adversely affect the protection of the environment. If anyone can provide any caselaw, or if anyone knows anything about the UK information law at work here, feel free to enlighten me by contributing to the conversation…

UK Information Commissioner’s Office EIR Page