The IPCC And Proprietary Rights – Does The Law Trump Justice?

Written by Dr Tim Ball, Climatologist

Attempts to get critical information from agents of the Intergovernmental Panel on Climate Change (IPCC) meet with little success. Why? They claim immediate response to their work is mandatory for planetary survival and time is running out.

law v truth Here is what Slater reported on March 30 2014.

In a new U.N. report released on Monday morning (Japan time) scientists come to a stark conclusion: Unless the world changes course immediately and dramatically, the fundamental systems that support human civilization are at risk.

If true, surely the world has the right to know every bit of information used for this conclusion, but that hasn’t happened. There’s a contradiction between orchestrated publicity raising the threat, but silence, obfuscation, and outright denial regarding questions about important data, process, and methodology. Suspicions are driven by natural curiosity and desire for complete openness in science, but also by their behavior to date.

What have they got to hide? A great deal, as the leaked Climate Research Unit (CRU) emails attest. CRU countered challenges to their views by setting up the PR web site RealClimate and controlling information such as William Connolley’s editing of Wikipedia entries. Publicly they played the victim card claiming they were ordinary scientists trying to do their work but overwhelmed, possibly deliberately, by Freedom of Information requests. The requests occurred because they refused to provide answers and information. A siege mentality was apparent from the start.

The Wegman Report investigation and analysis of the hockey stick fiasco provides an example in the critical paleoclimate group.

Additionally, we judge that the sharing of research materials, data and results was haphazardly and grudgingly done. In this case we judge that there was too much reliance on peer review, which was not necessarily independent. Moreover, the work has been sufficiently politicized that this community can hardly reassess their public positions without losing credibility.

The latest effort to get information released was thwarted by a court ruling regarding Michael Mann’s material. It said Mann’s work was protected from Freedom of Information (FOI) requests due to the “proprietary nature” of the information. How this impinges on the Amicus Brief, filed by a consortium of media in Virginia to obtain the same information, remains to be seen. The real issue is the data he is withholding, but that is not the Amicus concern. The opening paragraph of the Argument explains,

Exemptions to VFOIA (Virginia Freedom of Information Act) must be narrowly interpreted to comply with the legislative intent behind the law and to ensure the public and the news media sufficient access to the government to promote an understanding of its operations. Public universities are necessarily included in VFOIA and the media has a strong interest in being able to monitor University spending operations. While truly proprietary information in the possession of a public university should not be subject to request under VFOIA and in fact is properly exempted, email among professors is not entitled to a blanket treatment as proprietary. Instead, such communications are an essential part of the functioning of the University and must be subject to public scrutiny. Because such communications have been held not to implicate academic freedom, and because the type of email at issue here does not include unpublished information in which the professors or the University have a competitive interest, it must be subject to VFOIA. The lower court’s broad definition of “proprietary nature” cannot stand if VFOIA is to retain any meaning.

Openness and access for the media are important but abrogation of that responsibility by the mainstream media (MSM) allowed and encouraged CRU and IPCC behavior.

An appeal is necessary because of the nature of the material; taxpayers funded its production; and it is the basis of globally changing policy. State Attorney General Ken Cuccinelli used the “Fraud against Taxpayers Act” against the University of Virginia when seeking Michael Mann’s work. When an author receives compensation does the ownership of the article belong to the payee, unless otherwise agreed? Did any of the IPCC participants contract retained ownership of their work? Participation in production of a public document with global policy implications implies you will provide full details in its derivation.

Leaked CRU emails indicate important players, like Phil Jones, CRU Director, anticipated the questions. He advised people how to hide and avoid FOI requests. Here is an email he sent on 2 February 2005.

Just sent loads of station data to Scott. Make sure he documents everything better this time! And don’t leave stuff lying around on ftp sites – you never know who is trawling them. The two MMs have been after the CRU station data for years. If they ever hear there is a Freedom of Information Act now in the UK, I think I’ll delete the file rather than send to anyone. Does your similar act in the US force you to respond to enquiries within 20 days? – our does ! The UK works on precedents, so the first request will test it.We also have a data protection act, which I will hide behind. Tom Wigley has sent me a worried email when he heard about it – thought people could ask him for his model code. He has retired officially from UEA so he can hide behind that. IPR should be relevant here, but I can see me getting into an argument with someone at UEA who’ll say we must adhere to it!

On 10 December 2008 he wrote to Ben Santer;

Haven’t got a reply from the FOI person here at UEA. So I’m not entirely confident the numbers are correct. One way of checking would be to look on CA (Climate Audit), but I’m not doing that. I did get an email from the FOI person here early yesterday to tell me I shouldn’t be deleting emails – unless this was ‘normal’ deleting to keep emails manageable! McIntyre hasn’t paid his £10, so nothing looks likely to happen re his Data Protection Act email.

Anyway requests have been of three types – observational data, paleo data and who made IPCC changes and why. Keith has got all the latter – and there have been at least 4. We made Susan (Solomon) aware of these – all came from David Holland. According to the FOI Commissioner’s Office, IPCC is an international organization, so is above any national FOI. Even if UEA holds anything about IPCC, we are not obliged to pass it on, unless it has anything to do with our core business – and it doesn’t! I’m sounding like Sir Humphrey (bureaucrat in English TV comedy series) here!

And then a devastating postscript in a 21 February 2005 email to Michael Mann, cc’d to Bradley and Hughes.

PS I’m getting hassled by a couple of people to release the CRU station temperature data.

Don’t any of you three tell anybody that the UK has a Freedom of Information Act !

On 21 January 2005 Phil Jones responded to concerns about FOIA from Tom Wigley, former Director of the CRU, grandfather overseer of the IPCC central characters.

As for FOIA Sarah isn’t technically employed by UEA and she will likely be paid by Manchester Metropolitan University. I wouldn’t worry about the code. If FOIA does ever get used by anyone, there is also IPR to consider as well. Data is covered by all the agreements we sign with people, so I will be hiding behind them. I’ll be passing any requests onto the person at UEA who has been given a post to deal with them.

IPR is Intellectual Property Rights and similar to the Proprietary Rights (PR) Michael Mann used to prevent release of his material. Jones suggests it is the final fall back position and so far it seems to work for Mann.

The Virginia media group Amicus Brief may redress problems created by Mann’s use of PR. Mann knew that as a “public figure” he was subject to a different level of what was defamatory. Shouldn’t that also apply to his PR? He tried to downplay the challenge claiming he was a ”reluctant public figure”. This reluctance didn’t prevent him promoting public adulation and recognition by bragging about and falsely claiming he was a Nobel Prize winner. Actually, the Nobel Institute gave it to the IPCC for their contribution to world peace. This categorically implies the IPCC work had global implications and therefore much greater consequence.

Mann consistently advances the importance of his work and the threat it confronts. He makes the link in such works as, “Do Global Warming and Climate Change Represent A Serious Threat To Our Welfare and Environment? He pushes the same message in manytelevision appearances. These are hardly the activities of a “reluctant person.

In my opinion this changes the standard of disclosure for his data and work. What is the basis for such an alarmist message that demands world-changing action with economic and social upheaval? Taxpayers who funded and are impacted have a right to know.

Earlier I said the PR was the final fall back position, but that only applies to legal actions. Phil Jones used a few unscrupulous tactics successfully. He convinced the University of East Anglia (UEA) that they should not have to reply to request from Steve McIntyre’s Climate Audit. He did it by denigrating and demeaning them with phrases like types of people in his 3 December 2008 email to Wigley,

When the FOI requests began here, the FOI person said we had to abide by the requests. It took a couple of half hour sessions – one at a screen, to convince them otherwise showing them what CA was all about. Once they became aware of the types of people we were dealing with, everyone at UEA (in the registry and in the Environmental Sciences school – the head of school and a few others) became very supportive.

Jones anticipated FOI request for emails by advising erasure. On 2 February 2005 he wrote,

If they ever hear there is a Freedom of Information Act now in the UK, I think I’ll delete the file rather than send to anyone.

Did this attitude cause him to use the second defensive technique of losing the data? On 29 May 2008 he advised Mann and others to erase emails.

Can you delete any emails you may have had with Keith (Briffa) 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.

Apparently, Mann’s material or data is not erased or lost yet. Presumably he believes the PR ruling provides all the protection he needs.

Data Mann withholds was used to create the “hockey stick” handle and data Phil Jones lost created the blade, an event he said was “not acceptable”. The graph dominated the 2001 IPCC Report as Ross McKitrick detailed. The Report was pivotal in convincing the world that human produced CO2 was causing global warming. The hockey stick graph became the poster child.

Justice demands that Mann’s claim of Proprietary Rights be offset by the way in which the data and work was funded, produced and used. Funding was public at all levels, the IPCC is a UN agency globally funded, their work received maximum public approval with a Nobel Prize, their work was consciously directed and promoted to influence public policy through the Summary for Policymakers that profoundly altered national and international policies for energy and economies. If they believe the work done is so valuable, why do they persist in keeping it from the public? It is another example of the gap between justice and the law, especially as it relates to climate and the environment.

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