This WUWT is going to be discussed. Here’s the bit I consider the core:
CEI has learned of a UN plan recently put in place to hide official correspondence on non-governmental accounts, which correspondence a federal inspector general has already confirmed are subject to FOIA. This ‘cloud’ serves as a dead-drop of sorts for discussions by U.S. government employees over the next report being produced by the scandal-plagued IPCC, which is funded with millions of U.S. taxpayer dollars.
As our FOIA request details, the UN informed participants that it was motivated by embarrassing releases of earlier discussions (“ClimateGate†key among them), and to circumvent the problem that national government transparency laws were posing the group.
CEI reminds OSTP that this practice was described as “creat[ing] non-governmental accounts for official businessâ€, “using the nongovernmental accounts specifically to avoid creating a record of the communicationsâ€, in a recent analogous situation involving lobbyist Jack Abramoff. CEI expects similar congressional and media outrage at this similar practice to evade the applicable record-keeping laws.
This effort has apparently been conducted with participation — thereby direct assistance and enabling — by the Obama White House which, shortly after taking office, seized for Holdren’s office the lead role on IPCC work from the Department of Commerce. The plan to secretly create a FOIA-free zone was then implemented.
This represents politically assisting the IPCC to enable UN, EU and U.S. bureaucrats and political appointees avoid official email channels for specific official work of high public interest, performed on official time and using government computers, away from the prying eyes of increasingly skeptical taxpayers.
CEI also reminds OSTP of a similar, ongoing effort by the administration to claim that records on U.S. government computers belong to the UN IPCC, refusing to produce them under FOIA. This practice was affirmed in a report by the Department of Commerce’s Office of Inspector General earlier this year.
As talks resume next month to forge a successor to the failed Kyoto Protocol, CEI looks forward to OSTP ceasing this unlawful activity, and providing prompt access to the requested records so the taxpayer can know what they, and the IPCC, are up to.
So this morning we requested all relevant records under FOIA, including all records sitting on that server, as they all were provided to U.S. government employees for official purposes. This was filed with OSTP run by controversial ‘science czar†and, we now know, former Mitt Romney ‘climate’ advisor John Holdren. The taxpayer deserves to know about this coordinated effort between OSTP and the IPCC to subvert U.S. law.
I’m waiting to learn some specifics. Generally speaking, it seems to me that FOIA was enacted by Congress precisely to promote transparency. The spirit of the act it is make it possible for members of the public to learn what government agencies are doing. FOIA itself specifies which types of information may be refused when requested.
It seems unlikely FOIA was written in a way that would permit government agencies covered by FOIA at their own volition to set up communication channels with the sole purpose over permitting their employees to get around FOIA.
Being neither an attorney nor an expert in our FOIA act, I don’t know whether the provisions of the act passed by Congress permit such a thing. Acts can be badly written; as the great Mikado observed:
That’s the slovenly way in which these Acts are always drawn. However, cheer up, it’ll be all right. I’ll have it altered next session.
What I don’t know is whether in this case the “slovenly” aspect would writing FOIA in a way that makes it trivially easy for government agencies to erect a layer of opacity around their workings or whether the “slovenly” way would be to write it in a way that does not permit it. With regard to any discussions of alterations of FOIA, I would vote for not permitting the wall of opacity. If setting up back channels not permitted, don’t alter FOIA. If it is permitted, alter to not permit it.
Update: 3:48 pm Full Document Available in PDF
Lucia: Mikado:”That’s the slovenly way in which these Acts are always drawn. However, cheer up, it’ll be all right. I’ll have it altered next session.”
Donna Laframboise’s wonderful new book quotes an IPCC functionary (possibly Susan Solomon) along very close lines with regard to standards for some activity of IPCC authors which might profitably evolve.
Maybe someone with the pdf version can find the quotation.
I keep getting it confused: Is it climate science, or climate scientology? If it is the latter, then it is a religion, and the Freedom of Information Act should not apply.
Freedom of religion is the law in the US.
WUWT’s post contained this CEI statement, “CEI has learned of a UN plan recently put in place to hide official correspondence on non-governmental accounts, which correspondence a federal inspector general has already confirmed are subject to FOIA.”
————–
So, it seems possible that whether or not the IPCC has set up a non-governmental email account and told IPCC personnel to use it instead of their respective government email accounts, it looks (if CEI is correct) like the US government (a Federal Insp General) has already taken a position that even when non-governmental email accounts are used for government business they are subject
to FOIA.
John
It seems to me they should be. Nevertheless, if an agency sets something up to specifically get around them and that mechanism isn’t widely known, it might make it more difficult for people to word their FOIA requests such that they cover the emails one wishes to obtain. It’s a matter of trying to hide by obscurity.
Security by obscurity isn’t a terrific method of protecting things, but it can be somewhat effective.
lucia,
Yes. : )
I just read CET’s FOIA submittal. Wow. WUWT has a link to it.
Now to obscure info from FOIA request even more, not only by non-government email, we have the IPCC setting up non-government internet forums (fora) for conducting their official business with access only by username & password login.
Ironically, it was stated by the IPCC on it web blog that the fora idea was an attempt to block release of info on how the IPCC makes sausage (prepares it reports in-process, in situ and in real time). In addition the IPCC appears to justify this secrecy based on the efforts being “predecisional discussions” which they think exempts them from FOIA. But, CET has a good argument and shows legal particulars that government employee records used in official government sausage making (predecisional discussions) are subject to FOIA and I do too.
This going to be good long discourse and fight. We have the blog media hot on the trail. As Donna L. has just shown, the IPCC and related scientist cannot obscure their sausage making forever, no matter how ugly their sausage making is.
John
I think it’s more than just increasing the degree of difficulty for FoIA requesters. If an email was sent using the governmental account, it is likely that there is a backup of that email somewhere. So if a request is filed for “all emails to/from Dr. Smith concerning topic X”, a search of the archives should locate all such emails. However, if Dr. Smith uses another email account, there is no obvious method for the agency acting on the request to find the emails. About the best they can do is ask Dr. Smith. Now, Dr. Smith (a) might have been deleting all emails as he went along, or at least certain ones; or (b) might deny having any such emails when asked. The agency can not control what’s retained, or provided in response to a request.
Using unofficial accounts does not change the legal status of emails (with regard to FoIA), but it seems to make a practical difference.
By the way, does anyone else find it bizarre that (according to the WUWT article) CEI asked for usernames & passwords? I can’t imagine why they would think that information is releasable.
I have yet to see, in years of following the great climate controversy, where AGW promoters have ever willingly or openly shared data, submitted to outside review, or sought to fully discuss their work.
At nearly every turn the climatocrats seek to hide, obscure, obfuscate, dissemble, avoid and otherwise keep their work away from citizens or even goverment inquiries they do not themselves approve of.
I am aware of no other science enterprise funded by tax payers that does anything like this to anything like this scale and with full support of most of hte media and many in government, to boot.
HaroldW–
I don’t know if it’s “bizarre” to ask for usernames and passwords. I don’t know what the law ways about releasing these.
But I suspect that no matter what the law says, CEI can’t *get* passwords. I think those are generally stored in an encrypted format. So, the most one could do is hand out the *encrypted* form of the password that might be stored right now.
I have no expertise in the matter, but my impression is that encryption also involves keys so that someone can’t easily make a huge look up table to decrypt every password possible.
Asking for usernames might be useful if you were given a bunch of files that included people referred to by their user name instead of their real name. Whether you can get them… I don’t know.
Lucia,
You’re quite likely correct that the passwords are not stored as plaintext. But what I found bizarre is that usernames/passwords (a)are personal data which should be redacted, and (b)can’t possibly represent information as it’s used in the Act. I would think a more logical request would be to ask for a list of the persons who subscribed to this method of communication.
HaroldW–
I’m not an attorney and also I’m not familiar with all the particulars of FOIA. But is a “username” used to access a work account “personal data” as defined by FOIA? A username is not:
1) An employee ID.
2) An health record.
3) Pay information.
And so on. It’s just a set of letters used to log on to a system. It’s sort of like a work email address, telephone number or building/office number combination. Even if “joe shmooo” ‘s email address (or phone number) points to “joe shmoo”,doesn’t strike me “personal” in the FOIA excluding way. It’s only ‘personal’ in the sense that it is the one one uses if one wishes to contact joe schmoo and not someone else. But I don’t think that’s what “personal” means under FOIA.
The IPCC’s actions in this case are remarkably similar to the attempt of the National College Athletics Association to evade the Public Records Law of the State of Florida with regard to documents relating to an investigation of Florida State University. The NCAA lost and Florida State University had to disclose the documents in response to a public records request. You can read the opinion here:
http://opinions.1dca.org/written/opinions2009/10-01-2009/09-4385.pdf
Is there any information about this that doesn’t come from the CEI or a related source?
HaroldW–
I added a link to the FOI.
Full Document Available in PDF
I sort of think it’s natural for them to ask for these communications. They are the ones that would say “Ms. Abbot. You have been granted access to ‘ UN IPCC communication backchannel XYZ”.
These emails would give the information required to craft further FOI. Without these, it might be impossible to track down the existence of the fora.
In my view, the user name is just her login– it’s not “personal-personal”. It’s sort of analogous to a key to a cabinet. Just because Jane is given a key doesn’t mean they key is “personal”.
Something else also occur to me:
Part of FOIA permits the agencies to require requestors to pay if the cost of obtaining something is excessive. By placing government agency communications on the IPCC servers, they are taking steps they know will escalate costs which the agency then passes on.
So:
They make it harder to craft the FOIA because the person requesting information has to explicitly ask for all the possible ‘hidden’ locations of the data.
They make it more expensive for the requestor.
None of these things strike me as appropriate things for a government agency to be doing merely because the government agency or its employees don’t like to provide information under FOIA.
If you walked into an office and all the staff were busy shredding 100,00’s of documents I take it the reaction would be ‘nothing to see here.”
The FOIA request is interesting.
.
IIUC, they insist that they can request every single message ever posted on any IPCC forum unless it is specifically indicated that it is not intended for their target (Sherburne Abbott).
.
On the other hand, they argue that the IPCC cannot be covered by the exemptions contained in the FOI Act, because it is not an American organization.
.
The interesting bit is that these exemptions would cover the messages that they are asking for, since these are clearly “pre-decisional” in nature.
.
Pretty clever, but I wonder if any legally qualified person could comment on their interpretation.
toto
Probably not yet. The pdf is a filing. I haven’t seen the documents CEI obtained that tells us how or exactly when CEI “learned of a UN plan”.
If no such plan exists, CEI will have some egg on their face.
From IPCC itself:
Promises, promises…, especially after reading laFramboises latest publication.
From the CET FOIA – “This Request thereby seeks two types of records: those possessed directly by OSTP on its own assets, such as email accounts, computers, flash drives, discs and servers, and those held on assets (such as an internet forum) that during Ms. Abbott’s service was accessible to her, relating to the Intergovernmental Panel on Climate Change (UN IPCC or IPCC). This includes but is not limited to any record providing Ms. Abbott a user name and password for such electronic fora. â€
——————
lucia,
I took the bolded CET FOIA sentence to mean that CET requests all OSTP records (and not limited to just fora comments, emails, tweets, twits, text messages, voice mails, docs, letters and other communications) that gave Ms Abbott access info (such as fora name, fora web address, user name and password) to all fora as a necessary and essentially part of their FOIA request. I do not see CET necessarily seeking specifically the passwords so CET can assess the fora, but CEI seeking primarily the name of all the fora, all their web addresses and all of Ms Abbott’s user names. This would ensure CEI had all fora that she was using in her capacity as a US government employee whose job was to interact with the IPCC.
I understand CEI would not try to access the fora through her password; they wouldn’t need to because of the way their FOIA is structured CEI stated they have requested all the comments within all fora that Abbott had access to while visiting them. So they wouldn’t have any reason to see the password, as I understand it.
NOTE: The CEI FOIA is expansive and comprehensive. They spent a lot of work dotting the I’s, crossing the T’s, closing the loopholes and trying to bulletproof it.
John
John–
That makes the most sense. Unless they get access to all the “Welcome Ms. Abbot, you are now registered to use XYZ.” messages, they can’t be sure they know which “XYZ” communication channels existed.
Lucia (#83946) –
Thanks for the link, which clarifies the request for me. After reading that, it doesn’t seem to me that CEI is seeking to know the username/password combination (i.e., to be able to access the fora). Instead, as you say, they’re seeking to determine the scope of its requests by finding out what sections of the fora were accessible to Ms. Abbott, and they hope to find that out in the “here’s your username” email.
As to whether a username is private data, although it isn’t necessarily applicable to a federal FoIA request, I found the following from Illinois:
Doesn’t explicitly state “username” though. I agree there’s nothing particularly private about a name such as “jonathan.smith”, but in general, personal usernames could be more, well, personal. Say, “jsmith_wwf_mole”.
The ar5 wg1 guidances notes are on the web including the bit about using an internal online forum here:
https://www.ipcc-wg1.unibe.ch/guidancepaper/guidancenotes.html
I’m generally a supporter of more disclosure under FOI but I can see a reasonable case for the discussions&drafts here (and in similar contexts) not being made public.
This is a huge beatup. All the IPCC seems to be doing is to advise that people engaged in IPCC should have and use IPCC email accounts.
As an antidote to the hysterical response to this CEI stunt, I have been pointing to the use by the Bush Admin of accounts on RNC servers (gwb43.com, georgewbush.com). This was done on a huge scale, and seemed to violate the Presidential Records Act, Hatch Act etc. In the ensuing fuss, FOI was scarcely mentioned.
Nick, you keep making that claim.
http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389×711637
Anyway, is it now your contention that everything was hunky dory with Bush administrations botching of the e-mail issue?
That seems to be what you’re arguing.
I’m OK with saying the Bush Administration was wrong then and the Obama administration is wrong now.
Nick–
How is pointing to violations of the Presidential records act Bush Admin which resulted in a loud outcry an antidote to people complaining that federal agencies are trying to violate FOIA?
And in which fuss is FOIA scarely mentioned?
Real questions.
…and of course, Carbon Sasquatch had his own problems with the flow of information under the auspices of the Executive Office
http://www.washingtonpost.com/wp-srv/politics/special/campfin/stories/op030797.htm
JohnM
“the Obama administration is wrong now.”
What do you really believe that the Obama Admin has actually done here?
On FOI I looked through the Waxman Committee report. FOI is not mentioned once.
FOI wasnt an issue because of an executive order 13233. The records act was the issue because of the destruction of records.
Nick,
Do you agree that this would not be right?
If true, I would say that’s wrong. Admittedly, there is still a lot we don’t know, but I just want to get you on record that avoiding FOIA’s is wrong, whether it’s the Bush Administration, the Obama Administration, the IPCC, or the county dog catcher.
Nick Stokes,
From footnote #8 of the CEI FOIA which refers toa commenter at CA who attended the Brune seminar in Boulder,
You can see the comment yourself on CA.
Also, see the CEI FOIA request for some references to an IPCC website that officially steers personnel for AR5 to confidential internet fora for official IPCC business discussions and meetings.
John
Lucia #83959
“How is pointing to violations of the Presidential records act Bush Admin which resulted in a loud outcry an antidote to people complaining that federal agencies are trying to violate FOIA?”
What specifically is the complaint that federal agencies are trying to violate FOIA? As I’ve said, the IPCC seems to have provided people doing IPCC work with IPCC email accounts. And Horner is trying to find evidence, via OSTI, that they did so. Where is the FOIA violation by OSTI?
But as an antidote, it’s worth remembering the scale of the Bush Admin effort. Yes, it probably violated the PRA. It would have evaded FOIA, but that seemed to be a very minor issue.
A reminder. It wasn’t a “botch” (JohnM) but a policy:
“White House officials made extensive use of their RNC e-mail accounts.
The RNC has preserved 140,216 e-mails sent or received by Karl Rove. Over half of these e-mails (75,374) were sent to or received from individuals using official “.gov†e-mail accounts. Other heavy users of RNC e-mail accounts include former White House Director of Political Affairs Sara Taylor (66,018 e-mails) and Deputy Director of Political Affairs Scott Jennings (35,198 e-mails). These e-mail accounts were used by White House officials for official purposes, such as communicating with federal agencies about federal appointments and policies. “
JohnM,
Re: John M (Oct 17 17:47),
“Do you agree that this would not be right?”
I still can’t work out what they are supposed to have done? Could you help?
But as I say, the IPCC seems to be simply asking that people use IPCC accounts (or equivalent) for IPCC business. Now it’s true that those accounts are not subject to FOIA (AFAIK). If you think they should be, then you could get to work on that. (Whose FOIA?)
Nick,
This is very simple. What the Bush administration did or did not do in 2007 is a historical footnote. What the IPCC and/or Obama Administration are or are not doing today is a separate issue and is of direct consequence for current policy debates.
Is this another one of your “hey, look over there” ploys?
Nick,
My last comment was being written while you posted your 5:59 comment.
What the Obama administration is “supposed to have done” is:
If you don’t believe they did that, that’s fine, but you seem to be avoiding going on record as agreeing that it’s wrong if they did. No dancing about “legal”, but is it “wrong”?
Nick
You are throwing out a factoid. Presumably, you think you are making a point by presenting this factoid. You may also think the factoid is an argument supporting that point. You may also think this point has something CEI’s FOI request.
Unfortunately, I have no idea what point you think you are making by noticing that the Waxman Committe did not mention FOI. I also don’t have any idea whether the factoid would support that point, nor whether that point has anything to do with CEI’s FOI request.
It would help if you could make your point by stating it rather than thinking a factoid simply does it. Because as far as I can tell the fact that the Waxman Committe did not mention FOI has nothing to do with CEI’s FOI request.
Lucia,
“Unfortunately, I have no idea what point you think you are making by noticing that the Waxman Committe did not mention FOI.”
Lucia, you asked #83959
“And in which fuss is FOIA scarely mentioned?”
The “fuss” was the Waxman Committee investigation of the RNC emails. And my answer to your query is that they did not mention FOIA.
Furthermore, Obama recently overturned Bush’s executive order that made presidential records exempt from FOIA.
Here is the issue, we found the same issue at play in climategate. The argument is made that scientists working for the IPCC are not doing work “officially” the are being assigned to work for the IPCC. Their “records” thus are free from FOIA requests. That defense which Jones tried didnt exactly work, so he set up a meeting to discuss the matter with Pathcy and Tom Stocker. It appears the decision has been taken to facilitate the creation of records that are outside FOIA law. Bush’s violation of the records act is a diversion. The issue is
1. People employed ( paid for ) by an institution that is subject to FOI will have a means to work off the record.
2. The IPCC is beyond any law, so one cant demand its records.
basically what you get is a process that cannot be audited. And some people will accord the output of the process the respect it deserves. none.
Rather than demanding more sunshine, Jones Stocker and Patchy devised a plan for less sunshine. They saw nothing wrong with what they did, they want to fix the issue of being caught.
That’s a risky venture. I don’t expect people to cheat or to make stuff up. Thats why I wouldnt fear openness. But, having closed the system, the IPCC is doubling down. If they make a substantial mistake in Ar5,… they really have put all their chips in the pot.
Close the system and make a mistake.. not a very good idea. The precautionary principle .. the chances might be low but the damage is huge
Re: John M (Oct 17 18:06),
“…to secretly create a FOIA-free zone…”
There is no evidence, apart from Horner’s ranting, that anything was secret. As far as I can tell, like most such organisations, they have an email system. And they asked people doing IPCC business to use it. Legal and perfectly normal.
Nick
No Nick, Horner is trying to obtain OSTP communications under FOIA. He alleges the communications are taking place on IPCC channels. He alleges that the motive for OSTP communicating OSTP business on IPCC channels is to avoid FOI. Because he believes the OSTP communications are on IPCC channels, his request mentions the IPCC, mentions the relevant law stating that OSTP can’t shield it’s obligations under FOIA by communicating with the IPCC agency on IPCC channels.
“It would have evaded FOIA,”. Could you support your claim? It might just be flat out wrong.
Here’s a list of entities exempt from FOIA:
http://www.whitehouse.gov/administration/eop/oa/foia/
The EOP entities exempt from the provisions of the FOIA are:
Waxman obviously wouldn’t complain about the white house violating FOIA because FOIA doesn’t apply to the white house!
In contrast, Horner is complaining about OSTP communicating through back channels in a possible attempt to evade FOIA which applies to OSTP.
Steven,
“basically what you get is a process that cannot be audited.”
Not so. Almost all business done in all western countries is beyond the reach of FOIA. That doesn’t mean it can’t be audited.
Nick,
Audited by auditors not of your own choosing? Isn’t that what this is about?
Nick
I gather from what you wrote later that you think “the point” is that if Waxman didn’t mention FOIA, that means it’s somehow not important in the OSTP/IPCC issue. If you think this, we can all chuckle at your Aussie misunderstanding of American law and Politicians.
Waxman didn’t mention FOIA in an incident involving the White House because FOIA doesn’t apply to the White House. So mentioning it would have made him look like what is commonly known as “an idiot who doesn’t know American Law”. But FOIA does apply to OSTP– which is why Chris is complaining about OSTP possibly evading FOIA.
In contrast, Chris is not complaining that OSTP is trying to evade the “Presidential Records Act” because OSTP is not “The President”. If he complained they were trying to evade the PRA, he would be look like what is commonly known as “an idiot who doesn’t know American Law”. (This would be doubly bad because Chris is an attorney.)
Of course we can forgive you for not knowing the difference because you are Australian.
Lucia
“FOIA doesn’t apply to the white house!”
It doesn’t apply to the IPCC either.
“Horner is complaining about OSTP communicating through back channels in a possible attempt to evade FOIA which applies to OSTP.”
Horner is seeking records that OSTP holds. Production of those is their FOI obligation, and there’s no evidence that they are not complying with that request.
I wish you would quote Horner’s actual allegation, and whatever supporting information may exist.
“There is no evidence, apart from Horner’s ranting, that anything was secret.”
Nick,
When you keep things secret, generally there is no evidence of the secret things to look at.
Andrew
Nick, I see you continue to distract from whether avoiding FOIAs is right or wrong. Rather than continuing to get sucked into your rabbett hole, I will let Mosher’s comment above suffice.
Anyone ever get the impression Nick was the inspiration for at least one Seinfeld scene?
http://www.youtube.com/watch?v=Oz0jkktVfJ8
(relevant portion from 0:50 to 1:50, warning, PG-13)
Nick
No one says it applies to the IPCC. It applies to OSTP. OSTP is not the IPCC.
No one said they are not complying with the request filed today.
The allegations include
“CEI has learned of a UN plan recently put in place to hide official correspondence on non-governmental accounts, which correspondence a federal inspector general has already confirmed are subject to FOIA.” which– for example, says the UN has a plan to hide official correspondence. (If you read further, FOIA is relevant because the official correspondence would include OSTP correspondence. It’s the hiding of OSTP and American Federal agency correspondence that is “the problem”. The IPCC can hide any documents it mails itself or their aunt Jane. No FOIA problem with that. )
More can be read in the lengthy quote in my post above and some are in the pdf linked in my blog post above.
John M
<i."Nick, I see you continue to distract from whether avoiding FOIAs is right or wrong."
Every business in America “avoids FOIA’s”. Like the IPCC, they are not subject to FOIA. And yes, they will take precautions to ensure that their business does not get exposed under FOIA through correspondence with gov’t.
simple Nick.
provide the IPCC external independent audit process.
Lucia #83981
“But FOIA does apply to OSTP– which is why Chris is complaining about OSTP possibly evading FOIA.
….
Of course we can forgive you for not knowing the difference because you are Australian.”
Lucia, you have still not quoted anything, not even a Horner allegation, that says OSTP is possibly evading FOIA.
Nick,
I never knew the IPCC was like a US corporation.
Anyway, as someone who actually works for a US corporation, let me assure you that we are constantly reminded that no correspondence can reliably be considered to be “private”.
Nick
Well…. but they can’t do it by requesting officials to only communicate privately. Government officials and employees of federal agencies doing their job must communicate government business through channels that apply to government business.
It’s true that people do sometimes have private meetings of various sorts. Hobknobbing. Playing golf and so on. Phone calls can be useful methods of not creating any trackable FOIA-able document.
But if they start writing letters, emailing, setting up electronic forums, it appears FOIA has a long arm. Chris has sent a FOIA request. I’m not a FOIA expert– but if he’s right, OSTP is going to have to supply stuff.
This may end up in court– of course.
Every business in America “avoids FOIA’sâ€. Like the IPCC, they are not subject to FOIA.
###
However, every business is subject to audit. The point is the IPCC is unregulated, unauditable, it has no process for independent audit. It is subject to no independent oversight. No court can officially request its internal documents, no government can..
Well, they can request, but their is no published process on how these requests will be handled, what consitutes a lawful request. It is a closed entity. Now, that merely means we are justified in disregarding anything it says. Like a business partner who refuses to show me his list of investors. I cannot compell him to disclose. I can ask, he can say no. I will not buy the story line he gives me.
Same with the IPCC. If the IPCC cannot be compelled by law to disclose adverse information about its practices then people are justified in rejecting out of hand anything it says.
“I never knew the IPCC was like a US corporation.”
Neither is subject to US FOIA. Which is the topic here.
Steven,
“The point is the IPCC is unregulated, unauditable, it has no process for independent audit. It is subject to no independent oversight. No court can officially request its internal documents, no government can..”
This is far from the truth. Every IPCC report has to be agreed to by every participating government. A very onerous requirement. And I’m sure any one of them could demand any document they wished before doing so.
Nick
I take the following two paragraphs to amount to Horner alleging that OSTP (highlighted) might be evading FOIA by communicating thorugh back channels.
Note: I am not saying he is alleging they aredoing so, but that they might be and he is warning/alleging this amounts to “evade the applicable record-keeping law”. With respect to OSTP, FOIA is the “applicable record-keeping law.
I know you’ve visited multiple blogs discussing this, and you keep leaving comments that seem utterly disconnected from the content of the posts. But really…
Nick
No Nick. The topic is whether OSTP is subject to FOIA.
@ Alice Finkel (Comment #83927)
However, if it is religion, our government may not implement any part of that religion, as the first amendment prohibits any law respecting an establishment of religion.
Further, any use of gov’t facilities for private correspondence, especially proselytizing religious beliefs in their capacity as gov’t officials is prohibited, but still subject to the FOIA.
Lucia
“No Nick. The topic is whether OSTP is subject to FOIA.”
Lucia, your post is titled:
“An IPCC backchannel ‘[…]‘ to hide IPCC deliberations from FOIA?”
No-one doubts that OSTP is subject to FOIA. And you still haven’t quoted anything that says they are avoiding that obligation.
Nick–
On the title: Yes.
It is alleged (and seems to be true) IPCC created the back channel and
It is alleged their motive for creating the back channel is to hide deliberations from FOIA (which have been enacted in various governments.)
But– as far as I can tell, no one claims the IPCC itself is subject to FOIA.
My post is not about whether the IPCC is subject to FOIA. Their involvement is in attempting to enable others to evade FOIA. The agency mentioned in the post– and Horner’s article is OSTP. So, with regard to whether an agency is subject to FOIA the issue is OSTP.
On your request for quotes: I believe I have provided quotes to support things I have actually said. For example, I believe I provided a quote that supports this “But FOIA does apply to OSTP– which is why Chris is complaining about OSTP possibly evading FOIA.”
Perhaps you quote what claim I made that would require me to support with a quote that “says they are avoiding that obligation”. If you quote what you want me to defend I might either be able to a) clarify something I misstated or b) dig up a quote to support whatever it is you think I ought to be supporting.
I encourage everybody to click on the links provided by andrewt above, which describe explicitly what the fuss is all about. In particular, you can have a look at https://www.ipcc-wg1.unibe.ch/guidancepaper/WG1_GuidanceNote_Confidentiality.pdf [Warning: PDF]
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Money quote:
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Compare with the “creative” interpretation made by the CEI.
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My own opinion is that the CEI know that they don’t stand a chance of obtaining what they asked for (i.e. essentially unlimited access to the IPCC forums). So they pre-emptively accuse the IPCC of trying to “evade” the FOIA. The likely rejection of their request will then be seen as a “vindication” of their pre-emptive accusations – or at least, it can be painted as such to some people. YMMV.
toto, why do you suppose they don’t permit public comment on the drafts?
That seems a bit strange to me, from a “responsible conduct of research” perspective.
toto–
Seems to me that matches the CEI discussion. What part of CEI’s interpretation do you consider “creative”?
I don’t see them asking for ‘unlimited access to IPCC forums”. I see them asking for ”
Where do you see a request to unlimited access to IPCC forums?
You’ve mangled the allegation which is somewhat more complicated. It’s setting up channels to permit others subject to FOIA to evade/avoid/get-around FOIA when communicating IPCC deliberations in electronic form. In many cases, these deliberations would become subject to FOIA because the communications involve people at government agencies subject to FOIA. (Note: “evading” is not necessarily illegal. IPCC might be able to “evade” FOIA by insisting all communications be made by SKYPE and never recording. No records could be obtained through FOIA because none would exist.)
Anyway, the allegation is, the motive for the back channels is to prevent deliberations from being accessible through FOIA. But, technically, the IPCC would not be doing any “evading” because, among other things, FOIA doesn’t apply to the IPCC.
Out of curiosity, why do you think CEI won’t be granted records &etc. ‘to Sherrell B. Abbott’ and so on? Do you think FOIA doesn’t cover that request? Or what?
Lucia, #83990
“I take the following two paragraphs to amount to Horner alleging that OSTP (highlighted) might be evading FOIA by communicating thorugh back channels. “
Where? They say it is something that the UN is supposed to have done. And they remind OSTP that they think it is Abramoff (or Rove?) redux. But I can’t see any claim there that OSTP has communicated through back channels. He just seems to be saying that OSTP should be outraged about something.
Lucia #83998:
“What part of CEI’s interpretation do you consider “creativeâ€?”
Well, for example the claim that “The plan to secretly create a FOIA-free zone was then implemented.” when he then goes on to quote from the IPCC website:
“In order to enhance communication among the chapter authors between the meetings, chapter-specific internet fora will be available which are only accessible to the members of the chapter teams and confidentiality is protected by user-specific [sic] passwords. Additional information on the chapter forum, as well as other electronic resources provided by the TSU in support of the writing process, will be presented during the
First Lead Author Meeting.”
Nick,
Someone must have turned your reading comprehension to “off”.
Your version:
The “something” is the “UN” is supposed to have done is:
“creat[ing] non-governmental accounts for official businessâ€
These accounts are the back channels. The “front channel” would be using the government account for official business.
As for the possibility that the backchannels would be used communicating without creating a record:
“using the nongovernmental accounts specifically to avoid creating a record of the communicationsâ€,
I infer that Horner is talking about “communicating” by his choice of the word “communications”.
The connection to FOIA comes in the other big I quoted
“to evade the applicable record-keeping law”.
As I previously noted FOIA is the “applicable record-keeping law”.
Who said anyone claimed they already have used them? They might have. Or not.
Let’s cut out the bit that seems to be distracting you:
I don’t know how you read this, but I take this “reminder” (in an FOI filing) as alleging through insinuation that OSTP might be “using the nongovernmental accounts specifically to avoid creating a record of the communicationsâ€.
While I realize the fact that the allegation is insinuated rather than stated directly might be confusing you, I still read this as an allegation. Also, it seems to me you keep trying to get me to defend the claim that someone says OSTP already has communicated through the back channels. But I don’t see anyone alleging that. I see Horner alleging– through insinuation– that they might have.
Nick–
I don’t see the quoted bit posted on the IPCC site publicly revealing they believe these fora will put the documents out of reach of FOIA.
So, it seems to me that if the IPCC thought these fora were out of reach of FOIA, that detail is not being revealed on their web page. The word “secret” might be appropriate– that is, it’s a secret to casual readers of the web page. (It is tendencious and colorful though. I’ll grant you that!)
Of course, maybe the IPCC never thought putting documents on that server will put them out of reach of FOIA. In which case, the creative bit in the CEI filing wouldn’t be the word “secret”, it would be the idea that the IPCC was entirely aware that the fora would provide almost no confidentiality, but decided to suggest to authors that the fora would provide confidentiality.
Hmmm… didn’t say that well.
In which case,…..the creative bit would be the notion that the IPCC intended to create an FOIA-free zone. Rather, the IPCC would know they were not creating such a zone, but decided to give authors the impression the fora would grant “confidentiality”, when all it meant “it’s confidential as long as no one requests it under FOIA”.
#84005
“So, it seems to me that if the IPCC thought these fora were out of reach of FOIA, that detail is not being revealed on their web page.”
Lucia, that’s prevarication. He said
“The plan to secretly create a FOIA-free zone was then implemented.”
The secretly clearly refers to the plan to create a zone – not to whatever belief they may have had about it being FOIA-free. And they described the zone explicitly on their website.
Furthermore, the website says, among other things:
“They are therefore considered to be specific closed fora for predecisional discussions.”
“Closed”, “confidential”, “protected” – they hardly need to add that they don’t expect disclosure under FOIA.
‘This is far from the truth. Every IPCC report has to be agreed to by every participating government. A very onerous requirement. And I’m sure any one of them could demand any document they wished before doing so.”
Nick, please cite the IPCC policy that allows any government official to request
1. author correspondence
2. drafts
Please cite the proceedure and the relevant law.
The IPCC is unregulated. It is trivially true that any government can request the documents. What is untrue is that the IPCC has a proceedure outlining or detailing how these requests will be handled. It is also clear that there is no appeal process. If a government official, say a member of congress requests a document and it is not produced, what recourse does he have, what admistrative law governs this request? how can he ascertain that the request was fully complied with? can he send in the GSA or OIG to investigate whether the compliance was complete? no, the IPCC has no mechanism to arbitrate these type of circumstances. It is subject to no law, it is unregulated, it is the final authority on what constitutes a valid request. That means there is no formal check on the power it wields.
Were it not for the fact that Solomon used her NOAA email account, we would not have access to the reviwer comments. As you recal the IPCC thought that putting the comments in a special collection library at Harvard was being “open”.
A few years ago, when IPCC said that I had to go to Harvard Library to see Review Comments that were supposed to be available in a public archive, I sent an FOI request to NOAA for any copies of IPCC Review Comments held by NOAA. I think that this may have been my first FOI request.
IPCC gave in to public pressure and created a public archive.
However, in the mean time, NOAA refused the request on the basis that they did not possess ANY responsive documents. Even though Susan SOlomon and martin Manning had used NOAA emails throughout. They claimed that the documents were the property of IPCC, rather than the US government.
This seemed a bizarre legal theory, even if the issue became moot.
It came up in the NOAA OIG report where Susan SOlomon said that they got legal advice from NOAA counsel for this excuse, while the NOAA lawyer denied giving her this advice, The OIG seemed to think that this inconsistency was an imponderable quandary and did not pursue it.
Whatever the merits of IPCC, the legal theory that IPCC cadres are above US FOIA law seems bizarre to me. To what other international organizations would the exemption extend to? The International Olympic Committee? Freemasons? Scientology? Al Qaeda?
‘
Steven:
No doubt Nick thinks that’s too open, and they shouldn’t blather so much.
Wouldn’t want anything approaching deliberation here would we?
The sure lunacy of allowing the UN to control this process just becomes more self-evident with every iteration of the IPCC report.
If this process is going to survive in any form recognizable as scientific in nature, it’s going to have to be taken out of their hands. Otherwise it, and any positive impact, it might have, is doomed.
“Nick, please cite the IPCC policy that allows any government official to request
1. author correspondence
2. drafts”
Why do you think they need such a policy? The IPCC needs their ratification. They are sovereign governments. They can refuse it for any reason at all. Or no reason. And they can request anything they like. They are not subject to IPCC policies.
“Whatever the merits of IPCC, the legal theory that IPCC cadres are above US FOIA law seems bizarre to me. To what other international organizations would the exemption extend to? The International Olympic Committee? Freemasons? Scientology? Al Qaeda?”
Yes, I’m sure US FOIA law does not apply to any of those organisations. You seem to have trouble accepting that all nations’ FOIA laws apply to a list of prescribed organisations, which are agencies of the government that made the law. There is usually a schedule listing them in the Act. If you know of a government that lists the IPCC, that would be useful information.
Nick nobody in the US has trouble with that. We question the wisdom of dealing with countries that have backwards laws on FOIA and we really get steamed when our money gets spent with no accountability associated with it.
Beyond that, those of us who were actually hopeful that the process would be less politically corrupted than last time, have had any such shred of hope fully incinerated at this point.
Regardless of your own prevarications, this is very bad juju for the scientific process and the establishment of legitimate consensus.
Lucia #83977
“In contrast, Chris is not complaining that OSTP is trying to evade the “Presidential Records Act†because OSTP is not “The Presidentâ€. If he complained they were trying to evade the PRA, he would be look like what is commonly known as “an idiot who doesn’t know American Lawâ€. (This would be doubly bad because Chris is an attorney.)
Of course we can forgive you for not knowing the difference because you are Australian.”
Actually, he is claiming that:
“The public record as described below is clear that the electronic fora at issue in this Request were established to supplant official governmental email accounts — but still accessed using government computers, on government time, as official communications in pursuit of official duties — to perform official duties while evading national transparency laws, including FOIA, as well as the Presidential Records Act of 1978 (PRA).”
Don’t let them all bully you, Nick. Of course you are right. The IPCC doesn’t has to show nobody no steenking badges.
Don, I dunna… When the best possible light (assume Nick is giving that) looks this bad, it ain’t eva’ goin’a look good.
“We question the wisdom of dealing with countries that have backwards laws on FOIA ”
I know Australian FOI law has an exemption for deliberative processes which might cover the drafts and internal discussion between lead authors that WG1 would like to be confidential. And I can accept we are a backwards country.
But I thought US FOIA had a somewhat similar exemption – surely the US isn’t a backward country too?
This doesn’t seem all that complicated really.
IPCC have guidence about confidentiality and have set up an email system to handle correspondence. The use by government officals subject to domestic FOI legislation of this IPCC resource will not exempt them from their domestic legislation (at least one presumes in most jurisdictions). The IPCC seems to anticipates the possibility that disclosure is possible, and requests personal information not be disclosed (the extent to which this is possible will depend on the particular FOI law).
This will all only become an issue if domestic agencies subject to local FOI laws start to try and hide behind the IPCC system.
We’ll see.
Of course whether the IPCC process is a good process is another matter, and that is something for the agencies and States that sign up to it.
Nick–
I just knew you were going to search for PRA, and with your reading comprehension button turned to “off” cite that paragraph, to suggest Horner is suggesting OSTP is trying to evade PRA. But the paragraph you quote does not accuse OSTP of evading PRA. Here are the relevant bits.
It’s quite clear in context of Horner’s discussion that the ‘official duties’ to be performed are to be performed government entities that include but are not limited to OSTP. The laws that apply to these government entities include– but are not limited to FOIA. The FOIA happens to apply to OSTP. But other laws– including PRA– apply to other government entities.
The mere mention of PRA in a paragraph discussing “official duties” doesn’t mean that Horner is suggesting PRA covers OSTP.
“The mere mention of PRA in a paragraph discussing “official duties†doesn’t mean that Horner is suggesting PRA covers OSTP.”
Well, who is he suggesting it covers? The IPCC?
Lucia – From my experience, the FOIA is toothless. See my posts
http://pielkeclimatesci.wordpress.com/2011/05/26/my-experiences-with-a-lack-of-proper-diligence-in-the-nsf-review-process-for-climate-proposals/
A major conclusion in my interactions with the NSF was that NSF does not retain a record of e-mail communications.
Here is one of the e-mails that I document in my post
“On Fri, 15 Apr 2011, Jensen, Leslie A. wrote:
Dear Sir:
A proper search has been accomplished for all named individuals. Email is not a permanent record and meetings from several years ago would be deleted. The Foundation’s email retention policy is repeated below:
———————————-
Exchange Server: Most users have their mail delivered to their Exchange Server mailbox. If you haven’t done anything special, that is where your mail is delivered and stored. In Outlook your mailbox is the folder that includes your name in the folder name (top folder in your Folder List). The Exchange Servers are backed up to tape nightly, and the tapes are retained for 14 days, then destroyed. Exchange Server has a feature that allows you to recover deleted messages (even after the trash is emptied). That feature is set to retain deleted messages for 5 days. When these features are combined, it means that 19 days after you delete a message and empty the trash, nobody can recover it.”
Thus, at least for the NSF, if they replied to me honestly, the e-mails are dystroyed.
Roger
Nick–
The not-brain dead reading would be that Horner is suggesting te channels were established for use by many people employed at many multiple agencies or entities. The IPCC itself doesn’t chose who the US government assigns to IPCC task, but might anticipate the possibility that the President, Vice president or — more likely– a member of their staff (e.g. secretary, policy wonk, summer intern, etc.) might be given access to fora to read, download material, comment etc.
These people do not constitute “The IPCC”.
Lucia,
I appreciate your blog and efforts to present a truly skeptical approach to the science behind this issue, but I disagree with you in this instance.
Forgive me for starting by stating the obvious, but I think it’s fair to say that all agree on the following points.
1. The IPCC is not subject to US freedom of information requirements (nor should it be).
2. OSTP is subject to, and should comply fully with, US law.
While it hasn’t been covered in comments above, I think it’s fair to say most would agree that some confidentiality is required in various stages of the development of any public document.
At what stage, and to what extent, public disclosure is required is open to debate. What is unarguable is that the IPCC has a publicly stated position on its policy on what is publicly releaseable, and not (as noted by toto).
There is valid debate to be had about the extent of the IPCC’s disclosure of discussions leading up to the presentation of preliminary findings, and of the level of disclosure of OSTP officials in this process.
I’d be happy to discuss whether there needs to be more disclosure in relation to IPCC input (and I generally think there should be more).
However, leaving aside this issue, the contention of the CEI is that there is some form of conscious decision to limit information based on previous experience (and in particular, “ClimateGate”).
The CEI alleges that its FOI request demonstrates that “the IPCC’s motivation to avoid future FOIA requests was past embarrassment over releases of earlier communications” (which you refer to above). However, the FOI request has no evidence to support this contention.
They also allege that this has been done with the direct assistance of the “Obama White House”, with the implication that this assistance was provided in order to support the IPCC’s objectives. Again, no evidence is provided to support this proposition.
Going back to my (obvious) starting point, I’d suggest it would be perfectly normal for an international body to try to encourage states to support a consistent approach to disclosure. I’d also think it entirely appropriate for a national body like the OSTP to try to meet these requirements while still having national legislation as the primary obligation.
In the CEI FOI request, they acknolwedge that the IPCC includes this as part of their advice “You are encouraged to consult with the legal advisors of your institution as to whether this is compatible with prior and local regulations”. While they include this as an aside, I think this is an integral part of balancing the two priorities.
It seems to me that the ordinary reading of the details provided is that there is a tension between individuals and groups about the level of disclosure that is desirable, including in participating in international bodies. However, there is nothing that suggests there is any intention, or secret plan, to hide inconvenient information.
Roger Sr. —
The NSF may destroy old emails on the server. Not all agencies do– but I suspect many now do.
This still doesn’t mean that FOIA s toothless. Many individual employees save all their email. This means sometimes you have to craft the FOIA to request emails that might be stored by the individuals themselves. Crafting the FOIA to get past discussions can be tricky. The fact that it can be so makes the IPCC move to have communications stored on an IPCC server makes it trickier because people requesting documents will need to specify that they are requesting “Agency X” communications covered under FOIA but stored on the IPCC server. Lots of people would be likely to overlook this possibility and thereby get a response that says agency X has searched their computers but they don’t have it.
No.. they don’t have it on agency X computer. Because the stuff was stored on the IPCC server and the FOIA request didn’t ask them to check that!
“channels were established for use by many people employed at many multiple agencies or entities”
Well, he’s asking OSTP for the information. It seems implausible that the Pres or Veep (or staff) would be opening an IPCC account (it’s for authors), but even more that OSTP would have the records.
And to enhance the muddle, it seems that from your earlier assertion, if WH folk did log in, they would be exempt from FOIA anyway. And C Horner is not authorized to enforce the PRA.
Jason:
That’s where I am on this too. I think that’s the real issue. IMO this should never have to reach the FOIA level: Disclosure should be public and automatic (which is different than immediate).
The process appears to be exclusive of many mainstream researchers, and there’s not even a mechanism where they get the opportunity to respond, moreover there doesn’t appear to be any mechanism by which deliberations are tracked and that in fact seems to be built in to the system.
andrewt:
From my perspective you guys are just upside down on a lot of things, rather than backwards.>.<
Jason
I agree the CEI FOI request itself does not contain evidecne to support everything in the CEI contention that “the IPCC’s motivation to avoid future FOIA requests was past embarrassment over releases of earlier communicationsâ€. But I thint contains quite a bit that supports some of he contention.
The CEI/FOI claim has two branches:
1) the fora were set up to avoid FOIA requests
2) reason for wanting to avoid FOIA request was past embarrassment ..
I thin you are correct to this extent: I haven’t found evidence in the FOI to support the past embarrassment bit.
I do find some evidence in the CEI FOI that the IPCC does want to avoid future FOIA requests. It’s just not clear whether they want to avoid FOIA to avoid embarrassement or for some other reason.
Now, I’d like to unpack another bit in your comment:
If your point is that the CEI insinuates that what the IPCC intends may go beyond what the IPCC might describe as their intention, I agree. So, for example: maybe the CEI claim could only be justified if we eliminated “secret” and inconvenient” resulting in this
It seems to me that by eliminating those adjectives, we can find certainly find at least some evidence in the CEI FOI. For example, the CEI FOI actually states:
I would suggest the evidence that follows s suggest that the fora are intended to supplant ‘official governmental email accounts’ as a mode of communication. There is evidence fora have been established. There is evidence the IPCC wants people who previously used email (including government email) to switch to using the fora. That means the IPCC is trying to supplant the use of government email by setting up this fora. One can argue whether supplanting email might be a good thing– but supplanting is supplanting. And that’s what the fora will do. So, presumably you aren’t claiming there is no evidence of the fora, nor the IPCC’s intention of the fora.
So, I’m guessing your notion that the CEI provides no evidence that the IPCC’s intention in creating these fora is to evade FOI (or PRA). But the CEI FOI provides some as evidence. The evidence they supply is IPCC’s use of legal terms of art :
This statement contained in the FOI is evidence of intent to get around (i.e. evade) FOIA.
It’s may not be strong evidence. But in argument, decision making, court, or anywhere, circumstantial evidence, suggestive evidence, and even inconclusive evidence is still some evidence. It’s up to the reader to decide if it’s sufficiently convincing to permit them to make a conclusion about the IPCC’s motives.
As the purpose of FOI is to make information accessible, I think this shows that at least CEI has provided evidence to support the milder claim “there is any intention, or …plan, to hide … information.”
Now, that only leaves the question of whether CEI has provided some information to support “secret” or “inconvenient”.
In all honestly, I think that word “inconvenient” is a gimme. Would the release of some of that information be “inconvenient” to the IPCC? I would suggest that the IPCC thinks that release of some of information that will be hosted on the fora would be “inconvenient”. At a minimum, they find public discussion “inconvenient”; the IPCC would find it more “convenient” to have private discussions. If someone complains that CEI hasn’t supported their claim because they haven’t provided a long-winded explanation to “prove” the IPCC thinks public discussion of the information on that forum is “inconvenient”, I’d suggest that person is nit-picking.
So, the question is: remains: can we justify “secret”. Well… that just depends on who it’s a “secret” from. Certainly, the IPCC has not made any public declaration saying “We intend to set up a fora that will store information that will be communicated by and to people acting in their capacity as government agency employees and we intend for the information on these fora to remain confidential and outside the reach of FOIA.” So, if that’s what they intend, it’s not been openly stated. So, one might suggest the word “secret” applies to some aspect of the plan. The part of the plan that would be “secret” is an underlying intention of what might be accomplished.
Someone else might decree that since the existence of the fora themselves is openly disclosed, it’s not a secret. And they might claim that failure to communicate any an all underlying motivations for the existence of the fora doesn’t make anything– including the motivations– secret.
If so, then maybe CEI’s claim would be more correct if we replaced “secret” with the equally tendencious “openly and brazenly”. But if we are going to debate between whether “openly and brazenly” or “secret” are more accurate, then it’s likely better to just edit out “secret” as it’s use can trigger endless distracting pointless debate about precisely what is a secret: The existence of the fora? Or one of the IPCC motives in creating the fora?
Still, in the end, I grant you: I think it’s true I don’t see much in the FOI to support CEI’s claim that the motive is connected to wanting to avoid “past embarrassment”. Otherwise, I think CEI’s FOI did a pretty good job on supporting the claim you think they provide no evidence of. For what it’s worth, I suspect the IPCC’s motive was to avoid embarrassment.
The CEI FOIA request quoted this IPCC website entry for WG I:
So, the IPCC claims the public can see IPCC decisions but the public cannot see the process of making the decisions. That is unacceptable. The IPCC says it is transparent and open, then the IPCC says it isn’t transparent and open. That is unacceptable. This climate stuff is public interest and it is gov’t funded, yet we cannot see the decision making process of the IPCC. That is unacceptable.
The IPCC is denying me climate assessment information by hiding behind bureaucratic legalisms to hide their decision making processes. That is unacceptable.
There should be nothing to hide. The IPCC behavior is very suspicious . . . . no wonder trust is lost.
John
PS – this comment was also posted @WUWT
Nick
There is no muddle. The WH folks would be subject to PRA.
Of course the FOIA request for OSTP documents is a request to get OSTP documents under FOIA. When making a FOIA request, you ask “agency A” for documents under FOIA.
This doesn’t mean that Chris Horner can’t discuss what he believes to be the IPCC’s intention in creating the fora, and he is not required to edit down their intention in its narrowest possible scope mentioning only OSTP and only FOIA.
I don’t really know if what you claim is correct. But it’s irrelevant because no one said the Pres, Veep or staff would be opening the specific IPCC account for IPCC authors.
The “electronic fora at issue ” mentioned in the FOI is not limited to fora for IPCC authors. Are you having trouble distinguishing “group” categories (i.e. fruit) with specifics (i.e. apples)?
I suggest you read the request, learn what is requested and try to understand it as a whole, taking care to distinguish between things like “electronic fora at issue” from more specific things like “IPCC accounts for authors”.
FOIA’s are a convenient cover for those in government who would like to claim transparency without practicing it. In order to utilize the act one must either be pursuing information that is regarded essential to make a currently popular and consensus point, or in the case of a less popular issue, go to great bother and expense to sue the government for the information – with no guarantee that it will be provided.
What I see as the usefulness of the FOIA is that with the advent of blogging one can publicize the request and show evidence that a particular government body is not all that interested in transparency and allow the readers to make their own judgments on why the body is hesitant to reveal the requested information.
An ancillary benefit of these requests is an opportunity to pass judgment on the defenders of opaqueness in these bodies – assuming one does not get bored with the unending lawyerly excuses and the nit picking back and forth that all too frequently results from these discussions. The only question should be first and foremost: Should this information be available to the public and further should not an honest operation seek to make it available without an outside request?
Is there a way to do a FOIA on Roy Spencer, John Christy and Pielke?
Robert,
They can be FOIA’d for any work done under contract for the US gov’t or as employees of the US gov’t.
Of course.
John
Robert, the roadblock you might run into there is with NASA not Christy or Spencer.
See this.
He might have done better to bring his questions to Christy.
I don’t know how the CEI FOI request will play out legally but it has opened some interesting issues.
I am intrigued that the IPCC would try make an analogue to FOIA Exemption 5. The logic of that statutory exemption is that U.S. Executive branch agencies and the President should have some private internal space to weigh policy, law enforcement, regulatory and legislative options before moving forward in a public rulemaking or formal action at which time all documents are matters of public record.
The IPCC is not a policy-making, regulatory or legislative body (as the Horner document makes clear) and the proposed analogy to the US Executive branch is as presumptuous as it is inapt.
The real IPCC goal appears to be to establish an enormous blanket exemption to transparency of any kind in which everything and anything they don’t want to disclose regarding the production of the Reports will be considered “pre-decisional” and thus exempt from any public scrutiny.
Whether that stonewalling policy involves erection of a private email system is secondary to the fact of the policy decision to try shut down all outside scrutiny. This is a very bold, very comprehensive anti-transparency policy.
Nike Stokes’ notion that we have nothing to fear from a complete lack of transparency because any environmental bureaucrat in any participating nation’s government might ask for a document or two is no consolation.
CEI is doing a public service by drawing attention to the fact that the IPCC is again aggressively circling the wagons and demanding that we pay no attention to the man behind the curtain.
George Tobin,
I have been repeatedly going back to the CEI FOIA request to look at the Exemption 5 (predecisional info) dialog, trying to assess it.
Thank you for your additional info and explanation. It is quite helpful.
To me the broad anti-transparency machinations by the IPCC are a clear red flag that this isn’t either science or any kind benevolent activity; the possibility it is authoritarian focused activism profoundly disturbs me.
John
My Goodness.
Over 100 comments on a charge made by a political advocacy group, without a shred of evidence. Rather it seems that CEI is on a fishing expedition to find, via FOIA, the as-yet (and possibly absolutely) nonexistant evidence.
Wake me up if any real data comes in.
There is a simple way to avoid the FOIA problems and evasions. Every entity that receives money from the government (whether U.S. or foreign) should have to agree as a matter of contract that they will disclose their underlying data and whatever else should be open to the public. The U.S. government imposes conditions like this all of the time. (For instance, government contractors have to agree to EEOC conditions.)
If debated in the public arena, it is hard to imagine anyone opposing transparency. Once it becomes a matter of contract (in addition to FOIA laws) then the deviousness of entities like the IPCC and the CRU will be greatly curtailed. I would add that as a condition of receiving new money, I would also attempt to get an agreement to release information pertaining to past work.
If they don’t accept openness & disclosure, they don’t get money.
JD
KAP:
In case you missed it, some of us were responding to what the IPCC said. I never even read Horner’s comments.
KAP
Seems to me CEI provided evidence for charges they’ve actually made.
Owing to the vagueness of your statement, I can’t begin to guess whether you don’t know what charges CEI has actually made, haven’t looked at the evidence CEI or others provided relative to those charges or lack the ability to identify what sort of information constitutes evidence relative to any particular claim.
Horner is such a terrible writer. Can anybody figure out what he’s actually saying?
Surely the IPCC can create whatever system it wants. It is not subject to FOIA. Or is it somehow?
As for the Obama admin, Horner is so vague i have no idea what he’s talking about. Apparently some bureaucrats are trying to hide their emails or something? Or they could hide something? I don’t even know what the accusations are here.
How did Romney get mentioned like four times in Horner’s spiel? What’s up with that?
Obviously government employees doing government business should be open to FOIA. In fact they are still, right? What is the complaint here?
Boris,
I’ll assume your question isn’t rhetorical. I’ll also assume you’re aware of the exemptions provided in the U.S. Freedom of Information Act (FOIA) and that for this discussion the work of a government employee contributing to an IPCC effort is not exempted.
How does this government employee doing government business perform her communications with the IPCC? Using offical channels, the employee uses her official correspondence and the government email system to transmit communiques and draft documents to various parties participating in the IPCC process. Under this scenario all official correspondence, emails, and electronic documents stored on the government agency computers are accessible via the FOIA.
Now suppose that the IPCC does not accept official correspondence from the government employee, nor emails sent from the government mail server. Suppose the IPCC only allows communiques and documents submitted through the [brazen|secret] IPCC registration-only online forum.
All documents posessed by the government agency are subject to FOIA. But if there was no official correspondence, no official email, then what is the agency going to find? Nothing, especially if the government employee deletes her documents after sending them to the IPCC.
The complaint here is that the IPCC online forum is designed to leave no trace, such that the IPCC deliberations, communications, drafts,etc. that are appropriately subject to FOIA are then beyond its reach.
Boris–
I’m don’t think it’s that difficult to understand.
Anyway, Horner is asking for OSTP to produce documents. However, he is asking them to produce documents OSTP stored and to produce documents that the IPCC stored and made accessible to Ms. Sherryl Abbot while she was employed at OSTP. The IPCC made documents available to her in her capacity as an employee of OSTP. In the FOIA, Horner explains why the documents on the IPCC servers or machines are subject to FOIA. The reason is that, in essence they have become communications between OSTP and the IPCC- and so subject to FOIA.
I have no idea why Romney’s name come up.
Well… it depends who is doing the complaining. Horner’s FOI request asks OSTP to provide him documents a government employee did doing government business. The novel issue is that a system has been set up such that the government employees communicate using channels external to the government– in this case, electronic fora created by the IPCC.
Ordinarily government employees would use their government email, government letter head, store things on their government computer and so on.
I would say that quite a few people are complaining that the system created by the IPCC is intended to make government employees doing government business fall outside the reach of FOIA. We’ll see if that IPCC system manages to make the fall outside the reach of FOIA. subject to FOIA.
I think people have every right to be unhappy if the IPCC is trying to do things to make government employees communication with an outside agency (in this case the IPCC) escape FOIA. No matter how much the IPCC may not like the fact that US government employees and agency employees fall under FOIA, it’s not the IPCC’s place to decode they shouldn’t be.
Nick, please cite the IPCC policy that allows any government official to request
1. author correspondence
2. draftsâ€
Why do you think they need such a policy? The IPCC needs their ratification. They are sovereign governments. They can refuse it for any reason at all. Or no reason. And they can request anything they like. They are not subject to IPCC policies.
#########
this gets to the crux of our disagreement.
Our disagreement is not over whether the IPCC has such a policy. It doesnt. You think this is not an issue. I think it is an issue.
Under your approach any government or government official ( say the EPA ) can ask for the background information. This is done all the time in making laws. On your view if the IPCC refuses the request the government or government official has but one recourse: reject the report and its findings. That sort of brinksmanship is bad politics and as carrick notes its bad for science. God forbid, there is another piece of grey literature or WWF literature that sneaks its way into the document. God forbid the republicans get into power and request the back channel communications. God forbid the IPCC denies the request. And then what? I certainly dont think its a wise move to decrease the transparency and accountability when granting more is so easy.
for 99% of everything the IPCC does there is nothing to fear. Nothing to hide. So open it up and take that objection off the table. I think the IPCC should simply say that all correspondence, all drafts will be made public record after publication. That will
1. improve the quality of drafts
2. Keep preople from saying intemperate things in their correspondence.
3. take the transparency issue off the table.
Your approach is begging for a fight. A fight you might win, a position you might defend, but the last thing this science needs is fights over process. The last thing it needs is a republican controlled congress and president demanding full disclosure after the fact or as a part of their approval. A process fight with no clear process in place is a disaster and the precautionary principle suggests that the harm done by a drawn out process fight far outweighs the harm done by openness.
Robert
“Is there a way to do a FOIA on Roy Spencer, John Christy and Pielke?”
It depends. The approach one guy took was to go after the agencies that run the platforms that Christy and Spencer use. Simply, we wanted the code that runs on the satellite so he went after that with FOIA.. ran into an ITAR restriction.
So just start out searching where they get their money from and see what the contractual requirements are or the places they work and see what the policies are. If you need help writing a request just ask.
Ah.. I see carrick has already linked to magicjava
Lucia,
I think our positions are close, but perhaps looking at the same information from different perspectives.
My starting point is that it is pretty much universal practice for any organisation to have some level of confidentiality surrounding the development of public documents.
Other organisations who participate in these activites will always have to have regard to those confidentiality requirements, while having regard to relevant policies and legislation. This can often be informal or not even discussed, but it is common for larger and more systematic interactions to have rules around them.
In this context, the actions of the IPCC and OSTC reflect universal practice. You or I can disagree with the extent of disclosure and whether its practice conforms to legislative requirements. You could also argue that the extent of confidentiality sought is about avoiding past embarassment.
I would have no problem with the CEI putting out a media release saying they thought the IPCC needed more transparency because thre is valuable public information which is currently being treated as confidential. Or that it believes the OSTC is not complying with FOI requirements.
However, the focus of the CEI’s claims it that the practice itself is motivated by past embarrasment, was consciously done for this purpose and is somehow illeigitimate. Given the universal default position is for some level of confidentiality, I think the CEI falls well short of providing any evidence to the contrary. All it uses are assertions and suppositions that there is an alternative motivation. In fact, taken to its logical conclusion, the CEI allegations could be made against any organisation or individual who does not continuously practice full disclosure of all public and private activities.
Regards
So when a Us agency, say the EPA, goes to do an assessment
http://wattsupwiththat.com/2011/10/18/ruling-polar-bears-cant-be-used-to-regulate-co2/#more-49442
If that agency decides to request background information from the IPCC.. lemme see your working papers, your drafts journals, your internal correspondence… and the IPCC says ‘no’, then what?
think they won’t ask? I would If I was politically motivated to kill the influence of the IPCC. So, Nick one of the reasons for having a policy is to protect yourself from people who are motivated to cause grief and trouble and distraction.
Jason (Comment #84077)
October 18th, 2011 at 5:25 pm
How many of them officially state that they are “objective, open and transparent?”
“the IPCC deliberations, communications, drafts,etc. that are appropriately subject to FOIA are then beyond its reach.”
Just a point of curiosity – whose FOIA are we talking about here. US? Va? Zimbabwe?
Jason:
That’s true, but this isn’t an ordinary document.
For it to be a consensus document it needs to be fully reviewed within the community and there needs to be a “paper trail” regarding all decisions made about redactions, additions and other modifications of the document.
That’s standard practice too.
I suppose you guys are OK with this not being a document that actually comes from and represents the true positions of people within the climate community? That part is OK with you?
I am sure at this point, that even if it were typed out by monkeys and contained just random characters, as long as it had the IPCC stamp of approval on it, there are people who would still be glowing in approval of it.
My starting point btw is to pretty much ignore the CEI and read what the IPCC itself says, and I am reacting to that, not a third parties characterization of it.
(I don’t need an explanation of the IPCC’s motives, nor do I care, it is what they are manifestly doing that is the real issue here.)
NIck:
Just a point of curiosity. If the IPCC report were typed out by monkeys, you’d still support it and the process used to arrive at it, right?
Nick – why do you keep bringing up the RNC/Bush admin (ZOMG, Bush!) thing on this topic, on seemingly every blog that mentions the IPCC back channel?
If you think they’re equivalent, do you think they’re both right, or both wrong?
Carrick: dude, chill. 🙂
.
and read what the IPCC itself says, and I am reacting to that, not a third parties characterization of it.
.
So you saw the bit where they said they would release the
reviewing documents after the report is complete?
.
I suppose you guys are OK with this not being a document that actually comes from and represents the true positions of people within the climate community? That part is OK with you?
.
I guess that would depend very much on your evidence for that, because right now I notice you didn’t provide any.
toto
I’m sure he did. Why do you ask?
I think he missed the part where I said:
If you are not planning on retaining the emails, or making it impossible for people to gain access to them (they did that in the last IPCC review by the way, so don’t claim it doesn’t happen), then you are deleting an important aspect of the deliberative process.
No Carrick, I just think the arguments around disclosure of working materials and the public interest are much more nuanced than characterised by the CEI and a number of other posters here.
Jason–
Arguments are around disclosure can certainly be more nuanced than those presented by CEI. One can certainly find unnecessary adjectives and whole tangential ideas injected into the CEI FOI or other communications merely to set a tone and to make the FOI a more political document than required to merely request a set of communications.
However, on this
I would disagree that the focus of CEI’s claim is that the practice (of something) is motivated by past embarrassment &etc.
I think the focus of CEI’s claim is a communication system was put in place with the intention of preventing communications by government officials to the IPCC being accessible by FOI. CEI wants the ‘system’ to decree these communications remain accessible.
I think the alleged motive of avoiding embarrassment is an unnecessary tendentious flourish that is irrelevant to whether FOI requires disclosure of the documents. I think Chris Horner put that in there to, uhnm…how should I put this…. encourage the choir to sing?
I mostly disagree.
For one thing I disagree that CEI’s allegations are merely complaints that the IPCC or OSTP don’t practice full disclosure of public or private activities. Even if that was their complaint, I think it’s perfectly reasonable to complain that a government funded agency — e.g. OSTP– should not be able to insist on the level of privacy permitted an non-government private entity– like say, Dunkin’ Donuts or a private individual like, say, “Joe Schmooo”.
Joe Schmoo is allowed to live his life without constantly providing “full disclosure” because Joe Schmoo really, truly is a private individual. He might be required to disclose certain details– for example file tax returns. He might be required to disclose more under certain circumstances– for example, if filing for food stamps. But mostly no one criticizes him for avoiding “full disclosure’. There is absolutely no inconsistently with expecting IPCC or OSTP — both government funded– to provide “full” (or at least ‘fuller’) disclosure while not criticizing Joe Schmoo or Dunkin Donuts for providing lower degrees of disclosure. The degree to which Joe Schmoo or Dunkin Donuts suck at the public trough actually affects the level of disclosure one ought to consider reasonable.
But even though I think it’s perfectly reasonable to complain when the IPCC does not fully disclose things that Joe Schmoo has a perfect right not to disclose, I think this is not CEI’s main complaint. I think CEI’s complaint is better described as the IPCC encouraging OSTP or other agencies to communicate with the IPCC on specially crafted channels that might fall outside the reach of laws intended to make OSTP or other agency communications be accessible to the public (on specific request sent to the agency and with appropriate caveats excluding certain materials that are legitimately confidential.)
I think any suggestion that private individual of companies do any thing similar routinely would be inaccurate.
I think it’s relatively rare for private organizations or individuals to go to great lengths to encourage public officials or agency employees to communicate with them using specially created and maintained channels rather than by using the methods government officials would ordinarily use. (These normal methods are the government official or agency emails, phone or letter head; the special ones would be IPCC owned channels. )
As George Tobin points out, the FOIA’s “predecisional discussions†exemption applies only to decisions within the government agency. While in some cases it protects information sent to an agency to aid in making agency decisions, it doesn’t protect information sent from an agency to an outside organization to aid that organization in making its decisions. For example, consider Dow Jones Company Inc. v. Department of Justice. Dow Jones sued to overturn the denial of a FOIA request for information sent from the DOJ to Congress. The D.C. Circuit court held that the denial was improper “because Congress is simply not an agency” and “in order to qualify for the deliberative process privilege under Exemption 5, the government must demonstrate that the document is either inter-agency or intra-agency in nature, and also that it is both predecisional and part of the agency’s deliberative process.” This was despite the fact that Congress is exempt from FOIA. So information sent from a government agency to a non-agency is subject to FOIA even if the non-agency isn’t itself subject to FOIA.
Nick
If a US federal government employee communicates with the IPCC (or anyone external to the fed gov’t involved with the IPCC) those communications in both directions are appropriately the subject of US federal FOI.
If a VA gov. employee communicates with the IPCC those communications in both directions are appropriately the subject of the state of VA’s FOIA.
If a Zimbabwe government employee communicates with the IPCC,those communication are those communications in both directions are appropriately the subject of the state of Zimbabwe FOIA (assuming Zimbabwe has something like FOIA.)
To parallel Carrick: If a Fed/ state of VA / Zimbabwe. employee communicates with flying monkeys from OZ, those communications are appropriately subject to (Fed/VA/Zimbabwe) FOIA respectively. The key is neither the “flying monkeys” nor “The IPCC” but rather the fact that Fed/ state of VA and /Zimbawe employees communications are covered by their local versions of FOIA.
Lucia #84091
I think you missed the point of the quote I was responding to – I’ll quote more of it:
“The complaint here is that the IPCC online forum is designed to leave no trace, such that the IPCC deliberations, communications, drafts,etc. that are appropriately subject to FOIA are then beyond its reach.”
It’s an assertion that IPCC deliberations etc are appropriately subject to FOIA. Not communications from gov’t employees. That’s why I asked – whose FOIA?
TerryMN #84084
I originally brought up the Bush RNC emails at WUWT in response to a poster who said that Obama should be impeached because of these “revelations” from CEI. I pointed out that there was had been to impeach Bush for something much closer to the President.
But I also said there that, no, I didn’t think the cases were equivalent. The WH used an external server for WH business, and the PRA was an issue. Here the IPCC is using IPCC facilities for IPCC business, and I don’t think there is an issue at all in that, legal or other.
Carrick #84083
The IPCC reports are excellent and informative documents from which I have learnt a lot. I do not think monkeys are that good.
Thank you Lucia,
I think my emphasis is different to yours.
I appreciate that you have tried to get to the essence of what CEI is seeking in its FOI request. I hope what I’ve said previously indicates that I have no issue with their attempts at greater disclosure (though I’ve not discussed the relative merits of said greater disclosure).
My point relates to the totality of the argument put forward by CEI, including unnecessary adjectives and tangential ideas. In this context, I still believe that the sum total of the argument requires full disclosure on an ongoing basis for everyone. In particular, my reading of their public argument is that:
1. organisations are avoiding legal obligations;
2. they are doing this in order to avoid embarrasment; and
3. the evidence for this intention is that they have put in place mechanisms to protect confidentiality.
The first point is a matter for legal debate. The second point is an allegation which could be applied to any organisation or individual who undertakes the third point. Therefore, any person or organisation who protects confidential information could be argued to be doing so to aviod disclosing something that is in the public interest. You will only know that it is not in the public interest once you have aired everything.
The reason I’ve taken the time to point this out (and apologies for taking your time as well), is I believe that encouraging the choir to sing through fallacious arguments, and the claims of secrecy and implications of conspiracy, are damaging to public debate. I also believe (but please note do not subscribe this motive to you) that the promotion of this without qualification contributes to this damage.
Regards
They contain all the references you need to verify their arguments and conclusions, which are all also in the public domain. The IPCC output is one of the most open documents ever produced.
I would like to put in an FOI for all of Anthony’s, the Heartland Institutes and McIntyre emails, as well as the CEI. Where do I send it?
For questions such as “is transparency desirable in this case?,” I employ the 3-Ps Rule.
People, Politics, Policies.
1. Do I like the people?
2. Do I agree with their politics?
3. Will transparency advance the policies I favor?
1. I think climate scientists and IPCC staffers are decent and friendly people.
2. As Nick Stokes said, “The IPCC reports are excellent and informative documents.” Clearly, helping the general public and decision-makers understand the looming menace of high climate sensitivity is a noble cause.
3. Many of the recent insights into the workings of climate science and the IPCC have highlighted the sausage-making aspects of these enterprises. This has had two bad effects. First, it has muddied the “it’s worse than we thought” message, and slowed the rush towards wind, solar, carbon derivatives trading, and other essential and lucrative solutions. Second, the possibility of sunlight has likely dampened the exuberance of public-spirited scientist-advocates. It may even have led a few to re-think their positions.
Thus, this is an easy call. All communications that touch the IPCC or any of its staff or working-group members should be exempted from U.S. FOIA regulations.
I’d go farther than that: the U.N. should enshrine the confidentiality of all IPCC-related communications at the highest level of international law, and set severe penalties for any violations.
If there’s something that the wider public needs to know, I have every faith that the relevant authorities will disclose it, in good time.
Nick
I think I got the point of what Earle Williams wrote andyou missed Earle’s point. I don’t think he intends to say that all IPCC delibrations are subject to FOIA. I would think anyone would understand he meant the subset of communciations from sent by the government employee mentioned repeatedly in his comment and also mentioned in the sentence just prior to the “fuller” version you quoted.
I thought you had missed the point about the government employee and decided to clarify by linking the FOI to the type of government employee Earl mentioned repeatedly in paragraph containing the snippet of text you misinterpreted.
It appears you did indeed miss Earl’s point about the government employee. You were even able to miss the “government employee” even after you scrolled back and reread!
AMac,
Your above quote is one of your three arguments in support of non-transparency of predecisional (sausage making) processes of IPCC climate assessment.
Let me respond in full to your above quote with my argument in support of 100% IPCC transparency including the ‘sausage-making’ predecisional processes inside the IPCC.
My response is:
So AMac, you may have noticed that my argument in support of 100% IPCC transparency (including sausage making predecisional assessment processes) is exactly the same as your argument against such IPCC transparency.
John
Re: John Whitman (Oct 19 07:42),
> you may have noticed that my argument in support of 100% IPCC transparency… is exactly the same as your argument against such IPCC transparency.
Hmm, you may have a point. However, that still leaves my arguments #1 and #2.
🙂
As a famed political scientist and Man of Action once quipped, “Who? Whom?” That’s the best way to look at these questions.
Jason–
I disagree with your interpretation of CEI’s public argument. I think the argument is:
1) We have evidence the IPCC has put in place a system to create electronic communications using systems outside the government control.
2a) The IPCC describes the motive as requiring confidentiality,
2b) and is using legal terms of art that suggest their intention is to shield communications on that system from FOIA.
3) The IPCC is encouraging government agents to communicate through this shielded system, avoiding the use of government channels known to be subject to FOIA.
4) The law says that the communications by these government agency employees to any external body — including the IPCC– are subject to FOIA, and remain subject to FOIA even if they are communicate using an electronic channels.
5) Under FOI, CEI requests all communications between Sherryll Abbot of OSTP and the IPCC, including those communicated on IPCC channels.
That said, the language includes flourishes like “embarrassment”, speculation about motive &etc. Moreover, it seems the structure of FOIA requests is to put the request first and present the discussion in an order I would consider “reverse”. But I think that makes sense because the FOIA officer’s first thing is to say:
“What am I being asked to hand over” — that’s point 5. After that:
“What’s the claimed legal basis”– that’s 4. And so on.
But I think the CEI argument is more like my 1-5 above than your 1-3.
I don’t think anyone– including the IPCC– would be criticized for doing (1) or (2a) only. I think many could even go so far as using the legal term of art (2b) wouldn’t get people to upset.
But it’s when someone does (3), and gives the appearance of trying to shield communications from FOIA, that critics will begin to emerge. If the person doing (3) denies (4), more critics will emerge. And if the refuse requests under (5) even more will emerge.
We have roughly 18 working days to discover OSTP’s response to (5). If on receiving request (5), the communications are all handed over without a peep, them we’ll all realize this was just a storm in a teacup. At that point, we will know that neither the IPCC nor OSTP intends to use this system to shield communications from FOIA, because it will be clear that any one can just submit a FOIA request and get information.
So, the system will then be one that permits confidentiality only up to the level consistent with FOIA. That would be appropriate.
If they don’t hand them over, then I’m sure the legal process will escalate, and Horner will appear in court explaining his theory of why FOIA applies to the documents communicated to and from government agents by means of the IPCC system.
bugs
Why don’t you try sending it to OSTP’s FOIA office. See what they tell you. The address is in Horner’s FOIA request:
Office of Science and Technology, John Holdren, Director
Old Executive Office Building
Attn: FOIA Officer (Barbara Ann Ferguson)
Old Executive Office Building, Room 431
Washington, DC 20502
After that, we can send Barbara Ferguson request asking for all the internet comments by commenter “bugs”.
I have noticed of late that AMac has used irony to make some excellent points. I hope this approach has not been lost on some responders. Even his mockery of Nick Stokes, the staunch defender of the status quo, brings forth an imagery for me of an SNL skit where a character runs around defending in great detail the existing state of affairs.
This thread seems to talk around what I think is a basic point of the transparency issue and that is where should the line be drawn on public access to the background discussions on how a report from a government body that effects policy is put together. I suspect that much of what some would like to shield from the public has to do with keeping under wraps the advocacy positions of the supposed non partisan and disinterested (in the final outcome) participants.
What should be withheld from these discussions and why? I see little need for withholding any information used in arriving at a final report – such as that issued by the IPCC on climate.
We have seen in recent times a lot of leaked information from government bodies and I wonder how much of those revelations has been determined to be negative to the general public. How much of the negative impact of these leaks on those involved comes from the fact that the information was being withheld from the public and not necessarily the content of the information? How much should an interested individual suspect the motives and operations of a government sponsored group that does not voluntarily reveal these deliberations?
bugs
“I would like to put in an FOI for all of Anthony’s, the Heartland Institutes and McIntyre emails, as well as the CEI. Where do I send it?”
When Anthony, The Heartland Institute and McIntyre are financed by taxpayers, then you (taxpayer) are entitled to FOI request their emails. When they work for their own dollar (as they do), I suggest you send your request to the place the sun never shines.
After that, we can send Barbara Ferguson request asking for all the internet comments by commenter “bugsâ€.
Umm, they are all on the internet already.
bugs–
If you are going to try to use FOI for something it doesn’t cover, I don’t see any reason why we shouldn’t do the same. 🙂
AMac,
Thank you for your gracious reply.
Kenneth Fritsch (Comment #84106) made a point which I took to mean that your 3 arguments might be irony. If they were, then good for you. : ) Whether you were being ironic or not, my responses will be the same in either case.
First, I would like to sincerely thank you for how well you expressed your #3 argument (for some non-transparency in IPCC processes). I could not have expressed the situation better in support of my case (for IPCC transparency including the ‘sausage-making’ predecisional processes inside the IPCC).
Responding to your #1 argument (quoted above) – I respectfully think your argument (ironic or not) is irrelevant. Whoever belongs to the team at the IPCC, whether loved and respected by anyone, it just does not matter wrt to the necessity of 100% transparency of the IPCC processes. My argument is that, given the potentially high impact of what they are doing, there must be an equivalent reasonably high vigilance and extremely detailed due diligence toward the IPCC processes; in other words 100% verification of IPCC processes then appropriate 100% open critical evaluation of IPCC processes in situ, in process and in real time. Praise and love would be earned then, or not, as the case may be.
For your #2 argument (quoted above) – I find your argument (ironic or not) to be just popularizing Nick Stokes’ and possibly your evaluations, which isn’t an argument about a case for or against IPCC transparency. My argument is that the only sufficient information needed to evaluate the IPCC processes (including the ‘sausage-making’ predecisional processes inside the IPCC) is the availability of all info in-situ/ in-process /in-real-time. It the only thing that is reasonable given the potentially extremely high impact of the IPCC’s assessment products.
John
Re: AMac (Comment #84099)
A perfect example of what the French would call au second degré (see http://fr.wikipedia.org/wiki/Second_degré).
You must be having fun.
Julio is of course referring to this meaning of the term: “Dans l’humour, le second degré consiste à dire le contraire de ce que l’on pense, en particulier par ironie.”
And you all realize that this IPCC system was developed by Tom Stocker and Patchy.
And you all recall that Jones in the emails explains how he is going to discuss FOI with Patchy and Stocker and give them his ideas.
And you all realize that the game CRU tried to play ( with Michel and Others ) is to argue that their mails were not subject to FOIA because they were doing IPCC business.
here is what you have. You have a proven fool, Jones, who loves to subvert the law or twist the law or read it in ways that violate the spirit and intent of the law, you have a law breaker, advising the IPCC on how to handle FOI. And, they of course, follow his lead.
Steven–Where did you learn who designed the IPCC communication system?
Re: John Whitman (Oct 19 11:18),
You raise some compelling arguments regarding the benefits of transparency for an organization with the IPCC’s mission. Perhaps Nick Stokes might put down his magnifying glass for a minute and address those general ideas. Equally, bugs might come a bit closer to ground level and engage the specifics you mention.
There might be pro-opacity arguments beyond those like the 3-Ps Rule I invented for #84099 (which amounts to, “my friends and allies deserve special treatment”). Once presented clearly, we can evaluate them.
.
Julio and Neils,
Merci.
Not the system, the policy.
http://www.ipcc.ch/meetings/session32/inf04_p32_review_ipcc_proc_proced_notes_informal_task_group.pdf
in the world of financial services, phone calls between clients and institutions are routinely recorded…maybe that is coming for government departments too. After all, a lot of telephony is done over IP these days and is readily archivable.
Currently looking through a new stack of other documents.. needing a new copy of outlook to open these mails.. busy on other stuff,maybe get around to it.. what the hell I’ll tease you all..
No these are not “stolen” documents.. several folks have them. personally I’m tired of it all.. but stupid arguments may get me motivated..
One new mail on the whole Briffa Ar4 violating policy..
Revisiting this argument. below find Overpeck ( on Brian Angliss site ) making the following argument.
http://www.scholarsandrogues.com/2010/06/08/climate-scientists-still-besieged/
“Mosher also claimed that the emails meant that “[a]ll comments and communication must go through official channels to insure fairness and transparency and a trusted scientific record.†However, the email above doesn’t support either claim. Instead, the email appears to be speaking specifically about only the formal IPCC comment submission process, not about communications in general. S&R asked Jonathan Overpeck, Director of the University of Arizona Department of Geosciences Environmental Studies Laboratory to explain what he was saying in the email in question, and this is what he said:
[T]he email from Neil Roberts relates to a very special aspect of the IPCC process, and that is the peer review of a draft report. In this case, the operating procedure is different because the IPCC strives for a transparent peer review process. For this to work, especially considering the thousands of comments received in each of the review cycles (i.e., for multiple drafts), each IPCC Working Group (WG) sets up a process for the ingest of all reviewer comments. Anyone can comment, but if all the comments come in through the official process, then the WG can track each and every one of the comments and make sure they all get addressed by the author teams. Then, the WG can make all the comments and responses (by the author teams) public. Nothing hidden this way.
Thus, what I was advising in my email was that Neil send his comments in through the official process, rather than informally to me and/or one of our lead authors (e.g., Keith [Briffa]).
In other words, Overpeck was not pointing out to Briffa that he shouldn’t contact any other scientists, but rather telling a reviewer (and copying Briffa on the communication) that he had to go through the official IPCC comment process.”
########################
basically the argument is that the policy was that reviewers must submit through channels, but not that authors couldnt contact or get comments from outside this system.
The new mail.. just a clip.. there’s more.. but I want to see the stupid counter arguments I fully expect first.. Its funner that way..
“Please note that all review comments must be submitted through the TSU as this formal review process is governed by some specific IPCC rules. In particular, it is important to avoid any perception that certain colleagues or groups of scientists have special channels for making comments to you as authors. Thus all comments are to be treated equally, and if you have colleagues who would like to make comments on the draft, please ask them to contact us for access to the second draft. Please do not distribute those access details yourself. ”
perhaps the right way to release this stuff is slowly.. letting others put their stupid arguments out there..
Well, Briffa contacted Wahl and sent him a draft and asked for comments back. I suspect people will say.. The rule says nothing about soliciting comments outside the system…The rule is about submitting comments outside the system…. On this view..
If Wahl asks briffa if he can comment ,then Briffa is supposed to send him to comment through channels.
BUT, if Briffa asks Wahl to comment outside the system, then its ok.
Which leads to the following purely hypothetical hilarious conversation
Wahl: hey keith I got a comment I’d like you to consider.
Briffa: excuse me, That wasn’t clear, you are breaking up..
cant understand a word you are saying.. hey,Wahl? Wahl?
Wahl: yes?
Briffa: ah much better.. Wahl, glad you called I was wondering if you would like to comment on a draft.
Wahl: huh, didnt I just ask you if I could?
Briffa: I did not hear you ask. I most certainly did not hear you ask. I asked you first, remember that. I asked you to comment. that way we dont have to keep a record or have it go through the TSU system. If you ask ME if you can comment I have to send you to become and official reviewer.. But if I ask you, then its a different matter.
Wahl: Huh, that’s retarded, is Mann in charge of that now? are you sure?
Briffa: I’m sure, Jones says so, he knows this process pretty well.
Oh joy. I did not want to spend a bunch of time going over this old issue, but new documents.. meh.
What people don’t get is that I generally don’t enjoy going over this stuff again and again. But, there is only one thing that will get me annoyed enough to go through this stack of stuff. Stupid arguments.
lucia (Comment #84060)
>Seems to me CEI provided evidence for charges they’ve actually made.
I went to their website, and all I found was “CEI has learned …”
No source, no details.
Meanwhile, it seems to me that this is a classic example of a self-fulfilling prophesy: if the FOIA request turns up what they claim, they will say “see, we were right!” But if the FOIA request turns up zip, they will say, “see, we were right!”
So this has the appearance of being a rigged game to score political points. If CEI wants to avoid that appearance, they need to go public with their sources, and they need to do so now, before the FOIA request has been acted upon.
AMac #84117
“Perhaps Nick Stokes might put down his magnifying glass for a minute”
No, the glass is on the other gumshoe. The IPCC has a simple mission. It produces scientific summary reports. And it does that very well. Most people judge the organisation by its output.
What is peculiar is to demand to scrutinise the drafts, emails etc, for gotchas, with a lamentable lack of interest in what the organisation is actually saying.
But OK, on the issue of transparency – in your words, there is an aspect of sausage-making in compiling any document. You start with a blank sheet. Beautiful balanced words do not immediately appear. There are rough drafts. People haggle. The work of scientists is criticised in ways that probably should remain private. And then eventually something publishable appears.
What the demand for “transparency” seeks to do is to make every draft a publication. This doesn’t and can’t work. People take pride in what they publish, and the drafting process just moves into a different, more inconvenient place. It just obstructs the process.
There is a need for balance, and I think the IPCC process does this well. Ironically, the need for a discussion space is well recognized in FOI laws. Internal discussions in agencies are exempted. Horner and co have gleefully seized on a loophole whereby they are not protected if an NGO is involved. But of course, NGO’s are not themselves subject to FOI. So the IPCC is quite understandably saying, we’ll do it ourselves.
http://rankexploits.com/musings/2011/an-ipcc-backchannel-%e2%80%98-to-hide-ipcc-deliberations-from-foia/#comment-84092
Thanks Nick – that makes sense.
Nick Stokes & AMac,
Well it is cocktail hour (>5:00 pm USA EST) here at the homely old lakehouse, so no more comments tonight . . . . hopefully will catch you here tomorrow.
Have a great evening.
lucia thanks for your lovely place
John
“So the IPCC is quite understandably saying, we’ll do it ourselves.”
People who already accept the science will of course already accept the reports of the IPCC which purports to be a summary of the science. But a cursory examination of the output indicates that the document is not merely a summary of science. Even AGW purponents argue that it is more than a summary of the science. In some cases the “science” has been made up from whole cloth.
So the people who already accept the science of course see no trouble with the IPCC, they see no trouble with just accepting the document with having the ability to audit it. They trust.
If the documents were only aimed at those who trust, then of course having an audit would make no sense, except maybe a “show” audit. But the document is used by many as proof of the science. The IPCC says so. When it is used as rhetorical device to prove a point, then that purpose cannot be served by an unaccountable process.
On one hand people want to view the IPCC as merely a collation of the state of the science. Like the “best of” CD. In this case since the process is merely collating the available science, an audit makes less sense. theya re just cutting and pasting the “best of”. They really are not doing science.. they are just cobbling together a big old document.. move along.
On the other hand those same people want to use the reports as “proof”. The IPCC says so. 2500 scientists say so. they all agree.
When this is the claim made for the IPCC, when it becomes a basis for claims rather than the mere complilation of claims, Then audit takes on a more important function. It becomes vital.
If folks want to relegate IPCC to the epistemic status of wikipedia. I got no issues. But, they lose the appeal to IPCC authority. which makes it useless.
Kap
So, I take it you didn’t find the link to the FOI they filed and you haven’t read it.
I don’t think this is quite right. The issue isn’t what it “turns up”, but what decision is made. In fact, if OSTP hands over everything Horner asked for, then he might have to say “I was wrong. The IPCC set up isn’t intended to get around FOIA.”
Nick
Not by my definition of “publication”. The fact that a draft can be obtained and read by people doesn’t make it “a publication”.
It’s not a “loophole”. The IPCC is no more a US government organization or agency than Dunkin Donuts. When a US government organization of agency communicates with the IPCC, it’s communicating something that is “decisional” from the POV of communicating it out from the US agency. It may be “pre-decisional” inside the IPCC, but it’s “post decisional” for someone like OSTP, NOAA, LLNL etc. The decision the government agency made was to communicate it with someone outside a government agency.
The same thing happens when the WH communicates to someone in the RNC. Prior to the WH communication, there might be internal WH memos between people dickering over how to respond to some question presented by someone from the RNC. But once the WH sends a message to the RNC, the message they send out is “post decisional”.
Before Nick Stokes has to kill any more straw men or shift from the issue yet again, let’s try this:
Let’s say, hypothetically, a final IPCC report includes utterly silly contents about malaria or hurricanes despite express objections of participating scientists. Is anybody out there (including my country’s elected officials who may choose to rely on the IPCC) entitled to know the who, the how and the process that led to such a poor outcome or is it all a “pre-decisional” “discussion space” “internal” matter? Are any documents or communications to be made available as a matter of course? And who decides what the process and the rules are?
The silly red herring that CEI et al are supposedly asking for instant publication of every edit to every draft aside, what should be the recordation and paper trail process? Surely Nick is not saying that the IPCC is the sole judge of its own accountability, that they get to do whatever they feel like doing and withhold anything they choose not to disclose regarding the production of the report. (Unless Nick and bugs are the same person…)
Another example: Is a decision to include unpublished, non-peer reviewed documents by IPCC insiders and their friends (recall the supposed Jan 2006 deadline issue) or the arbitrary exclusion of other highly substantive work (Roger Pielke, Sr comes to mind) a “pre-decisional”, “internal” matter that no one on the outside has a right to examine in any detail? Are we entitled to know who made the call?
Lastly the claim that these are trivial gotcha issues unrelated to The Science that Nick high-mindedly praises is utterly disingenuous. Bad practices in service to an intentional lack of accountability do affect the science. Cherry-picking and cronyism are not the hallmarks of great science and serve to unfairly undermine the credibility of that which is substantive within the IPPC product.
The entire planet has a right to know or read anything the substantively affects the form and content of the IPCC product. Period. (That goes double since the petty tribal culture of the climategate figures was exposed.) Such information need not be available in real-time but does need to be in a record that is public, complete, timely and transparent.
George
I’d like to step in to note that saying something should be accessible by FOIA is absolutely not the same as requiring instant publication. It’s not even the same as requiring “publication”. It just means that — one request– information can be obtained by the public.
I wouldn’t go this far. But I think that the American public who fund government agencies have a right to know what advice and input they decided to provide to the IPCC and they also have a right to put this in context.
From the POV of the government agency the input they provide the IPCC is ‘post decisional’ relative to the government agency. The questions posed or information sent by the IPCC provides the context that lets us understand the “decision”. (Without questions, knowing the answer is 42 doesn’t tell us much, does it?)
Steven Mosher #84125
” Even AGW purponents argue…”
I’m confused. I don’t know if I’m a purponent or not.
Nick Stokes,
I love your Comment 84122. I also loved the movie Say Anything for its catchy title.
> The IPCC has a simple mission. It produces scientific summary reports. And it does that very well.
Got it. The IPCC is just a bunch of scientists getting together to write a review paper for the peer-reviewed literature. Folks do this all the time — without any need for transparency!
> What the demand for “transparency†seeks to do is to make every draft a publication. This doesn’t and can’t work. People take pride in what they publish, and the drafting process just moves into a different, more inconvenient place. It just obstructs the process.
Got it. “Transparency” (with “sneer quotes”) obstructs the processes of the IPCC.
> Please note that all review comments must be submitted through the TSU as this formal review process is governed by some specific IPCC rules. In particular, it is important to avoid any perception that certain colleagues or groups of scientists have special channels for making comments to you as authors. Thus all comments are to be treated equally, and if you have colleagues who would like to make comments on the draft, please ask them to contact us for access to the second draft. Please do not distribute those access details yourself.
Got it. There’s an example of people of ill will, using bureaucratic jargon (please note that bla bla bla) to force the IPCC to be “transparent” (“sneer quotes”) to obstruct the…
… oh, sorry… That last paragraph is taken from Steve Mosher’s Comment #84120. It’s quoting IPCC authors endorsing the IPCC’s stated policies on transparency (no sneer quotes).
… now I’m confused…
> There is a need for balance, and I think the IPCC process does this well.
Oh good, cut-and-paste is working again. That’s taken from Nick’s Comment 84122.
Um, wait a second… What “need for balance”? We just finished establishing the absence of any need for “transparency” (“sneer quotes”).
Boy, it’s easy to get confused when the subject is so complex and so subtle!
I’m going to return to the 3-Ps Rule. I have faith that the IPCC’s policies–whatever they are–just go to show that this is the best of all possible worlds.
For Julio and Neils, that’s le meilleur des mondes possibles.
Nick Stokes:
In my opinion they s*ck at it. You must not have any standards.
George Tobin #84128
“The silly red herring that CEI et al are supposedly asking for instant publication of every edit to every draft aside,”
Well, here’s what they demanded in the UVa case:
“As used herein, the words “record”, “records”, “document” or “documents” mean the original and any copies of any written, printed, typed, electronic, or graphic matter of any kind or nature, however produced or reproduced, any book, pamphlet, brochure, periodical, newspaper, letter, correspondence, memoranda, notice, facsimile, e-mail, manual, press release, telegram, report, study, handwritten note, working paper, chart, paper, graph, index, tape, data sheet, data processing card, or any other written, recorded, transcribed, punched, taped, filmed or graphic matter now in your possession, custody or control.”
And yes, they wanted all records of Michael Mann. OK, I suppose that wasn’t instant. But I didn’t say that either.
“Surely Nick is not saying that the IPCC is the sole judge of its own accountability, that they get to do whatever they feel like doing and withhold anything they choose not to disclose regarding the production of the report.”
No. Following each author stage, parts of which are confidential, there are review stages. Virtually anyone can act as a reviewer. The review process is on the record.
Nick:
1) To clarify, the alleged red herring was that there be real-time realease of edits etc which was the gist of your accusation against CEI. The unrelated and irrelevant UVa case was a FOI request by a different requestor demanding extant records long after the fact, not an effort to intrusively monitor work in progress. The link in your mind (that it was the evil right again persecuting the noble climate science fraternity) is not operant in the real world.
2) The review process for drafts tells us nothing about how authors get selected, whether there were improper communications about excluding or including citations for personal reasons or ideological grounds. And your point has nothing to do with the issue at hand — proposed private communication channels expressly designed to prevent scrutiny of precisely the kinds of influences, exchanges and decisions that should be transparent.
lucia #84127
“it’s communicating something that is “decisional†from the POV of communicating it out from the US agency”
This is contrived. It isn’t a communication from a US agency. It’s someone like Susan Solomon participating in an IPCC drafting process with her colleagues.
“But once the WH sends a message to the RNC, the message they send out is “post decisionalâ€.”
If youy’re referring to Rove et al, the problem wasn’t the WH sending a message to the RNC. It was the WH sending a message from the RNC. Nothing emanating from the WH system at all.
George Tobin #84134
” The unrelated and irrelevant UVa case was a FOI request by a different requestor”
The requestor was:
Christopher C. Horner, Esq.2
Keswick, VA
and two colleagues. But yes, he wore his ATI hat.
“The review process for drafts tells us nothing about how authors get selected”
Well, the confidential author forum won’t tell you that either. They hae already been selected.
The most recent IPCC cycle included some introductory language in attempts to objectify the apparently subjective use of uncertainties concerning evidence and predictions related to climate change. That language implied that each group was responsible for providing and documenting how they arrived at a given uncertainty level. When I requested the documentation used I did not receive an answer from the IPCC . I thought, OK, I am not a publically recognized figure, but I’ll note whether the documentation used (or perhaps ignored) for this rather important aspect of the IPCC report shows up from other sources. To my knowledge it has never been revealed.
Now, one can resort to Stokes babble in attempting to defend the lack of transparency on some lawyerly grounds or science community niceties, but my point is that if the IPCC is not willing (and eager) to share this critical information, I have a major problem with their claim to be doing objective scientific work and the merits of their results.
Nick
No. It’s not contrived. In your example, Susan Solomon, acting for her agency is given decision making authority to provide agency input from her to the IPCC’s drafting process. As long as she is working for an agency, those funding her have a right to be able to request what sort of input she gives. This is true even if the IPCC process is still making a decision about what to do with that input.
If the IPCC wants her input as something other than a government agency employee, then it ought to be necessary for her to either
a) do all her work for the IPCC on her own “hobby” time, meaning that she will fill her normal agency obligations with other work
b) take a job with the IPCC itself or
c) take a job with a think tank who pays her and then has her work for the IPCC.
Nick
Huh? Where in the world does “the confidential author forum” come from? The no one else– not CEI, not anyone on the thread– is discussing anything limited to a “confidential author forum”.
Let’s see:
(1) White house staff were sending messages to the RNC using RNC email.
(2) Government agency employee sends message to IPCC using IPCC internet fora.
In (1) you seem to see characterize that as “WH sending messages from the RNC.” In (2) you seem to see that as IPCC sending messages from IPCC or at least you don’t seem to see it as .
But in reality, both have structure:
“A sends message to B using B’s messaging system.”
Lucia #84139
“White house staff were sending messages to the RNC using RNC email.”
No, WH staff were sending messages to the outside world using the RNC servers gwb43.com and georgewbush.com. From the HR report:
**************
“Where in the world does “the confidential author forum†come from? The no one else– not CEI, not anyone on the thread– is discussing anything limited to a “confidential author forumâ€.”
That is exactly what CEI is discussing. From their doc:
Nick–
Ok– some of the WH stuff might be different from some of what might happen with the IPCC stuff.
On the confidential author stuff, I thought you might be getting yourself in a muddled on a concrete example given. You are confusing the concrete example of what the IPCC with the sum totality of what CEI is talking about. The reality is that “no one else– not CEI, not anyone on the thread– is discussing anything limited to a “confidential author forumâ€.
“not CEI, not anyone on the thread– is discussing anything limited to a “confidential author forumâ€.”
Well, what else is CEI alleging (in this doc) the IPCC has done? The “IPCC back-channel” of your headline – what else if not this author forum?
Just wanted to note that Judith Curry has a review Laframboise’s book on that “bang up” organization, the IPCC.
On that thread you get to watch Peter Gleick lie about having read Laframboise’s book before he reviewed it on Amazon.
Seriously, with climate supporters like this, who needs enemies?
Nick Stokes:
The Department of Commerce Inspector General disagrees:
I parenthetically note that Judicial Watch, Inc. v. Dep’t of Energy is also readily distinguishable because the non-agency in question was a government organization within the executive branch, and that was the key issue in the decision.
An absolutely astounding thread. Some people actually seem to think secrecy within the IPCC is worthy of defense….. incredible, just incredible. Defunding is the only reasonable answer to this problem.
MJW,
That’s a different situation. Those were existing records held by NOAA. She believed they were exempt, and therefore she didn’t have to send them to the FOIA people. The OiG said that she’s wrong – it’s the FOI people who have to decide if they can be claimed as exempt (and state grounds). That’s simple FOI law – if the record exists, it must be assessed. Susan was wrong.
Here there is a proposal that eg Susan would participate in an online discussion at the IPCC. That would not create a NOAA record, so the OiG’s FOI-based rebuke does not apply.
SteveF,
Confidential discussions are held in all organisations, with good reasons. Rooms have doors. The Supreme Court, for example, drafts its findings at length in confidential meetings. Do you think they should be defunded? Or do you think their discussions don’t matter?
Here there is a proposal that eg Susan would participate in an online discussion at the IPCC. That would not create a NOAA record, so the OiG’s FOI-based rebuke does not apply.
If she creates the record on government time, or using government resources, it’s a agency record subject to the FOIA, even if it’s not created on the government email system. The only difference is she’d probably be violating the Federal Records Act.
MJW #84148
“it’s a agency record subject to the FOIA”
No, there’s a simple and necessary requirement to be subject to the FOIA – the agency has to have it. Otherwise, for example, they can’t search for it when a request comes in. GWU puts it thus:
That, Nick, is why the record would be created in violation of the Federal Records Act. Do you honestly believe federal law allows the FOIA to be circumvented simply by creating what would otherwise be a covered record in a manner that it can’t be retrieved? It’s the content, not the method of transmission, that determines whether a record falls under the Federal Records Act. And email records covered by act must be sent on systems that meet the government’s archiving requirements. If the email system doesn’t retain the record for the period required by law, the sender must print and file a hard copy.
MJW,
Well, you’re switching Acts. I’d like to see some authority for that claim. Horner didn’t mention it. Which would be unusual restraint.
SteveF (Comment #84145) —
> An absolutely astounding thread.
Yep.
Texas criminal defense lawyer “Racehorse” Haynes has garnered a lot of fame by getting obviously-guilty clients off the hook. Here’s a quote.
Here’s a link to an amusing Say Anything thread at ClimateAudit.org, on the subject of my favorite
fourtwo varvedproxiesdata series.Nick
I advise you just go back to the top of the thread and read the answers to the very similar questions the last time you asked them. If you don’t understand what’s been alleged by now, I’m not going to waste more time trying to point you to the various documents nor try to get your reading comprehension button to turn “on” as you read them. I’m also not going to try to remind you of the difference between (one example of a group) as in (apples are an example of fruits) yet again.
Lucia,
I don’t believe I have asked such questions before. But there’s a specific one there. You said
“Where in the world does “the confidential author forum†come from?”
and I said it’s the ipcc back-channel of your title. You seem to dispute this, saying the section I quoted clearly describing this is merely an example. So OK, what is that IPCC back-channel if not the author forum?
Re: Nick Stokes (Comment #84147)
Wow, Nick. The Supreme Court? Really??
Why stop there? Why not compare to the IPCC to the Vatican? After all, its followers already consider it infallible, and some, like our friend bugs, seem to hang on their every pronouncement with near-religious rapture.
In fact, the Catholic Church (to which I happen to belong; obligatory disclosure here) may be an excellent example to ponder. Tells us, Nick, as objectively as you can: given its recent history, would you say (in general terms, leaving quibbling over details for later) that such an organization needs more transparency, or less transparency?
re: AMac (Comment #84153)
That was priceless Amac. The only thing missing from Haynes’s quote is a rhetorical question asking where we all were when George Bush’s dog bit so and so.
Julio, I’m enquiring about the issue. All organisations have provision for people who have to produce important written documents to be able to have confidential discussions while they sort things out. The SC is a very big and obvious example. So why would it be right for the SC and wrong for the IPCC? Or do you think SC discussions should be open to FOI? They are taxpayer funded after all.
Of course Nick is never, ever selective about the points he wants to argue is he?
Nick:
Of course some things have to be confidential. Jury deliberations, for example.
I do not see an obvious need for Supreme Court deliberations to be confidential. After all (unlike with a jury) everybody already knows who the Justices are and, generally speaking, which way they lean; and, at the end of the day, everybody is going to know which way each one of them voted, and (if they read the opinions and dissents, which are public) why.
In fact, the more I think about it, the more it seems to me that the Supreme Court is already more transparent than the IPCC.
Your turn. Given recent events, do you think that the IPCC, generally speaking, would be better served by more or less transparency?
There is a huge difference between the SC and the IPCC. The SC’s output is always opinion . The IPCC is supposedly representing objective science, therefore the demands on it are different.
Andrew
Nick, this may help you to understand what is expected under the Federal Records Act.
“WHAT ARE FEDERAL RECORDS?
By law Federal records are
all documentary materials including:
– letters
– memorandums
– completed forms
– statistical and narrative reports
– graphics
– photographs
– audio and video recordings
– maps
– architectural, engineering, and other drawings
regardless of physical forms including:
– photographic prints and negatives
– motion picture film
-tape recordings
– electronic records
made or received by an agency of the U.S. Government under Federal law or in connection with the transaction of public business, and
preserved or appropriate for preservation as evidence of agency functions, organization, and activities or because of the value of the information they contain (44 U.S.C. 3301).
Each agency is responsible for determining if the materials it creates meet this definition of a record. Agencies need to ensure that they create and maintain records that contain a full accounting of their organization, functions, policies, and activities. Agencies also need to ensure that their records are complete and contain information needed to protect the rights of the Government and of those directly affected by Government activities. (See 44 U.S.C. 3101.)
Paper records may be originals or copies, such as file copies of outgoing correspondence or copies forwarded for action. Multiple copies of the same document may each be a record if each serves a separate administrative purpose and if they are kept in separate filing or recordkeeping systems. Moreover, if electronically created records are maintained in paper recordkeeping systems, the information necessary for a complete record must be printed. Contact your agency’s records officer for further guidance.
Extra copies, such as distribution copies, stock copies, and copies maintained for convenience of reference, are not Federal records. In addition, when a record exists in multiple formats, such as in paper and electronic form, then generally both the paper and the electronic copies are considered distinct records.”
So, if Susan Solomon types an email to the IPCC while she is being paid by the US taxpayer, she has created a record that is expected to be preserved as evidence of an agency function. If she does not preserve the record, then she is in violation of the Federal Records Act. If she does not provide access to the record under FOIA, then she is in violation of that Act.
Presumably, it would be possible for OSTP to comply with FOIA, while still having the information they have provided show that they were in violation of the Records Act. Certainly, they have motivation not to comply with FOIA, but they don’t have that right. An agency also can’t just say, “oh, we don’t hold that document,” without providing justification that complies with the Records Act (Federal Retention Schedules, Copyright law, etc.).
If IPCC expects to keep its operations secret from the US taxpayer, then they’d better stop using our paid employees.
Nick is struggling. Masochist?
Nick
You have been asking similar questions about the substance of the allegations in Nick Stokes (Comment #83978) and similar questions about the title in Nick Stokes (Comment #83993) .
Is there any way of getting this thread on tract to discuss the degree of transparency in communications that is required by the IPCC in constructing its reports on climate change and why? I find it rather silly and counterproductive to use examples of the secrecies that other government bodies use or attempt to impose as a criterion for what should be expected and required of the IPCC. Separate discussions of those bodies could reveal that they are indeed wrong in the secrecy used or that their functions are so unrelated to what the IPCC is charged to make the comparison worthless.
Nick Stokes it is correct when he says that the IPCC can be an excellent source of published material and discussions of that material regarding climate change. Unfortunately that material is aimed at presenting the case for immediate AGW mitigation and while it provides “good” information for making that case it leaves out the countervailing evidence or pays it short shrift. The thinking observers can use the IPCC as the best arguments for immediate AGW mitigation, but must do their own researching to obtain a more complete picture. Blog discussions have been helpful in this process.
I suspect if one were enamored by the climate science consensus on the issue of climate change and the scientists involved and had full faith in their findings as presented by the IPCC, and additionally thought the case for AGW mitigation was closed at this point, and further saw nothing detrimental occurring from mitigation by government bodies, they might not see the need for transparency or any attempts to acknowledge the advocacy positions of the involved scientists.
I do not think that it is productive to discuss the needs for transparency or the prevailing rules for transparency with the enamored ones, and, in fact I find those arguments/discussions counter-productive – as they miss the basic points so often. I judge that the enamored ones see the IPCC as a sophisticated cheerleading squad rooting for the home team and a team that represents the truth about AGW and a foregone conclusion about mitigation.
Nick
I’m pretty sure all briefs t filed as input to SC decisions– including those by the Justice department or any agency– are available to the public. Court sessions and arguments are open and covered by the media.
All SCOTUS decisions output and communicated to government agencies and their employees are made public.
Seems to me saying that requiring output from government agencies and/or its employees used as input to IPCC decisions and all communications from the IPCC to an agency and/or its empolyees is imposing the same standard on communications as we apply to SCOTUS. Both SCOTUS and the IPCC have a higher degree of privacy as long as the communications stay strictly inside SCOTUS or the IPCC.
Mind you, SCOTUS doesn’t organize itself in a silly way where they have plaintiffs or defending attorney’s pretend to be “working for” SCOTUS when filing briefs. But that doesn’t mean we are imposing any different principle on the IPCC than on SCOTUS. It just means that the IPCC structure as devised by the UN creates a tension between the requirement that our government agencies provide the level of transparency required by the public and the IPCC’s desire for a higher level of opacity.
Tamara,
I’ve been presented with endless accounts of what a record is. Then people, and I think you’re doing this, just jump to a claim that in these circumstances a record should be made and kept, indefinitely.
FOIA does not say anything about what records should be kept, and the agencies would not have to justify their record-keeping as part of a FOI hearing. That just focusses on what they have. People have recently raised the Federal Records Act. I’m sceptical of much that I’ve heard said there, but I’m not going to try to chase that one down
julio #84160
“I do not see an obvious need for Supreme Court deliberations to be confidential.”
Well, that’s the way they want it, and I’m fine with that. I just don’t see why people are appalled when the IPCC needs a similar off-line discussion. In fact their need is greater, because the authors are widely scattered, and probably don’t know each other very well.
I think the IPCC has to juggle a lot of requirements. They are subject to a level of science review, a level of review by governments. They come under very intrusive scrutiny. I think a wish for a period where authors can get a doc together before that scrutiny starts is very reasonable.
Nick Stokes:
The FOIA requires a wide range of government records be available to the public, the Federal Records Act requires those records to be preserved so they can me made available. Without the FRA, the FOIA is almost meaningless.
I’m not sure which particular claim you’re referring to, so let’s consider them all. For reference, see NARA Bulletin 2011-03, NARA Code of Federal Regulations – 36 CFR 1236 and Armstrong v. Executive Office of President 1 F. 3d 1274 (D.C. Cir., 1993).
NARA bulletin:
Armstrong:
Armstrong:
Note “alieneation” means removing or giving up access to a record. By sending a record she creates to the IPCC without maintaining a copy, Solomon would violate that provision.
36 CFR 1236.22(5)(b):
36 CFR 1236.24:
Furthermore, Armstrong held that a paper copy is only acceptable if it preserves all the information in the email, including the sender, receivers, and the time it was sent.
With the CEI initiative via FOIA request to the OSTP, an investigation has started into whether the IPCC has formulated communication policies with the intent to evade FOIA requests by US citizens for information on US government employees supporting the IPCC.
We can and should discuss that initiative now and as it plays out because we need to know if the current legalities and policies obstruct or aid US citizens in knowing 100% of the IPCC processes (including predecisional) in situ, in process and in real time. Given the global and potentially irretrievable consequences of the IPCC decisions in assessing the earth’s climate system, it is an un-negotiable requirement to know that 100% for me as a US citizen.
But, for me the more important issue is why would anyone argue that absolutely complete public monitoring would harm anything wrt to the IPCC’s formal official mission? What is the reason to argue for opaque IPCC processes except to protect some informal/unofficial IPCC mission to manage the science behind the scenes? That is what I would like to focus on. NOTE: I am for absolute monitoring of the IPCC processes (including predecisional).
If 100% monitoring of the IPCC slows it down significantly, it is to the better so what is going on can be more effectively digested. If 100% monitoring does cost significantly more, then it is justifiable given the importance of the IPCC’s official mission. But I note increased costs could easily be made up for it by stopping many of the frequent meetings around the world and instead, since this is the 21st century, have increase electronic meetings.
John
Given your position on these matters I have little hope for an answer on this question, but here goes, Nick Stokes. A very critical aspect of the recent IPCC reports was the emphasis on presenting the predictions and evidence for climate change past, present and future in a manner that would appear to be less subjective and more objective. There was an IPCC introduction that gave the levels based on objective terms for uncertainty attached to the reports findings. Additionally the introduction stated that each group would be responsible for assigning the levels of uncertainty for the evidence presented and that each group was responsible for documenting how those levels were arrived at.
Do you judge that the process used by each group in arriving at these levels of uncertainty should be revealed to the reading public? Yes or no with a reasoned explanation for your answer.
For anyone who might still hold out hope that communication between an employee of a government agency and the IPCC would qualify for exemption from the FOAI by analogy to Exemption 5, the deliberative process privilege, I suggest you read the Supreme Court’s unanimous decision in
Department of Interior v. Klamath Water Users Protective Assn., 532 U.S. 1 (2001).
Pay attention to the final paragraphs:
In other words, the fact that the disclosure is detrimental to the government agency or the outside organization is immaterial. Records are exempt from disclosure only if the statutory text provides a clear exemption.
For those who hope some other exemption might apply, here are the nine exemptions provided by law:
5 U.S.C. 552(b)(1): National security classified information.5 U.S.C. 552(b)(2): Related solely to the internal personnel rules and practices of an agency.
5 U.S.C. 552(b)(3): Information specifically exempted from disclosure by statute.
5 U.S.C. 552(b)(4): Trade secrets and commercial or financial information obtained from a person that is privileged or confidential.
5 U.S.C. 552(b)(5): Inter- or intra- agency memoranda protected by either the deliberative process privilege or the attorney work-product privileges.
5 U.S.C. 552(b)(6): Personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
5 U.S.C. 552(b)(7): Records or information compiled for law enforcement purposes, to the extent that the production of these records could:
(b)(7)(A) could reasonably be expected to interfere with enforcement proceedings;
(b)(7)(B) would deprive a person of a right to a fair trial or an impartial adjudication;
(b)(7)(C) could reasonably be expected to constitute an unwarranted invasion of personal privacy;
(b)(7)(D) could reasonably be expected to disclose the identity of and/or information provided by a confidential source;
(b)(7)(E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions; or,
(b)(7)(F) could reasonably be expected to endanger the life or physical safety of any individual.
5 U.S.C. 552(b)(8): Information relating to the supervision of financial institutions.
5 U.S.C. 552(b)(9): Geological and geophysical information and data, including maps, concerning wells.
The IG report I referred to earlier mentions that there was no confidentiality agreement between the NOAA employees and the IPCC. I don’t see why that would matter, as there’s no exemption for confidential material except for “trade secrets and commercial or financial information obtained from a person that is privileged or confidential.”
Re: MJW (Oct 20 14:49) &(Oct 20 18:11) —
Thanks for taking the trouble to locate, format, and reference those regulations and decisions on FOIA.
For once, the law is quite clear on what is required, and the requirements themselves are reasonable and advance the public good.
Whether the letter and spirit will be followed is, of course, another question.
I looked in vain for the “AMac’s 3-P Rule Exemption,” which states that FOIA only applies to people, organizations, and causes that we don’t like. It must be in there somewhere.
Kenneth #84203,
I think they should be documented in the normal scientific way, with a proper and convincing argument. I don’t think a chronologue of who said what when along the way is helpful.
If you’re really hanging out to hear a word of criticism of the IPCC (and find there isn’t enough here) then yes, I don’t like their use of numbers to express very high confidence etc. There is often pressure on quantitative people to do that, and personally I have always resisted.
It is inherently subjective. But I don’t think scrutinizing the discussions would ameliorate that. However, I expect you will find discussion in the Review stages. Have you looked there?
Thanks for the kind words, AMac.
Let me add to my recent comment some additional support for my statement: “If the email system doesn’t retain the record for the period required by law, the sender must print and file a hard copy.”
From the DOJ archive:
That’s actually the statement I had in mind when I made the original comment, but I couldn’t locate it at the time I replied.
Also, in discussing confidentiality and the FOIA, how could I forget FCC v. AT&T, Inc., 562 U.S. ___ (2011)? The Supreme Court unanimously rejected the notion that corporations are shielded from FOIA disclosures by privacy interests that go beyond “trade secrets and commercial or financial information.â€
MJW,
Appreciate the legal info and history of Exemption 5.
As AMac says it will be interesting if the spirit of the law is following by the CEI and OSTP to get the info.
John
“It is inherently subjective. But I don’t think scrutinizing the discussions would ameliorate that. However, I expect you will find discussion in the Review stages. Have you looked there?”
Nick, I have looked in all possible places for how the probabilities placed on the evidence and predictions reported by the individual groups was formulated – without success. I have asked at a number of blogs – without success, and, of course, I queried the IPCC directly – without success.
To one who is a skeptical in these matters, the fact that the IPCC obviously was attempting to sell a seemingly more objective view of these probabilities, and no doubt to the more skeptical audience, I find the lack of making the documentation, that the IPCC stated in the introduction was required, public rather contradictory. This is not about scrutinizing any discussion, but rather providing documentation in finished form that was used as a basis for reporting the group’s probabilities. Was it a show of hands by the group participants on a probability presented by a leader, was it an average of the probabilities offered by all the participants, was it from some published document of “expert opinion” or did a leader put it in the report and assume the review process would comment on it?
The example, I present here, bears heavily on the question of transparency, and I notice that while you comment on the value of the process used, you did not say anything about the lack of transparency for this specific issue.
MJW:
Pretty thorough. Thank you.
It seems to pretty clear that FOI requirements apply to the extent that US government employees/US government email servers are involved, as in this instance.
It is not clear to me that there is an express FOI legal duty on the IPCC itself apart from any involvement with individuals or entities whose communications are subject to such requirements. What law applies to the IPCC itself?
There ought to be such FOI accountability, certainly. It ought to be a condition of its funding. However that kind of accountability would be contrary to the culture of the UN. Left to their own devices, UN agencies and members are as likely to conform to FOI accountability as they are to pay NYC for parking violations.
Being asked to rely on the ‘review process’ as a cure-all in a setting which can be rigged administratively in private is naive (and an obvious failure in the case of the IPCC). I agree with those who say the IPCC should be disbanded and rebuilt from scratch with lessons learned if rebuilt at all.
Kenneth
“Nick, I have looked in all possible places for how the probabilities placed on the evidence and predictions reported by the individual groups was formulated – without success. I have asked at a number of blogs – without success, and, of course, I queried the IPCC directly – without success.”
There is one case under review now on how the probabilities surrounding the sensitivity numbers were mis handled. Its been referred to a group to look at, in private, and they will report back.. See Judith’s blog.
I believe the objection was raised by one of the reviewers and waved off.
Seeing that sensitivity is the important question, it strikes me as “interesting” that this issue should be handled behind closed doors.
And the person who raised the issue and who is best able to speak to the concerns is of course not invited to speak
George Tobin,
I support the idea to replace the IPCC with a more objectively nonpolitical assessment vehicle. I suggest the replacement should be centered in the private university venue; with public universities in a supportive role because, after all, they are public (gov’t) influenced institutions. The new assessment vehicle should report directly to the university community and simultaneously to the public; government would be informed via public because keeping arm’s length between the assessment vehicle and government is prudent.
Your point suggesting there should be a lessons learned about the IPCC has merit. That is why instead of disbanding the IPCC immediately, I suggest first postponing the AR5 activities and keeping everybody at the IPCC in place for an extremely comprehensive and critical lessons learned/audit. When those are done then disband the IPCC prior to AR5. The lessons learned/audit results can be used as a precautionary tale for the new assessment vehicle. Also, I would think that there would need to be some restriction on transfer of current IPCC staff to any new assessment vehicle.
Injecting such ideas into the internet may have interesting implications. : )
John
Nick
This is not something that is even possible given that the UN is a political body and the IPCC process is, to some extent, political.
The normal scientific process of argument is that many, many people each present their individual arguments in poster sessions,conference presentations, conference discussions and papers , and many many people each individual sift through what they think and stuff filters up. The process is not for a committee or panel to go through and create a compilation providing their own “guidance” of what one is to believe under the imprimature of a political body like the UN.
George Tobin:
I’m quite certain the IPCC has no independent legal duty under the FOIA.
MJW
I think this is correct. The issue is what is required of gov’t agencies.
With FOIA the issue is:
If a person working at government agency XYZ covered by FOIA does work for external agency A that
1) the administration of agency XYZ encourages and expects the to do as part of their job,
2) which agency XYZ clearly encourages by paying for travel to foreign coyntries when that is required to support
3) which agency’s PR publiclly congratulates it’s employees for doing work for agency A
4) the work by XYZ employee is done on XYZ paid time, charged to XYZ, done using XYZ computers etc.
Do the electronic records escape FOI merely because the employee connects XYZ’s computer to agencies A system and sends and receives all communications through agency A email, or by connecting to A’s web page, forum etc.?
Also, if XYZ knows is so heavily involved with providing agency A all this effort, is XYZ required to take steps to make sure those communications pass through XYZ such that they are logged in a manner similar to communications going out by email, snail mail etc.
These are the sorts of things that are likely to come up in court should this go to court. (I’m betting it will.)
John Whitman:
It is not so much an issue of re-staffing as changing the organizational basis.
Before there were scientists appointed there was an existing political consensus that global warming was an issue that created an opportunity to extract money and power from developed nations for a major global economic and political reordering under the auspices of an international technocrat elite. The IPCC was created solely to provide evidentiary support for a pre-existing political goal.
I will stipulate that the individual scientists have worked in good faith but selection of the scientists, documents, conclusions or exclusions was always subject to a heavy thumb on the scale shaped by that pre-existing, politically framed Consensus. With respect to the summary materials, scientists were often expressly ignored.
So I don’t know how you could ever create a replacement IPCC, free of the fundamental flaw in the existing entity. Who would you trust to assemble it? If it isn’t pre-wired to deliver the desired outcome would it still get the political support and cover the IPCC gets now?
lucia:
MJW has nailed the legal issues. You are gilding the lily with thoughtful but extraneous additional points but the bottom line is that FOI applies to external agency communications unless there is a statutory exception. There does not appear to be an applicable exception here.
My earlier concern about the “pre-decisional” defense nonsense is that it looks like some people could be ginning up a comprehensive policy of IPCC secrecy around the concept that everything done prior to the issuance of a Report is not presumptively subject to any review even after the report is issued under the rubric of “pre-decisional” activities.
Lucia, as I mentioned in an earlier comment, I think all communication of a government agency employee with an outside organization is covered by the Federal Records Act. One requirement of the FRA is that employees using external electronic messaging systems “must ensure that Federal records sent or received on such systems are preserved in the appropriate agency recordkeeping system.”
George Tobin,
Interesting question. Thanks.
I see an assessment vehicle/process centered on private academia initiated as a spontaneous ‘grassroots’ movement precipitated in parallel with the IPCC’s continuous decline and dissolution. Basically, it would just be a voluntary association of existing universities. A consortium?
I think universities already do that kind of thing all the time. So, this isn’t reinventing the wheel.
This new assessment vehicle/process, in essence, is just a minor adaption of the ongoing voluntary academic association process . . . . the key adaptation is ensuring arm’s length from politically associated (government) bodies; without responsibility for reporting to the government. The national laboratories would also need arm’s length treatment for incorporating their research into the new assessment vehicle.
Now, because what I am suggesting is not creating much of anything outside of what exists in the general current experience & capability of university associations in many fields, it could be viewed that I am suggesting there be no actual replacement for the IPCC. I would agree whole heartedly with that view. : )
Limiting IPCC personnel would probably be a common voluntary suggestion due to concerns over IPCC legacy perceptions.
I do not wish to downplay the many fine public universities . . . key roles for them, but I suggest the guiding hand is more prudently the private institutions. I am trying here to be consistent with the arm’s length principle between science and politics (gov’t).
Interesting things can happen and probably will happen . . . .
John
“This is not something that is even possible given that the UN is a political body and the IPCC process is, to some extent, political.”
Lucia, so how should the IPCC handle the issue the various groups’ use of probability levels with regards to transparency of the groups’ methods used to determine that probability?
#84250 Lucia
“should this go to court. (I’m betting it will.)”
Lucia, I’m curious as to what kind of case you are thinking of. They have currently made an FOIA application, I think the response there will be straightforward. OSTP will provide the responsive documents they actually possess and control. It’s clear that that is their sole obligation under FOIA.
So people here are saying that there are more documents that they should have, because of FRA or some such. How can Horner mount a case on that? He has no authority to enforce FRA. He has no standing in the matter.
Nick-
I doubt what your opinion on what the law dictates is shared by CEI. I think they will act a based on their reading of the law.
Nick this is the third time, if I counted correctly, that you ignore that the reasons are two fold:
If they cannot provide the records that are shown to be required of FRA, then it is a violation of FRA.
Then if FRA is not met and FOIA cannot be met, then EOP is also not met.
1. You ignore the duty to comply with BOTH FRA and FOIA, and 2. if that is not enough, OBAMA has an EOP that includes providing resources not normally considered by the FOIA such as IPCC. It is not specific to IPCC but is specific on going beyond those covered by FOIA.
You provide a strawman about Chris Horner ability to mount a case for FRA. Nope, you are wrong, he does have a standing. If he shows that FOIA is not met because FRA is not met, he can go to court to sue that the FRA does apply to OSTP, as it is stated in the OMB guidelines to be required by executive agencies. It is not his standing, but rather whether a required agency is obeying the law. His standing is met by requesting and showing records that should be met by FOIA are not being provided FOR THE REASONS YOU STATE!! You are making his case. Lucia and others have either pointed it out or implied it.
THE COURTS HAVE STANDING IN THE CONSTITUTION to enforce the laws of the US. Did you not note that the FRA is in the CFR? He only has to sue to show non compliance. There is a duty to comply. The CFR spells out the measurements for complaince. The IPCC document quoted by Chris and the CEI, shows prima facia evidence that someone is conspiring to avoid FRA, and therefore the FOIA process. Further Chris and CEI are doing it correctly, if they show that a government employee on government time engaged in such, and the agency can/do not provide the information as required by FOIA, then it will be considered ipso facto that the FRA or FOIA or both have been violated.
That means they are in a win win situation with respect to US law. Details provided upthread in the CFR quoted sections.
Lucia is correct. With money this should go to the USSC because CEI is in a win win situation IF AND ONLY IF they can provide evidence that a violation occurred. As of right now, they only have prima facia evidence. But then again, that is enough to enable them to obtain records that could show that their allegations are indeed correct. Remember, these are allegations at present, but have prima facia evidence of being correct.
Nick Stokes:
On what do you base your claim that Horner lacks standing? I believe Armstrong v. Bush, 924 F.2d 282 (D.C. Cir. 1991) suggests otherwise:
See also the case I mentioned earlier, Armstrong v. Executive Office of the President, 1 F.3d 1274 (D.C. Cir. 1993), where the court required the EOP and NSC to revise their method of saving email records so the all the information about the record was preserved.
MJW 84282
MJW
Interesting bit here (VI) in the finding:
“Fourth, we hold that the FRA precludes direct private actions to require that agency staff comply with the agency’s recordkeeping guidelines. Instead, the APA authorizes the district court to entertain a properly pleaded claim that the Archivist or an agency head has breached the statutory duty to take enforcement action to prevent an agency official from destroying records in contravention of the agency’s recordkeeping guidelines or to recover records unlawfully removed from an agency.”
Precludes direct private actions? Hmm.. It seems the thing is that the case was a soecific action to prevent the destruction of some documents. That’s qiote a long way from a citizen demanding that documents be created.
NIck once again you are avoiding what the CFR and the courts have maintained which is that the executive branch must conduct its business in a manner that is lawful. With respect to Presedential records and agency records work conducted by an agency employee on agency pay must be recorded. If requested and are not exempted, produce these records. Further CEI may be setting up individuals or agencies for a charge of conspiracy.
http://www.lectlaw.com/def/c103.htmv CONSPIRACY
18 U.S.C. 371 makes it a separate Federal crime or offense for anyone to conspire or agree with someone else to do something which, if actually carried out, would amount to another Federal crime or offense. So, under this law, a ‘conspiracy’ is an agreement or a kind of ‘partnership’ in criminal purposes in which each member becomes the agent or partner of every other member.
Doesn’t conspiracy also require that some tangible step be taken to advance the object of the conspiracy; talk alone is insufficient?
Re: Nick Stokes (Oct 22 02:47),
Say Anything.
JustiaGate.
=========
j ferguson: Yes, but note. An example is to engage in a conspiracy to kill someone. The talk itself is criminal. It is a solicitation which is a tangible act. Though I daresay, it is much easier to get a conviction with money changing hands etc. In the CEI case, what they have presented, an inability of OSTP to produce documents would most probably be seen as something tangible. Not doing something required is a tangible wrt our discussion. An example, a friend of mine did not report a dangerous condition. He was fortunate to be a minor and got community service, rather than jail. The qualification is what are the laws and regulations.
MJW (Comment #84247)
October 21st, 2011 at 12:12 pm
@George Tobin
“I’m quite certain the IPCC has no independent legal duty under the FOIA”
————–
MJW & George Tobin,
Thank you for sharing your insights into the law pertinent to the CEI FOIA.
Are you suggesting there would be no legal remedy available via The International Court of Justice (commonly referred to as the World Court or ICJ) if a credible case can be made that the IPCC (created by the UN) evaded access to key processes involved in their central official mission to support the UNFCCC?
Regarding who could bring a case to ICJ , I surmise it cannot just be a country’s citizen or citizen group. I assume a case would need to be brought by sovereign government(s).
John
Nick Stokes:
What that says is the court can’t directly order the staff to do something, but it can order the Archivist or agency head to require the staff to do something. You can see in Armstrong v. EOP that that’s exactly what happened.
It seems the thing is that the case was a specific action to prevent the destruction of some documents. That’s quite a long way from a citizen demanding that documents be created.
There is no demand that documents be created. There’s a demand that if records are created on an external system, those records must be retained in the agency’s recordkeeping system as required by the FRA. Let me quote once again the federal regulation that already requires it:
Let me also remind you once again that it’s the content, not the format, that determines whether something is a record that must be retained.
Nick: Stick to math! 🙂
John Whitman:
I have enough trouble commenting on U.S. law; I don’t have a clue about international law. I wouldn’t be surprised, though, that when applying international law to the deliberative process of an international organization, some sort of pre-decisional exemption to disclosure would exist (assuming there are FOI requirements in the first place).
MJW:
Go ahead and be surprised.
Individuals can’t bring actions before the ICJ and there is no legal basis to proceed on a FOI request anyway so there is no statutory need for exemptions.
As far as I know, no one involved with the IPCC has conspired to direct funds to relatives or raped any refugees so that would make it one of the UN’s more exemplary undertakings, further regulation of which would thus be a low priority.
George Tobin: Go ahead and be surprised.
That I wouldn’t be surprised if it were true does not necessarily imply I’d be surprised if it weren’t true. Neither would surprise me, as I am self-admittedly clueless when it comes to international law.
At the risk of giving this particular issue considerably more discussion than it merits, let me point out that in addition to my previous comment, what I said was:
So I was saying: If there are internationally-enforceable FOI requirements in the first place then I wouldn’t be surprised if there was a pre-decisional exemption. George Tobin tells us there can be no individually-enforceable FOI requirements in international courts (an interesting fact I didn’t know), which eliminates the IF part, rendering the THEN part inoperative.
MJW (Comment #84316)
October 22nd, 2011 at 2:59 pm
George Tobin (Comment #84307)
October 22nd, 2011 at 1:20 pm
————-
MJW & George Tobin,
Thanks for your thoughts on international law.
John
This thread’s been dormant for a few days, but I thought I’d add a link.
It will be especially comforting to the “No Worries!” commenters, who seem to see no point in getting bogged down in pesky procedural details. Which are all hypothetical, anyway, since established FOIA procedures are pretty good. And are sure to be followed, competently and in good faith, by all covered parties.
Mish Shedlock’s post is License to Lie:
This would be a tidy and excellent strategy for U.S. Government employees working on IPCC-related matters. Eat your heart out, University of East Anglia!
That strikes me as wrong in so many ways.
The beauty of FOIA is that it can get to everything in the official record that doesn’t have a specific exemption. People love to go after emails becaue they seem to be the juiciest meat. For anything that a federal agency does that involves a decision, there must be an administrative record of the decision. If something’s not in the case file, it cannot properly be used in considering a decision.
Federal agencies that get sued a lot have learned to dump everything into the admin record. That’s where the ill-considered emails may be, but it’s also where all the evidence resides in supporting the agency decision. I think this is a good way to deal with FOIA – not by trying to make everything inaccessible, but by conducting the agency business with full acknowledgement that FOIA will make almost everything available to anyone who wants to second guess the agency’s reasoning.
This DoJ proposal just stinks. It provides some agency with a free pass, as long as they can establish any tenuous connection to national security. And if the interested public doesn’t know the document exists, they can’t call BS on the agency for over-reaching.
“This thread’s been dormant for a few days, but I thought I’d add a link.”
I can’t help it either. It seems that after Horner has been getting you all wound up over the possibility that Dr Solomon might be sending emails on government time on an IPCC system wthout creating Federal records, it is now alleged that his colleague (and only licensed Va lawyer) on the ATI case, David Schnare, has been mounting the whole UVa case while being a full-time federal employee. And without the required authorization. I wonder how many Federal records he created?
From the linked UVa submission:
“It is clear from the letter sent by the EPA’s Senior Counsel for Ethics, see Aff. Exhibit 26 (EPA letter), that Dr. Schnare was a full-time attorney at the EPA throughout the course of this litigation until September 30, 2011, thet he was required to obtain written authorization for any outside legal activities, and that he failed to obtain such authorization. The EPA letter suggests Dr. Schnare may even have fabricated the memorandum attached to its letter.â€
Nick–
I don’t know. It’s fine with me if you make a FOIA request or look into this in anyway that is appropriate.
That said, I think you are overlooking an important issue:
1) Government employees doing government work o as part of their government employment should be creating goverenment records.
2) Government employees doing something on their own time should not be creating government records.
In the case of someone like Solomon, NOAA has been doing things like flying her to IPCC meetings, covering her time while she is there, describing her work on their web pages etc. Her work with the IPCC is assigned to her as part of her duties for NOAA. While she may be a workaholic who workds 120 hours a week, this doesn’t change the fact that involvement with the IPCC is part of the work NOAA pays her to do. That is, internal to NOAA, she is assigned the some work to support the IPCC.
In the case of Schnare, I doubt the EPA has assigned him to work on the ATI case. If there is a problem between Schnare and the EPA (and any other laws) the problem is that he might be moonlighting and that moontlighting needs to be disclosed. (I’m saying this hypothetically because I don’t actually know Schnare’s employment status or what the EPA rules are. But if he was an EPA employee, likely he needed to disclouse something.)
Still, even though Schnare may well have a problem with the EPA the nature of the problem is different from the difficulties of NOAA employees getting around FOIA by avoiding using the NOAA system when doing NOAA work.