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UK Whistleblower Legislation

November 21, 2009

Some actions by whistleblowers in the U.K. are protected under the U.K. Public Interest Disclosure Act which is summarized by Wikipedia as follows:

The scope of the Act extends to the raising of “genuine concerns about crime, civil offences (including negligence, breach of contract, breach of administrative law), miscarriage of justice, danger to health and safety or the environment and the cover up of any of these” and extends to all employees in almost all professions; some, such as the army, are excluded.
Protection in the event of infractions by employers is available through the industrial tribunal system; remedies include unlimited financial compensation and ordering companies to re-instate employees to their role.

The Act itself is online here.

A “protected disclosure” is defined in section 43A and has two parts – it has to be a “qualifying disclosure” and it has to be made in accordance with one of a number of criteria:

43A Meaning of “protected disclosure”
In this Act a “protected disclosure” means a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of sections 43C to 43H.

In order to be a “disclosure qualifying for protection”, a putative whistleblower would have to reasonably believe that the information met one of the following standards:

43B Disclosures qualifying for protection
(1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following—
(a) that a criminal offence has been committed, is being committed or is likely to be committed,
(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,
(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,
(d) that the health or safety of any individual has been, is being or is likely to be endangered,
(e) that the environment has been, is being or is likely to be damaged, or
(f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.

Even if the putative whistleblower reasonably believed the above, not every form of disclosure is protected. The most relevant clauses of protected disclosure seem to me to be the following:

43G Disclosure in other cases
(1) A qualifying disclosure is made in accordance with this section if—
(a) the worker makes the disclosure in good faith,
(b) he reasonably believes that the information disclosed, and any allegation contained in it, are substantially true,
(c) he does not make the disclosure for purposes of personal gain,
(d) any of the conditions in subsection (2) is met, and
(e) in all the circumstances of the case, it is reasonable for him to make the disclosure.
(2) The conditions referred to in subsection (1)(d) are—
(a) that, at the time he makes the disclosure, the worker reasonably believes that he will be subjected to a detriment by his employer if he makes a disclosure to his employer or in accordance with section 43F,
(b) that, in a case where no person is prescribed for the purposes of section 43F in relation to the relevant failure, the worker reasonably believes that it is likely that evidence relating to the relevant failure will be concealed or destroyed if he makes a disclosure to his employer, or
(c) that the worker has previously made a disclosure of substantially the same information—
(i) to his employer, or
(ii) in accordance with section 43F.
(3) In determining for the purposes of subsection (1)(e) whether it is reasonable for the worker to make the disclosure, regard shall be had, in particular, to—
(a) the identity of the person to whom the disclosure is made,
(b) the seriousness of the relevant failure,
(c) whether the relevant failure is continuing or is likely to occur in the future,
(d) whether the disclosure is made in breach of a duty of confidentiality owed by the employer to any other person,
(e) in a case falling within subsection (2)(c)(i) or (ii), any action which the employer or the person to whom the previous disclosure in accordance with section 43F was made has taken or might reasonably be expected to have taken as a result of the previous disclosure, and
(f) in a case falling within subsection (2)(c)(i), whether in making the disclosure to the employer the worker complied with any procedure whose use by him was authorised by the employer.
(4) For the purposes of this section a subsequent disclosure may be regarded as a disclosure of substantially the same information as that disclosed by a previous disclosure as mentioned in subsection (2)(c) even though the subsequent disclosure extends to information about action taken or not taken by any person as a result of the previous disclosure.

43H Disclosure of exceptionally serious failure
(1) A qualifying disclosure is made in accordance with this section if—
(a) the worker makes the disclosure in good faith,
(b) he reasonably believes that the information disclosed, and any allegation contained in it, are substantially true,
(c) he does not make the disclosure for purposes of personal gain,
(d) the relevant failure is of an exceptionally serious nature, and
(e) in all the circumstances of the case, it is reasonable for him to make the disclosure.
(2) In determining for the purposes of subsection (1)(e) whether it is reasonable for the worker to make the disclosure, regard shall be had, in particular, to the identity of the person to whom the disclosure is made.

As I noted in the prior post, it seems just as likely, if not more likely, that the leak comes from a whistleblower, rather than a hacker.

Obviously, any whistleblower who was caught and prosecuted would defend himself or herself under the above provisions of UK Whistleblower legislation. It’s pretty easy to see that the behavior of the Team would be put on trial. I doubt that the University would simply concede that the conditions of section 43B were met and then try to argue that the disclosure was excessive (thereby not finding a safe haven under 43G or 43H.)

I think that the University would realize that any such prosecution would turn into an embarrassing spectacle. Easier to blame it on Russian hackers.

76 Comments leave one →
  1. MattA permalink
    November 21, 2009 8:31 pm

    It makes logical sense that this is a whistleblower. Otherwise an informationdump of emails would include housekeeping. And as you noted in an earlier post the timing after the rejection of the FOI requests seems more than coincidental.

  2. BarryW permalink
    November 21, 2009 9:05 pm

    And the display of the emails by third parties is most likely covered in the US at least by the Supreme Court’s ruling in the Pentagon Papers in relation to prior restraint.

  3. Marvin permalink
    November 21, 2009 9:08 pm

    That online search site is GREAT!!! I love this one from “Phil”:

    From: Phil Jones
    To: mann@xxxxxxxxx.xxx
    Subject: Fwd: CCNet: PRESSURE GROWING ON CONTROVERSIAL RESEARCHER TO DISCLOSE SECRET DATA
    Date: Mon Feb 21 16:28:32 2005
    Cc: “raymond s. bradley” , “Malcolm Hughes”

    Mike, Ray and Malcolm,
    The skeptics seem to be building up a head of steam here ! Maybe we can use
    this to our advantage to get the series updated !
    Odd idea to update the proxies with satellite estimates of the lower troposphere
    rather than surface data !. Odder still that they don’t realise that Moberg et al used the
    Jones and Moberg updated series !
    Francis Zwiers is till onside. He said that PC1s produce hockey sticks. He stressed
    that the late 20th century is the warmest of the millennium, but Regaldo didn’t bother
    with that. Also ignored Francis’ comment about all the other series looking similar
    to MBH.
    The IPCC comes in for a lot of stick.
    Leave it to you to delete as appropriate !
    Cheers
    Phil
    PS I’m getting hassled by a couple of people to release the CRU station temperature data.
    Don’t any of you three tell anybody that the UK has a Freedom of Information Act !

  4. theduke permalink
    November 21, 2009 9:18 pm

    Seems to me that the Team is in no position to be going after anyone. UEA also would stand to lose a great deal in prestige with a months-long trial examining their dirty laundry. I predict the response will be, “It doesn’t matter. Time to move on.” But I could be wrong.

    Whoever the whistleblower is, if he ends up facing charges, I hope Steve and Anthony will help raise defense funds for him on their websites. I know I would contribute. This person(s?) will all of a sudden have a lot of friends around the world if he is charged.

  5. Chris K. permalink
    November 21, 2009 9:26 pm

    I looked over the U.K. FOI act, but couldn’t find the penalty for not complying (deleting e-mail.) The language said the person would be ‘in contempt’, but didn’t speak to what that would amount to in the real world.

    Anyone have some insight?

  6. ali baba permalink
    November 21, 2009 9:39 pm

    In order to be a “disclosure qualifying for protection”, a putative whistleblower would have to reasonably believe that the information met one of the following standards:

    (1) Dumping 60 MB of random email is consistent with the behavior of somone with no idea what he stole. (2) There is no probative evidence in the emails of legally objectionable behavior. (3) You should research your own legal jeopardy in this matter.

  7. MrPete permalink*
    November 21, 2009 9:45 pm

    ali baba,
    a) It’s quite clear these are not “random emails.” They relate very much to the topic at hand.
    b) Recognizing that the whistleblower is likely not a lawyer, do you think a reasonable lay person would say the admissions of evidence-destruction are of no value in a courtroom?
    c) This material was made public before any of these blogs began repeating various tidbits.

  8. Richard Henry Lee permalink
    November 21, 2009 9:51 pm

    Roy Spencer believes it might be an inside job:

    http://www.drroyspencer.com/

    I think there is a good chance that this was an inside job…either a disgruntled employee at CRU, or someone who is simply getting fed up with the politicization of the IPCC’s science and wanted to reveal some of the inner workings of the IPCC process. I’m sure that further revelations will arise in the coming days.

  9. kuhnkat permalink
    November 21, 2009 9:53 pm

    ali baba,

    It is YOUR statement that this 61mb is random data. As mentioned above, there is no e-mail that is NOT significant to one of several avenues of inquiry. No e-mails that are ONLY regular business or ONLY personal business.

    All of the data and documents also appear to be responsive. In other words, it looks more like a response to several FOIA requests that were denied!!!

    Who knows, maybe someone in the organisation was tasked with searching for, and collecting, responsive data and, when they found out the FOI request was not to be filled, decided to release it anyway!!!

  10. ali baba permalink
    November 21, 2009 9:57 pm

    PS I’m getting hassled by a couple of people to release the CRU station temperature data.
    Don’t any of you three tell anybody that the UK has a Freedom of Information Act !

    You want this to be an admission of refusing to comply with the act, but it means exactly what it says: that he doesn’t want to be hassled by people who’ll suppose the mere existence of the act constitutes permission to receive data that’s been embargoed by prior legal agreement. Mr. McIntyre can explain if you don’t udnerstand this. Phil Jones, like everyone else that you know, does not want to *needlessly* waste time on bureacratic procedures.

    There are quite a few emails in the archive describing efforts to release other data. Why don’t you quote those emails?

    This is not going to end well for CA and Watts.

  11. Dave Dardinger permalink
    November 21, 2009 10:13 pm

    “This is not going to end well for CA and Watts.”

    Don’t be silly. Steve did nothing wrong. At most he linked to the site which linked to the site with the zip file. What about you? You’re posting on a site related to a site which linked to the site which linked…..

  12. stevemcintyre permalink*
    November 21, 2009 10:29 pm

    CA has been down for most of the time since the news broke, if that’s what you mean.

  13. jcspe permalink
    November 21, 2009 11:02 pm

    Steve,

    I am insanely curious what it is like to be you right now. Have you had a chance to sort out your feelings or thoughts?

    Are you still laughing about some of the crazy ironies?

    With so many new avenues of curiousity now open, have you any idea where you want to follow up on any of this stuff, or is it a little overwhelming right now? (cloning yourself may be necessary at this point.)

  14. November 21, 2009 11:12 pm

    Ali Baba is a typical troll. “Won’t end well…” Is that a promise or a threat? Either way, ali baby, its not Anthony or Steve whom this will not end well for.

    Congress can’t touch the furriners, but Santer, being a santer1@llnl.gov type, has to hold higher standards (which he hasn’t, considering his multiple promises of bodily harm). While the democrats hold power for the next year, he’ll probably remain untouchable. But after 2010, it’ll be a new game, and he’ll probably end up in front of Congress. And he should be looking over his shoulder over the next year – he can’t be fired from Livermore for legitmate science. He could be disciplined for some of the comments seen in these emails…

  15. November 21, 2009 11:35 pm

    > Easier to blame it on Russian hackers

    Does anybody know if there is any Russian employee at CRU 8-)

  16. JEM permalink
    November 21, 2009 11:47 pm

    Oh, dear ali baba, please tell us why “this will not end well”?

    Please tell us what UEA, CRU, Her Majesty’s Govt can do that would not render this situation even more embarrassing for Mr Jones and his correspondents?

    We’re waiting.

  17. theduke permalink
    November 22, 2009 12:05 am

    ali Baba wrote: “Phil Jones, like everyone else that you know, does not want to *needlessly* waste time on bureacratic procedures.”

    Yes. The truth of that statement will come out in the trial, should it happen. If I were Phil Jones, given the statements in these emails, I wouldn’t hold out much hope that that position is defensible. I wouldn’t want to be his lawyer arguing that. It’s clear that they were denying SM the data precisely because he was so successful in exposing the problems with their data and the papers that made use of the data.

    If there is a whistleblower, and he is charged, this will not end up well for CRU and all those associated with them. Granted, that’s a prediction by someone mostly unfamiliar with British law, but my real position is that CRU and EAU will not even risk a trial. That is far more likely in my view.

    There may be occasions that they freely released other data, but that only makes their refusal to release the data that Steve was requesting even more suspicious. Does Phil Jones only release data to those who agree with him?

  18. thefordprefect permalink
    November 22, 2009 12:24 am

    Just for the record, and so people know the legality of computer hacking in th UK. Note that it says nothing about being ok if it exposes supposed baddies!:

    http://www.opsi.gov.uk/acts/acts1990/UKpga_19900018_en_1.htm

    1 Unauthorised access to computer material.
    (1) A person is guilty of an offence if-.
    (a) he causes a computer to perform any function with intent to secure access to any program or data held in any computer;.
    (b) the access he intends to secure is unauthorised; and .
    (c) he knows at the time when he causes the computer to perform the function that that is the case.
    (2) The intent a person has to have to commit an offence under this section need not be directed at-
    (a) any particular program or data;
    (b) a program or data of any particular kind; or .
    (c) a program or data held in any particular computer.
    (3) A person guilty of an offence under this section shall be liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale or to both
    4
    Territorial scope of offences under this Act .
    (1) Except as provided below in this section, it is immaterial for the purposes of any offence under section 1 or 3 above-
    (a) whether any act or other event proof of which is required for conviction of the offence occurred in the home country concerned; or .
    (b) whether the accused was in the home country concerned at the time of any such act or event.
    (2) Subject to subsection (3) below, in the case of such an offence at least one significant link with domestic jurisdiction must exist in the circumstances of the case for the offence to be committed.
    (3) There is no need for any such link to exist for the commission of an offence under section 1 above to be established in proof of an allegation to that effect in proceedings for an offence under section 2 above.
    (4) Subject to section 8 below, where-
    (a) any such link does in fact exist in the case of an offence under section 1 above; and .
    (b) commission of that offence is alleged in proceedings for an offence under section 2 above;
    9 British citizenship immaterial .
    (1) In any proceedings brought in England and Wales in respect of any offence to which this section applies it is immaterial to guilt whether or not the accused was a British citizen at the time of any act, omission or other event proof of which is required for conviction of the offence.
    (2) This section applies to the following offences-
    (a) any offence under this Act;
    (b) conspiracy to commit an offence under this Act;
    (c) any attempt to commit an offence under section 3 above; and
    (d) incitement to commit an offence under this Act.
    Extradition where Schedule 1 to the Extradition Act 1989 applies .The offences to which an Order in Council under section 2 of the [1870 c. 52.] Extradition Act 1870 can apply shall include-
    (a) offences under section 2 or 3 above;
    (b) any conspiracy to commit such an offence; and .
    (c) any attempt to commit an offence under section 3 above.
    17 Interpretation .
    (1) The following provisions of this section apply for the interpretation of this Act.
    (2) A person secures access to any program or data held in a computer if by causing a computer to perform any function he-
    (a) alters or erases the program or data;
    (b) copies or moves it to any storage medium other than that in which it is held or to a different location in the storage medium in which it is held;
    (c) uses it; or .
    (d) has it output from the computer in which it is held (whether by having it displayed or in any other manner);
    and references to access to a program or data (and to an intent to secure such access) shall be read accordingly

  19. Craigo permalink
    November 22, 2009 12:31 am

    A brief observation after reading some extracts:

    “Just because you are paranoia doesn’t mean SMc isn’t going to audit your results!”

  20. crosspatch permalink
    November 22, 2009 1:00 am

    Ali Baba,

    snip

    The person who originally facilitated the transfer of the data from CRU might be the subject of some investigation but the rest of us have done nothing wrong. We are simply reading and commenting on information found on the Internet.

    It is like someone taking a secret document and nailing it to a wall. That person would probably have something to answer for but people passing by the wall who read it and comment on it and discuss it have not done anything wrong.

    There are much more grave examples of this in history (e.g. Daniel Ellsberg and the “Pentagon Papers” and the publishing of them in the New York Times) where once the information is “out” it is public domain. It is a genie that can’t be put back into the bottle.

    I have seen nothing wrong in any of Steve’s postings or those of any of the comments. We are simply looking at information that was found on the Internet.
    snip

    Steve: Again I had absolutely zero to do with this and learned of it after other bloggers.

  21. ali baba permalink
    November 22, 2009 1:03 am

    People will see what barking mad fanatics too many of you are, bereft of srcuples, perspective, or sense. I hope Ben Santer’s emails in particular are circulated far and wide. They’ll be the final nail in the coffin of denialism.

    (snip – politics


    Dear Mr. Smith,

    Please do not lecture me on “good science and replicability”. Mr.
    McIntyre had access to all of the primary model and observational data
    necessary to replicate our results. Full replication of our results
    would have required Mr. McIntyre to invest time and effort. He was
    unwilling to do that.

    Our results were published in a peer-reviewed publication (the
    International Journal of Climatology). These results were fully
    available for “independent testing and replication by others”. Indeed, I
    note that David Douglass et al. performed such independent testing and
    replication in their 2007 International Journal of Climatology paper.

    Douglass et al. used the same primary climate model data that we
    employed. They did what Mr. McIntyre was unwilling to do – they
    independently calculated estimates of “synthetic” Microwave Sounding
    Unit (MSU) temperatures from climate model data. The Douglass et al.
    “synthetic” MSU temperatures are very similar to our own. The scientific
    differences between the Douglass et al. and Santer et al. results are
    primarily related to the different statistical tests that the two groups
    employed in their comparisons of models and observations. Demonstrably,
    the Douglass et al. statistical test contains several serious flaws,
    which led them to reach incorrect inferences regarding the level of
    agreement between modeled and observed temperature trends.

    Mr. McIntyre could easily have examined the appropriateness of the
    Douglass et al. statistical test and our statistical test with
    randomly-generated data (as we did in our paper). Mr. McIntyre chose not
    to do that. He preferred to portray himself as a victim of evil
    Government-funded scientists. A good conspiracy theory always sells well.

    Mr. Smith, you chose to take the extreme step of writing to LLNL and DOE
    management to complain about my “unresponsiveness” and my failure to
    provide data to Mr. McIntyre. You made your complaint on the basis of
    the information available on Mr. McIntyre’s blog. You did not understand
    – and still do not understand – that the primary model data used in our
    paper have always been freely available to any scientific researcher,
    and are currently being used by many hundreds of scientists around the
    world. Any competent climate scientist could perform full replication of
    our calculation of “synthetic” MSU temperatures – as Douglass et al.
    have already done.

    Your email to George Miller and Anna Palmisano was highly critical of my
    behavior in this matter. Your criticism was entirely unjustified, and
    damaging to my professional reputation. I therefore see no point in
    establishing a dialogue with you. Please do not communicate with me in
    the future. I do not give you permission to distribute this email or
    post it on Mr. McIntyre’s blog.

    Sincerely,

    Dr. Ben Santer.

    Truly an American hero.

    Steve: McKitrick and I submitted a comment on Santer 08 to IJS early in the year. For reasons that are unclear, CRU documents show that Phil Jones was involved in choosing the reviewers of our comment, who, predictably have obstructed the publication of results showing the incorrectness of key Santer results. When I catch my breath, I’m going to review these events,

    Please modify your language Readers are asked to avoid this sort of name calling and food fight

  22. Konrad permalink
    November 22, 2009 1:41 am

    I have a strong suspicion that this data is not a totally random selection. It looks like material that was intended to be deleted or moved off site in the face of a pending FOI request. If this is the case 34B would probably apply.

  23. ali baba permalink
    November 22, 2009 1:44 am

    (1) I could not care less about American politics, you snipped some snark aimed at at a wingnut fantasy upthread, which you did not elide.
    (2) Speaking of attempted obstruction — Rutherford et al (2005).
    (3) Are you saying your comment was not published precisely because it showed that Santer’s results were incorrect?

  24. Chris permalink
    November 22, 2009 2:33 am

    It sounds like Ali Baba is desperately trying to do damage control and in the process making some veiled threats, or perhaps overt threats.

    snip

  25. crosspatch permalink
    November 22, 2009 2:42 am

    “This is not going to end well for CA and Watts.”

    Can you explain what exactly you mean by that?

  26. David Holland permalink
    November 22, 2009 3:05 am

    The relevant legislation is regulation 19(1) of the Environmental Information Regulations 2004

  27. Jean Demesure permalink
    November 22, 2009 3:24 am

    If the whistleblower is sacked, he is entitled to legal protection for his ‘philosophical belief’ in NATURAL climate change, similar to the recent judgement in favor of Tim Nicholson in the UK.

  28. Ian permalink
    November 22, 2009 4:12 am

    It’s early days, and the story continues to develop. While the idea of an internal leak has some attractive features, I’ve not yet seen any strong evidence to support this notion. Indeed, there are some suggestions to the contrary – including the reports in some media that the breach occurred three or four days before the files were released, and the individuals involved initially attempted to post the material on the CRU’s own website. To me, that sounds more like classic “hacker” behavior. (Sorry, but in the welter of reading I don’t recall where I saw this – and yes, I need to save these things more assiduously, I know. Maybe someone else recalls the report?)

    At present, I don’t think anything is gained one way or the other in speculating on who effected the release of information – or, for that matter, their motives. The issues are: (1) whether the information is genuine (or, since we know that much of it is, whether there are any “spiked” materials included); (2) what does the information actually show (and here, I care less about the school boy antics and attitudes towards sceptic camp, and more about how that bunker mentality translated into individual or coordinated attempts to prevent/distort or disrupt the release of alternative views and theories on anthropogenic global warming, or to promote a position or view beyond what the evidence actually shows or proves); and (3) is there any material which undermines the actual data or the conclusions which have been reached, or published or promoted.

    I’ve seen much on the various websites which has dealt with the titillation of reading these emails, and the bad attitudes evinced by the “professional” community of scientists, whose work forms a significant component of the foundation upon which a major political / economic movement has been founded and is being pursued (most currently, of course, in Copenhagen). There are aspects of these exchanges which trench on their work, and reveal (in my view) (1) a bias and set of beliefs which undermines their independence and impartiality (and makes the role of individuals such as Mr. McIntyre a necessity); and (2) a willingness to subvert process to achieve their ends. Their pettiness is relevant only to the extent that it affects the substance of the debate; what they’ve said behind closed doors, whether about their “opponents” or their “colleagues”, is otherwise only of interest to gossip magazines.

    What I haven’t seen yet (and sadly, I lack the skills or training to take it on), is any assessment of the substantive data that also seems to have been released. Everyone has been reading the emails – what about the data that got released? Has anyone summarized (in general terms) what actually is there? Is it significant? Or is it all old stuff that’s already been seen? If there is a smoking gun, I suspect it will be found in the data (and yes, I agree some of the emails are indicative of significant problems with process – possibly ones which involve breaches of UK law – but there is relatively little of substance affecting the actual published works; certainly nothing beyond what has been rather clearly shown to be going on by Mr. McIntyre’s previous analyses).

    I shall continue to watch in interest as this unfolds – and I look forward to Climate Audit’s analyses of the data. If this blog stands out (and based on the concerns evident in those private exchanges between the members of the Team, it is clear that it does – even if Mr. McIntyre’s name never passes their lips in public), it is because it focuses on the data and analyzes the evidence. This, I trust, is a policy that will continue

  29. None permalink
    November 22, 2009 4:27 am

    It’s incredibly unlikely this is the result of a whistleblower.

    The fact is that the first occurance of this stuff was when someone tried to hack into RealClimate via CRU and post their “message” (where the “random stuff” quote originally comes from) along with a link to the files. Is that the action of a whistleblower ? No, it’s very much the action of publicity driven hackers. CRU themselves have said they became aware they had been hacked several days before this blew (and btw hacking of academic institutions is a very frequent occurence).

  30. Legallyblind permalink
    November 22, 2009 4:34 am

    This is reminiscent of some scientific abuse-of-public-grants cases–which is where the leverage lies–that got going in the States a few years ago. But those only got going once people started using the operative word, “fraud.” I’m not at all convinced that one will be able to find or prove fraud based on what I skimmed in the upload, but the use of that term and the finding of probable cause will get the legal system working on behalf of the truth. The release of the documents themselves will then become a footnote in the cascade of further information.

    Background reading, The Baltimore Case: A Trial of Politics, Science, and Character, by Daniel J. Kevles, 1998, W.W. Norton & Co., (London and New York). Don’t think that I am going to bootleg you a copy of that. It’s copyrighted!

  31. john wilbye permalink
    November 22, 2009 4:54 am

    Complaint lodged with the UK information commissioner

  32. Legallyblind permalink
    November 22, 2009 5:04 am

    Yes, and section 43b of the Public Interest Disclosure Act continues beyond SM’s quote above to say that, “(3)A disclosure of information is not a qualifying disclosure if the person making the disclosure commits an offence by making it.” So it seems that the hacker may yet be vulnerable on these two bases– if s/he is ever found and is within jurisdiction. I tend to agree with some others here that the politics of the situation will tend not to lead to prosecution. But who knows?

  33. Legallyblind permalink
    November 22, 2009 5:07 am

    I should have said that those cases got going, and were put more or less to rest, decades rather than years ago.

  34. Eyesapoppin' permalink
    November 22, 2009 5:40 am

    There are many more rich veins to be mined than the putative withholding of data. I particularly enjoyed the hacked exchanges about how best to pin the tail on the donkey, or rather, on the hockey stick.

    This is going to pan out over years– maybe long enough to see if AGW is really true. If it does come to litigation, then I would say that the skeptics ought to get organized. Their opponents, possibly constituting the IPCC itself, certainly are.

    And the skeptics they ought to adopt a serious tone about what they are ultimately about. These issues ultimately devolve to very serious matters of public policy, not just science policy, but about actions that can affect the economic and environmental welfare of the entire global population.

  35. dearieme permalink
    November 22, 2009 6:25 am

    I’ve cooled on the Russki idea. How about the Chinese?

  36. November 22, 2009 6:50 am

    Dave,

    To be clear, I was in the Upper Penninsula of Michigan when the link was left. I deleted it the moment I realized what it was and reinstated it after it was dead cause I was too slow to outrun the internet. Also, it was left on at least 1 other blog for sure.

    On another note, I think Steve’s right about prosecution. There are several key points which were made in multiple emials that would allow a reasonable person to conclude the actual release of the data was legal under the whistleblower law.

    Consider the collusion with government to break the law and block FOIA, deletion of emails to block evidence and several emails which point to intent to manipulate data.

    I don’t think the team wants a trial.

  37. Alex Heyworth permalink
    November 22, 2009 7:20 am

    Found the following advice to staff on the University of East Anglia website:

    Guidance for staff
    5 key facts that all staff should know about Freedom of Information

    * The Act gives everyone both in and outside UEA a right of access to ANY recorded information held by UEA
    * A request for information must be answered within 20 working days
    * If you receive a request for information which mentions FOI, is not information you routinely provide, is unusual, or you are unsure of, you should pass the request to your FOIA contact or the Information Policy and Compliance Manager
    * You should ensure that UEA records are well maintained and accessible to other staff, so that they can locate information needed to answer a request when you are not there
    * As all documents and emails could potentially be released under the Act, you should ensure that those you create are clear and professional

    Priceless! Particularly the last two points. Apparently Phil Jones has never read this advice, or perhaps he thought this applied only to lower forms of life.

  38. Peter S permalink
    November 22, 2009 7:29 am

    Of course, it could all be a honey trap.

    Release a bucket-load of ‘edgy’ emails and some code to clear the air before the most important summit in a decade. Slip in a few provocative fictitious ones (re: FOI refusals). Sail close to the wind for a week or so and then call in the lawyers, put a gagging order on the ‘offending’ websites… and announce it’s time to “move on” before jumping on the flight to Denmark.

  39. November 22, 2009 8:19 am

    Does anybody know if there is any Chinese employee at CRU 8-) 8-)

  40. November 22, 2009 9:09 am

    (CA appears to be recovered from the onslaught…)

  41. M Yoxon permalink
    November 22, 2009 9:35 am

    These are my thoughts exactly. Good post.

  42. Stacey permalink
    November 22, 2009 9:38 am

    Dear Mr McIntyre
    Your have always kept above the fray and your credible methods have been validated.

    The emails treat you with disdain but who would care about an insult from anyone who lacks integrity?

    FROM Unreal Climate
    38Jay says:
    20 November 2009 at 1:54 PM
    Again, I write to the moderator. What did I write that was so inflammatory that you would not post it? I have not attempted to stir anything up? I would like to know the truth. Thats all. The truth needs no moderation nor to be covered up. What is wrong with my saying that? Maybe you can post this and a response as I don’t see what could possibly be wrong with this post.

    My only questions now is…

    I hear a lot about the FOIA and data that was being withheld that is now lost or destroyed. Is there an explanation or a reference to that which would answer what I have been hearing on the other end?

    [Response: No data has been lost or destroyed. - gavin]

    Our Gav I told him to keep digging and what about the emails?
    He’s lost the plot he has stopped censoring posts or is this to show what a regular guy he his?

  43. Stewart permalink
    November 22, 2009 9:44 am

    In the context of scientific integrity, this is a great speech to read: http://www.lhup.edu/~DSIMANEK/cargocul.htm (Richard Feynman)

  44. Stacey permalink
    November 22, 2009 9:50 am

    Under FOI law no doubt there is a penalty for destroying information, however in UK law, the punishment for someone found guilty of conspiracy is often greater than the original offence?

  45. Eyesapoppin' permalink
    November 22, 2009 10:14 am

    I agree with Ian that what matters and will eventually transcend FOI and the ethics of hacking issues, as well as the prurient interest value regarding the all too human and messy process by which science, like sausage, gets made, will be the value of the science itself– and whether the scientific method was allowed full play, both inside and toward the “outsiders.” It’s going to take an organized and lengthy parsing of the substantive data revealed or referred to here to do that.

    What I hope will happen–also, eventually–is an impartial assessment of what have always seemed to me pretty glib manipulations by climatologists of a dizzying array of exotic statistical applications to shifting sets of data, many of which don’t seem to sit still for a picture, let alone always mean anything at all. I think some outside (non-climatologist) statisticians, as well as dendrologists, are going to have to be found to take an outsiders look at all this. With all due respect to the skeptical and non-skeptical climatologists visiting this site, I think this is too important an investigation to be left to you alone.

  46. P Gosselin permalink
    November 22, 2009 10:16 am

    The whistleblower ought to just step forward and say so. That would dispel the Russian hacker claim. If you’re gonna blow the whistle, then do it in the open. Certainly the whistleblower has the law on his/her side, and he/she didn’t reveal any sensitive national secrets. Indeed he/she released info that should be made available to the public under FOI.
    Talk about a mess. Jones has got to go.

  47. JEM permalink
    November 22, 2009 10:45 am

    Peter S – there’s a couple problems with that theory:

    a) A UK court isn’t going to have the reach to gag US, Canadian, Australian, etc. websites.

    b) Any attempt to bring this to US courts would likely be laughed at, and would in any case risk far greater disclosure of the Team’s methods (which some might term “conspiracy”, “misconduct”, etc.)

    c) The content of the email released thus far illustrates an intent to engage in illegal acts (most notably, obstruction of FOI requests and deletion of related information) and while I personally think that the authorities directly responsible – the UEA brass – are unlikely to do anything about that, they and Jones and the rest have to be hoping this whole thing just goes away before someone else forces their hand.

  48. Steve Fitzpatrick permalink
    November 22, 2009 11:17 am

    Most likely it is a whistle-blower. Probably somebody in the organization with a combination of network know-how and honest disagreement with the unscrupulous, deceptive, and perhaps illegal methods used by many well known climate scientists to control what climate research is allowed to see the light of day. Could even be an older climate scientist who figures he has nothing to lose by doing what is right.

    Even if this person is identified (and my guess is they will not be), I don’t see that UEA will push for prosecution, in part because reasonable people (including prosecutors) may well see grounds for protection under the UK whistle-blower law, and in part because any trial would be a circus (widely covered by the main stream press) where the horrible conduct of well known climate scientists would be on trial as much as the conduct of the whistle-blower. I don’t thing Dr. Jones wants to explain under oath why he asked people to erase email messages, or why he straight out lied about the “non-existence” of raw temperature data files.

  49. November 22, 2009 12:21 pm

    I personally have no doubt that these files were uploaded by someone who had authorized access to the servers there. And it certainly seems logical to think it’s a file prepared in response to Steve’s FOIA request.

    In case, however, it is not that, and even if it is, there’s one possibility to consider, which is that none of the messages or files is in there by accident or mistake. In other words, there may well be a specific reason that each of those emails and each of those files is in the folders.

    The folders obviously have been sorted. If they were sorted by an FOIA examiner then we can expect some fluff. If they were sorted by the whistleblower, he or she put each one in for a reason.

    Something to think about.

  50. Dude permalink
    November 22, 2009 12:24 pm

    And I am not a lawyer, so that is not legal advice, just something you may want to consider. Trying to help you out sir!

  51. Calvin Ball permalink
    November 22, 2009 12:36 pm

    Seems like we have two separate legal issues; 1, whether the leaker would qualify as a whistleblower, and 2, what are the discovery rules in British courts that would allow a defendant to turn this around into a trial against the prosecution (and CRU). It would be helpful to have an opinion from a British lawyer on #2; I understand the British rules aren’t as defense friendly as in the US. In the US (and probably Canada), this would be a slam dunk, because this could be turned around. In the UK, I’m not so sure.

  52. crosspatch permalink
    November 22, 2009 1:50 pm

    Another interesting piece of data is the choice of location used to post the notice that the files were on the server.

    Jeff Id’s blog being the chosen location for the announcement would seem to be a clue that it was not some random hacker but someone who has been following debate on the subject.

  53. AKD permalink
    November 22, 2009 2:02 pm

    Jeff Id’s blog was not the chosen location. It was posted to a number of blogs, and according to information above, the first attempt to release the info was via hijacking Real Climate.

  54. November 22, 2009 2:08 pm

    A few points:
    1. Regardless of UK legislation there is little protection for whistleblowers. A teacher and a care worker who exposed, respectively, lack of school discipline and apalling care of the elderly lost both their jobs and the registration which would enable to resume their professions.
    2. Whoever provided the files, hacker or whistleblower, had access to the CRU email system for long enough to carefully select files which would interest CA readers. The difference in number between the first and last files represents 100,00 per day – not unreasonable for a university with 14,000 students and 2,500staff.
    3. The other files also contain some potential nuggets.
    – The file sf2note.txt has a message from Hantemirov.
    – A folder called ‘briffa-treering-external/Yamal’ has 840 *.rw files
    – There is a folder called CRUTS. In there are several *.f90 files and a _READ_ME.txt file which starts “Procedure for updating the databases underlying the CRU high-resolution grids”.

  55. Calvin Ball permalink
    November 22, 2009 2:10 pm

    I suspect that Jeff’s blog was chosen because he said that he was going to be out hunting.

  56. crosspatch permalink
    November 22, 2009 2:46 pm

    “Jeff Id’s blog was not the chosen location. It was posted to a number of blogs”

    Ok, I wasn’t aware of that. Every report I saw on other sites mentioned the posting at his site. Even so, some of the blogs aren’t well known to very many outside those who follow climate debate. So whoever it was, it was someone who has been following the debate and knew what they had. It wasn’t some kid in a l33t irc channel hacking around for pwn4g3 points.

  57. David Holland permalink
    November 22, 2009 2:47 pm

    Perhaps someone missed a payment?

  58. Michael Jennings permalink
    November 22, 2009 2:54 pm

    What Tom Fuller said about the possible 2 alternatives makes sense to me. Either it was done to minimize damage anticipated by a forthcoming FOIA or as a warning shot by the whistleblower for the offending scientists to clean up their acts or more will follow

  59. David Holland permalink
    November 22, 2009 2:59 pm

    Perhaps they left the front door open again?
    With their record on security they would have to prove it was a break in.

    Also everything I have seen so far is covered by ICO Decision Notice FER0085500, which includes the statement:

    “The Commissioner considers that the phrase “any information… on…” should be interpreted widely and that this is in line with the purpose expressed in the first recital of the Council Directive 2003/4/EC. Therefore ‘any information on’ will usually include information concerning, about or relating to a particular measure, activity, or factor in question. In other words information that would inform the public about the matter under consideration and would therefore facilitate effective participation by the public in environmental decision making is likely to be environmental information. This approach was informed by the Information Tribunal case Ofcom v Information Commissioner and T-Mobile UK Limited (EA/2006/0078).”

  60. David Holland permalink
    November 22, 2009 3:09 pm

    Has to be an indictable offence now.
    Its a shame. A a few years ago we could have locked em up for years!

  61. November 22, 2009 3:09 pm

    You got it right. There is a cute little thing called “Discovery” which would likely give access to all other emails, at least.

  62. November 22, 2009 3:11 pm

    Test

  63. crosspatch permalink
    November 22, 2009 3:44 pm

    “The difference in number between the first and last files represents 100,00 per day”

    Those numbers on the email are a timestamp in epoch time.

    This might help explain it to you.

  64. Paul Coppin permalink
    November 22, 2009 3:52 pm

    A comment made on the original thread at WUWT, by John P. Baker, is worth contemplating:

    ” …

    Since the information has come into public view, it is admissible in United States Courts, and the scientists at the [Hadley, sic] Climate Research Unit, and their various counterparts across the world, identifiable through the emails, can likely be charged in United States Federal Courts, for various civil and criminal violations, including conspiracy and fraud.

    Various industries, which have been under constant attack for years as a consequence of what appears to be fraudulent data, surreptitiously manipulated as part of an ongoing conspiracy by the scientists at the [Hadley,sic] Climate Research Unit, may be able to bring civil actions against both the [Hadley, sic] Climate Research Unit and against various individuals working there.

    I would argue that this is not over. It has barely begun.

    The consequences to some of the ivory tower eggheads are likely to be distinctly unpleasant.”

    If Mr. Baker is who I think he is, there might well be some credibility to his observation.

    Its also worth re-iterating that Hadley and CRU are different organizations, and Hadley is not implicated in any of this at this time.

  65. Slartibartfast permalink
    November 22, 2009 4:02 pm

    bereft of srcuples

    Yes, but we do try to comment in language resembling English, and to provide examples when making wild accusations.

    I hope Ben Santer’s emails in particular are circulated far and wide.

    Oh. Ben Santer’s emails, like this one:

    looked at some of the stuff on the Climate Audit web site. I’d really like to talk to a few of these “Auditors” in a dark alley. They seem to have no understanding of how science is actually done – no appreciation of the fact that uncertainty is an integral part of what we do. Once again, just let me know how I can help….

    Lovely. I hope that gets circulated far and wide, too.

  66. Denny permalink
    November 22, 2009 4:43 pm

    Here is the posting from Jeff ID’s the day He realized after coming back from “Deer Hunting” in the Upper Peninsula, of Michigan. This is the upper portion!

    « Crazy Quotes From Under the Science CloakOk it’s blown wide open »Leaked FOIA files 62 mb of gold
    Posted by Jeff Id on November 19, 2009

    This is the biggest news ever broken here. The first thing I have to say is that I have no connection to the source of these files. It was left as a link on my blog while I was hunting for cloaked deers (fruitlessly) in the Upper Penninsula. These files are real IMO but they cannot be one hundred percent verified as such. How can we be certain but IMO, real. They were potentially scraped from multiple computers in my opinion by a hacker or an insider involved in some of the endless FOIA requests.

    I’ll say this delicately – this person risked one f..k of a lot to show us this data.

    I need some legal advice regarding the files received today. I’ve verified that the data seems to be true, simply due to the volume of it and knowing the issues – currently the link is offline, I took it down the minute I realized what it contained. I need to understand the legal ramifications of making some of the emails public. In the meantime, a summary of the 62 MB of data is – personal email correspondences between some of the major players Santer, Briffa, Mann, Osborne, Wahl. Data and code, the data SteveM and I will enjoy but I can’t load CA now. The code or a version of it for HadCRUT was released also. The tone of the emails is quite interesting Steve McIntyre is the focus of much of them but there are quite a few references to obstruction and making things difficult for the ’skeptics’. There are also budgetary items and grant monies- you wouldn’t believe how much money these boys play with.

    There are several comments about scientists wanting to hide their environmentalist views to promote the best results. Also, some about people being happy with the death of skeptics as well as a lot of rubbish about the latest Yamal results at CA.

    What I need to know is what are my legal obligations as to posting a link to this file and what is allowed to be shown from it. In the meantime I see Anthony at WUWT who has more experience than me with media has posted several emails, so in this case there is one particular letter which deserves to see the light of day because of it’s amazing nature.

    One of the biggest criticisms of skeptics is non-publication. I think we can put an end to that charade here and now. If someone can find me a lawyer to let this loose I’ll add the rest of the names but let’s just say it’s our favorite ends justify the means group.
    [Unquote]

    Then later that day Jeff posted this:

    Ok it’s blown wide open
    Posted by Jeff Id on November 19, 2009

    I’ve been advised that I don’t need to hide the link. Since this is already being downloaded everywhere, check out the comment at this post:

    FOIA said
    November 17, 2009 at 9:57 pm e

    We feel that climate science is, in the current situation, too important to be kept under wraps.

    We hereby release a random selection of correspondence, code, and documents.
    Hopefully it will give some insight into the science and the people behind it.

  67. Hoi Polloi permalink
    November 22, 2009 4:52 pm

    Re Russian hackers, let’s go back to where it all began. This was the text that accompanied the link:

    “We feel that climate science is, in the current situation, too important to be kept under wraps.

    We hereby release a random selection of correspondence, code, and documents.
    Hopefully it will give some insight into the science and the people behind it.”

    I very much doubt this is a Russian hacker, who are usually more interested in credit card info. I stay with my first impression; it’s an insider (not necessarily a Team member, who got hold of the emails and also in my impression damn well knows the consequences of his/her actions.

    The Team might proceed with legal action but I don’t think that will do any good, the genie is already out of the bottle and more manure might be tossed up by this action.

  68. Feedback permalink
    November 22, 2009 7:45 pm

    Ben Santer:

    “A good conspiracy theory always sells well.”

    Of course, so now even the major Norwegian newspaper writes about it:

    http://www.aftenposten.no/nyheter/uriks/article3385865.ece

    Title: “Researchers disagree over “climate mafia”

    Eystein Jansen, head of the Bjerknes Centre for Climate Research, comments to Aftenposten:

    “I don’t relate to e-mails, but to what comes out of the scientific literature.

    “What do you say to those who think that these e-mails show that the scientific literature is controlled?”

    “I don’t beleive that at all. The review system of the journals is so broad that deceit will be exposed there. Besides one has to realize that in e-mails, one keeps a more colloquial tone than elsewhere. Any interpretation of each e-mail is therefore up to the sender and the receiver.”

    (my translation)

  69. Jeff Norman permalink
    November 22, 2009 8:43 pm

    jcspe,

    LOL! I think you hit my nail on the head. :-)

  70. Andy permalink
    November 22, 2009 10:44 pm

    Since everyone else is speculating…

    It appears to me that the person who comes out the worst from this release is Phil Jones. So I think (speculating here) that someone is engaged in a little bit of payback and/or “creative upward mobility.”

    What the heck. It’s as good as any other theory.

  71. Gloria Mundi permalink
    November 23, 2009 2:56 am

    There was a John P. Baker listed as an attorney with Shughart Thomson & Kilroy, P.C. This firm lately merged with another to form Polsinelli Shughart, but I don’t see him on the new list. Perhaps he has struck out on his own.

    Those firms are big in public policy, sci/tech, and white-collar crime practice, it would appear.

    Oh, this is going to get interesting. People will be bankrupted, careers will be ruined, and I bet more than one dishonest scientist is going to find himself an unwilling catamite in the grey bar hotel for a few years.

    I am glad that our side has discovered Saul Alinsky, and no longer feels any compunction about destroying the watermelon Left by any means necessary. I may sign on as a plaintiff myself, especially if this fraud can be traced to Gore or Soros, and there appears to be any prospect of looting their fortunes and smearing their names.

    I normally dislike lawyers, but if they can be the angels of destruction visiting years of misery on the thieving statists who would steal our money and liberty, then three cheers for the ambulance chasers.

  72. November 23, 2009 2:56 am

    Be interesting to see where this all goes and whether the media and politicians try and ignore it. How we can build on the work of Steve and others is to get this into the public realm, so lets get blogging, twittering etc

  73. November 23, 2009 9:37 am

    The BBC are hiding behind the illegal hacker issue to justify not commenting on the content of the documents. A heroic hacker would be good on that front.

    Has anybody thought to shot an email to Jones to ask who didn’t turn up for work this morning?

  74. January 11, 2010 5:49 am

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    A whistleblower is a person who raises a concern about wrongdoing occurring in an organization or body of people

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