The “Climategate” controversy surrounding the University of East Anglia’s Climatic Research Unit has received extensive media coverage. The Unit’s computer servers were hacked into in late 2009 (around the time of the Copenhagen Summit). Following the posting of much of this material on the internet, it was alleged that, in some instances, the scientific data had been manipulated so as to produce conclusions in support of the existence of climate change, or to suppress conclusions pointing the other way. FOI requests were inevitable.

The issue has now surfaced at Tribunal level. Keiller v IC and University of East Anglia (EA/2011/0152) is an important decision, not only because of the underlying subject matter, but because it deals with the thorny question of whether or not deleted emails which still exist on back-up servers are “held” for FOIA purposes.

The case concerned a request for the covering email from one of the Unit’s researchers to a colleague in the US, attaching datasets. The requester contended that the covering email contained instructions as to the use of that data, and he wished to see those instructions. UEA responded that, as the covering email had been deleted, it no longer “held” the requested information. The Commissioner agreed – but the Tribunal did not.

It had “no doubt” that the deleted email had been backed up onto the server which had been seized by the police as part of the investigation into the hacking affair. It was “rather disconcerted” by UEA’s evidence on this issue: its witness was unable to answer several pertinent questions about UEA’s email servers, back-up systems and deletion/retention policy. It also found that this email probably would have contained instructions or stipulations on the use of the data.

Following Harper v IC (EA/2005/0001), the Tribunal dismissed the argument that even if the email was on the back-up server, UEA did not “hold” that email for FOIA purposes: in one sense, deletion suggested an intention no longer to hold an email – but the whole purpose of a back-up system is to ensure emails are still recoverable after deletion. In the Tribunal’s view, “it was a matter of common-sense that information backed-up onto a backup server in the control of UEA, but deleted from the computer on which the original email was composed, was still ‘held’ by UEA”. It “considered the counter-arguments to be over-technical”.

UEA must now establish whether the email exists on the back-up server being held by the Police, obtain a copy and either disclose it or state its case for withholding the email. This may not be the last time a Tribunal considers “Climategate”.

On a related note, the Tribunal will consider an appeal on Friday 27th January in which the disputed information is the name of the principal donor behind the Global Warming Policy Forum, a think tank fronted by Lord Lawson, which is sceptical about prevailing theories on climate change – see the Guardian‘s story here.

Robin Hopkins