Out-Law News 5 min. read
30 Jan 2012, 10:00 am
The Commissioner had found that, on the balance of probabilities, the university was unlikely to be holding the deleted email, whereas it was more likely that it was, the Tribunal said. It ordered the university to take measures to try to identify whether the email still exists, disclose its details if it does or provide reasons why it should not have to.
The Tribunal was ruling over a case involving the University of East Anglia (UEA) and Dr Don Keiller. Keiller had submitted a request to the university for information under the UK's Environmental Information Regulations (EIRs) in 2009. The university had been asked to disclose details from correspondence sent from staff at the university to Georgia Tech University in the US over a period spanning approximately two and a half years from the start of 2007.
Under the EIRs a public body is generally required to disclose "environmental information" it "holds" as soon as possible and within 20 days when the information is requested. The EIRs are similar to the UK's freedom of information laws in that they give the public the right to access certain information held by public bodies. However the EIRs contain specific rules relating to the disclosure of 'environmental information'.
'Environmental information' relates to "written, visual, aural, electronic or any other material form" of information about environmental elements such as air, water and landscape. It also includes information detailing factors such as energy, emissions and noise as well as legislative measures and reports that affect those elements or factors amongst other things.
UEA had refused Dr Keiller's request claiming that there were no records of what he was looking for, and on appeal the Information Commissioner ruled that it was more likely than not that that was the case. Under the EIRs public bodies do not have to disclose environmental information if "it does not hold that information" at the time a request for it is received.
However, the Tribunal overturned the Commissioner's ruling. The Commissioner had correctly determined the outcome of the case based on the 'balance of probabilities' test, but had wrongly ruled that it was more likely the information being sought did not exist, the Tribunal said.
"We concluded that the particular email ... was probably stored on the [university's Climate Research Unit's] back-up server and probably contained information of the nature sought by Dr Keiller. We also concluded that the email being stored in such circumstances was ‘held’ by the UEA for the purposes of the relevant legislation," the Tribunal said in its ruling. (13-page / 65KB PDF)
In August 2009 Dr Keiller had requested that UEA hand over "a copy of any instructions or stipulations accompanying the transmission of data" that had been sent from staff members to Georgia Tech University in the US between 1 January 2007 and 25 June 2009.
However, UEA refused Dr Keiller's request, claiming that there were no such written "instructions or stipulations" and that only verbal communications had taken place during that period.
Dr Keiller appealed the UEA's decision to the Information Commissioner. The watchdog conducted its own investigation but ruled that, "on the balance of probabilities", the university did not have the information at the time it received the request for it.
During the course of the investigation an academic at the university's Climatic Research Unit (CRU) – Professor Phil Jones – had admitted to deleting an email he had sent to Georgia Tech that contained climate data. The email was sent sometime in the period covered by Dr Keiller's request. The investigations also revealed that CRU staff emails are backed up on a server managed by the university. However, police now control the server as part of their investigations into a "climategate" scandal the CRU has been embroiled in since late 2009.
Keiller appealed the Commissioner's ruling to the Information Rights Tribunal arguing that the university had not undertaken a "reasonable or thorough" search for the information. He claimed this was because it had been Professor Jones himself who had carried out a search for the deleted email.
Keiller said that UEA should have searched its servers for the email and that it was "logically inconsistent" for the university to claim that the deleted email did not contain any 'instructions or stipulations' he had requested access to.
The Tribunal said that there was "no doubt" that the email Jones had deleted had been copied to the back-up server and that there was "no persuasive evidence" that the copy had been subsequently deleted before being seized by the police.
The Tribunal also determined that it was more likely than not that the email Professor Jones had deleted contained details Keiller had requested access to see.
"We concluded that it was more probable than not that the e-mail contained ‘instructions or stipulations accompanying the sending of datasets’," the Tribunal said.
"Our starting point was that a covering email was a rather obvious place to set out such matters in relation to the attached datases," it said. "We also took into account that we heard no evidence as to what the relevant email did contain beyond the reported assertion by Prof Jones (who did not himself provide any evidence) that it didn’t contain any such matter."
"Although we took into account the reported related assertion from Prof. Jones that such matters were discussed verbally only we considered ultimately that it was more probable than not that the covering email did contain 'instructions or stipulations' relating to the attached datasets," it said.
The Tribunal then said that there was no valid argument against finding that a copy of a deleted email stored in back-up following its deletion from a computer it was originally written on was subject to disclosure under the EIRs. The Tribunal relied on non-binding rulings made in similar cases and rejected arguments put forward by the university as "over-technical".
The university had argued that the fact the email had been intentionally deleted meant the university should not be considered to have been holding the information even if it had been stored in a back-up server "in case of disaster".
"The purpose of back-up is precisely to ensure that a document is not lost; the lack of any coherent policy on retention and deletion of documents, and that had there been timeframes in such a policy, we would have expected these to be reflected in the back-up programs operated on the server. In these circumstances, it seemed more logical to us to take the view that if the email existed, it was still ‘held’ by UEA," the Tribunal said.
The Tribunal has ordered UEA to ask the police to provide a copy or "mirror" of the data stored on the seized back-up server, see if the police themselves will conduct its own search for the deleted email in question or allow a contractor to look for it instead.
The university must report to the Tribunal and Keiller whether the email was able to be sourced. If the email is recovered, the university will have to disclose the information unless it can show that a valid exemption to disclosure exists.