NIWA’s review: what are they hiding?

 

NIWA refuses our OIA request—but why?

… continued from my initial post describing the weak endorsement from the Bureau of Meteorology of NIWA’s review of the official NZ temperature record (NZTR) and my subsequent demand under the OIA for copies of correspondence with the Bureau.

What has NIWA got to hide? They bought the Australian Bureau’s advice with taxpayer’s money — why is it being kept secret? Why can’t we see everything the Australians told their colleagues at NIWA? It’s only the temperature record, for goodness’ sake!

That’s not yet a state secret. It’s not like giving away the number of windmills we’re planning to build, or anything.

NIWA claim the BoM correspondence is protected by legal professional privilege. That could be the case if the Review was undertaken for the purpose of defending the legal proceedings — but the temperature Review was announced in February, at least five months before the Coalition’s legal proceedings were filed in the High Court in August.

On the face of it, there is no reason to keep this important information away from the New Zealand public.

On the face of it, there are very important reasons why the New Zealand public must have access to everything the Australian Bureau said. Even if it’s embarrassing to NIWA, we should be told why the BoM have given such luke-warm support to NIWA’s review.

About a week ago I received a polite letter from NIWA’s legal counsel, Tim Mahood, saying they “cannot provide you with copies of the material you seek” and giving reasons (see below). My legal counsel advised me to appeal to the Ombudsman, which I did. These are the three letters documenting events so far.

OIA letter asking for BoM material

2 Jan 2011

Mr John Morgan
Chief Executive Officer
NIWA
Newmarket,
Auckland

Dear Mr Morgan,

I operate a blog, the Climate Conversation Group, whose readers have long taken a close interest in New Zealand climate records. Currently, there is much interest in the Review published on the eve of Christmas, as well as the role played in the Review by the Australian Bureau of Meteorology (BoM).

Please regard this letter as a formal request for access to (or copies of) the following official information:

All electronic or paper communications relating in any way to the Review project (including but not limited to faxes, emails, reports, papers, documents, letters, memos and texts) that passed between NIWA and BoM during the period from 1 September, 2010, to 18 December, 2010.

I should be grateful if this request could be treated as urgent, as envisaged by S 12 (3) of the Official Information Act. This is because interest in the Review will likely be at its height over the next few weeks, and will inevitably decrease as time passes.

Yours sincerely,

Richard Treadgold
Convenor
Climate Conversation Group

NIWA’s reply

Dear Mr Treadgold

Official Information Act request – correspondence between NIWA and BoM

I refer to your letter dated 2 January 2011, seeking copies of:

All electronic or paper communications relating in any way to the Review project (including but not limited to faxes, emails, reports, papers, documents, letters, memos and texts) that passed between NIWA and BoM during the period from 1 September, 2010, to 18 December, 2010.

Your letter was received by NIWA on 6 January, 2011 and has recently been passed to me for review and response.

NIWA has reviewed that material, considered your request and cannot provide you with copies of the material you seek for the following reasons:

1. The correspondence between NIWA and the Australian Bureau of Meteorology consisted of inter-scientist communications relating to the conduct of a peer review, and was conducted on a confidential basis. The expectation of the correspondents was that the contents would not be disclosed;
2. The purpose of the correspondence was to enable a free and frank exchange of opinions leading to appropriate modification of a draft scientific report prior to its publication. This report is the “Review” by NIWA of its “Seven Station” temperature series to which you refer. The correspondence was part of a peer review process conducted during the course of each party’s duties. To disclose such correspondence would stymie the flow of similar information, negatively affect the ability of NIWA and the Bureau of Meteorology to conduct such peer reviews, and negatively affect the ability of NIWA to have draft papers peer reviewed prior to publication. This would be prejudicial to the public interest. It is in the public interest that information and papers published by NIWA are accurate and to a high scientific standard. Peer review, an essential part of the scientific process, assists with maintaining such standards; and
3. The correspondence you seek is the subject of legal privilege as the review, and correspondence with the Bureau, is directly relevant to the judicial review proceedings filed by the New Zealand Climate Science Education Trust.

NIWA has considered the reasons which would support disclosure of that correspondence, but believes that the balance favours non-disclosure of the information you seek.

Irrespective of the legal privilege ground, the confidentiality of the peer review process is a long standing, and widely accepted, convention. That convention forms an essential aspect of, and is paramount to, the success of the scientific process and method. To breach this convention would weaken the ability of scientists to undertake thorough, frank and potentially critical reviews of draft papers, thereby decreasing the rigour with which draft papers are examined.

Peer reviewers review papers critically and objectively and make suggestions for improvements before publication. Peer review is part of a due process which provides objectivity to scientific papers and minimises the possibility of personal bias. It is in the public interest that a robust examination of draft scientific papers, by suitably qualified scientific experts, occurs. This ensures that the hypotheses and results contained therein are thoroughly tested; so the public can be confident of the scientific principles and results conveyed.

NIWA believes that, in this instance, the public interest lies in withholding the information, thereby maintaining the confidentiality of the scientific peer review process, enabling free and frank discussions to occur and upholding legal privilege, rather than in disclosure of the information you seek.

Section 28(3) of the Official Information Act allows you complain [sic] to the Ombudsman regarding this response.

Yours sincerely
Tim Mahood
General Counsel

The letter of appeal to the Ombudsman

5 Feb 2011
Office of the Ombudsmen,
P.O. Box 10-152,
Wellington 6143.

By email: complaint@ombudsmen.parliament.nz

I should like to appeal under section 28 (3) of the Official Information Act (“the Act”) against the decision of the National Institute of Water and Atmospheric Research Ltd (NIWA) to decline my request for copies of certain documents.

I attach a copy of my request letter dated 2 January 2011, and a copy of NIWA’s response dated 4 February 2011.

There does not appear to be any dispute that the requested documents comprise “official information” in terms of the Act. Rather, NIWA’s refusal appears to be made under Section 18 (b) and presumably relies upon one or more of the grounds described in Section 9.

Although NIWA’s formal response is not specific, the wording suggests reliance upon paragraph (2) (ba), which applies “if, and only if, the withholding of information is necessary to … protect information which is subject to an obligation of confidence … where the making available of the information would be likely to prejudice the supply of similar information, or information from the same source, and it is in the public interest that such information should continue to be supplied.”

First, NIWA does not go so far as to claim that its correspondence with the Bureau of Meteorology (BoM) was “subject to an obligation of confidence,” simply observing that the parties did not expect the contents to be disclosed. The Act says nothing about mere expectations and the statutory requirement is not met.

Secondly, the correspondence in question arose in the course of a commercial consultancy project, whereby NIWA briefed the Bureau to undertake a defined low-quality audit of a proposed climate report—which was eventually published on 17 December 2010.

NIWA has paid for the information being sought, using public funds. There is no reason to believe that the Bureau would decline to undertake further fee-earning projects if its advices were disclosed [the BoM is itself subject to Freedom of Information statutes].

The fact that frank and free exchanges of opinion occurred has no relevance. Nor does the observation that the process was conducted in the course of duty of the parties.

This is a very different situation from scientific “independent peer review”. That term d’art applies to the action initiated by editors of learned scientific journals considering manuscripts submitted for publication. Editors traditionally request two or more expert commentators to advise the editor on whether the submitted paper is worthy of publication in the journal. The author(s) of the paper have no say in the selection, and may never know who was involved or what was said.

In the instant case, NIWA approached the Bureau and negotiated a commercial contract for services, which thereafter governed the relationship. No outside parties were involved, and no party was “independent”. The term d’art has no application.

Finally, there is no merit in the allegation that legal professional privilege attaches to the report or the correspondence under paragraph 9(2)(h) of the Act. The contract between NIWA and the BoM was not undertaken in contemplation of legal proceedings.

Yours sincerely,
Richard Treadgold
Convenor
Climate Conversation Group

Thus we toss our stones across the pond and watch to see how far they skim away.

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