Some questions for the BoM’s FOI executive

— by Barry Brill, Chairman of the New Zealand Climate Science Coalition

Warwick Hughes’ request under the Australian Freedom of Information Act (FOIA), has been declined by the Australian Bureau of Meteorology (BoM) on the grounds that it might divulge information supplied “under an obligation of confidentiality” by a foreign Government to the Australian Federal Government.

The Court ruling which established this exemption to the FOIA dealt with a case involving intelligence-sharing with the Australian Security Intelligence Office (ASIO). In contrast, Mr Hughes’ case dealt with old weather records.

Several questions arise

1. Did NIWA impose an obligation of confidentiality on the Bureau?

It seems clear that neither party even thought about confidentiality until the request was made. The contract between NIWA and the BoM, whether written or oral, contained no confidentiality clause. But the BoM says that they were “peer-reviewing” and allege that this practice is always conducted in confidence.

In a vacuum, the words “peer review” mean very little. It can happen any time a professional person reads any paper authored by a co-professional. But the expression has also become a term d’art describing the specific situation where a journal editor seeks anonymous and independent advice regarding a scientific paper submitted for publication. In this particular case, there is a convention that the review opinions (not the paper submitted) are treated as confidential.

As argued in this post, the BoM activity did not fall within the term d’art. If a confidentiality clause is to be implied in the NIWA/BoM contract, it must rest on some other justification.

2. Can public information become private, under the FOIA?

According to the Schedule of Documents, over 90% of the information provided by NIWA comprised temperature records which have long been in the public domain. They may be downloaded by anyone, free of charge, from New Zealand’s Climate Database.

The purpose of the FOI Act is to promote transparency and to improve accountability of Government servants. Surely the Act could not have the effect of converting existing public data into opaque documents which may not be disclosed!

3. Can the confidential bits be redacted?

NIWA is a party to only 44 of the 159 scheduled documents, including those which provide public temperature data. Most documents are concerned with two series of tests applied to the data by the Bureau, using its own software and models, which do not appear to be reliant in any way on NIWA inputs (apart from public data).

If the wording of any document may be thought to divulge some exempt information, the purposes of the FOIA would be best served by disclosure of all documents after redacting the confidential words or figures.

4. Why not release non-confidential documents?

At least 10 media-related documents in the Schedule clearly have no confidentiality obligations imposed by NIWA.

If peer-review is the justification for non-disclosure, it cannot apply to the 19 documents dated after the ‘peer-reviewed-paper’ was published on 15 December 2010.

5. Is secrecy by climate scientists in the public interest?

In its letter refusing disclosure, the BoM cites s 47C of the FOIA which allows “deliberative” documents to be suppressed if disclosure would be “against the public interest”.

It then argues that disclosure would prevent “free and frank” exchanges between climate scientists; cause Bureau officers to refuse to participate; discourage availability of both internal and external experts, and destroy relations with other research agencies.

What shrinking violets these climate scientists are! Their fear of disclosing data and/or opinions to ‘outsiders’ verges on paranoia.

Climate scientists’ taste for secrecy is a well-known, worldwide phenomenon, highlighted by the release of emails from the University of East Anglia’s CRU in 2009. But almost all the diverse commentary on that event agreed on one point — the secrecy was regrettable and should be discontinued.

The UK House of Commons Select Committee made this recommendation:

Climate science is a matter of great importance and the quality of the science should be irreproachable. We therefore consider that climate scientists should take steps to make available all the data that support their work (including raw data) and full methodological workings (including the computer code). Had both been available, many of the problems at the University of East Anglia could have been avoided.

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