Information Tribunal decides on the IPCC Zero-Order Drafts

Tim Osborn

[This article was subsequently revised and posted on the Climate Lab Book blog.]

On 1 May 2015, the First-Tier Tribunal unanimously dismissed David Holland’s appeal for copies of the Zero-Order Draft (ZOD) of the IPCC’s Fourth Assessment Report (AR4). Their decision is available here. They consider Holland’s appeal to be “entirely without merit”.

This decision might just bring to a close the long history of Freedom of Information (FOI) requests for IPCC-related materials held by UK scientific institutions. These began more than 7 years ago with an FOI request to UEA (actually, most requests were handled under the Environmental Information Regulations – the EIR – which, though closely related to the FOI Act, have some distinct legal rules). There are some interesting aspects of the Tribunal’s decision that I highlight towards the end of this post, but first I’ll look at how this request developed from earlier cases.

Key starting points are that (1) the IPCC’s principles require the assessment process to be open and transparent, (2) this is achieved via the broad-ranging review of two formal drafts (drafts and reviews that are subsequently made public), and (3) the IPCC considers ‘pre-decisional’ material such as the ZOD to be provided in confidence and not for public distribution. The IPCC’s Working Groups are not formally required to produce a ZOD, it is simply an informal stage that they have often (though not always) chosen to implement to help ensure that the first formal draft is as good as possible.

More detail on these starting points. The IPCC’s principles require the process to be “objective, open and transparent” and this is achieved through the writing and formal review of two drafts (First- and Second-Order Drafts, FOD and SOD) prior to completion of the final assessment report. These drafts are available for expert review, though anyone may self-declare their expertise, so it is open to a wide range of reviewers. These drafts, the review comments, and the authors’ responses are publicly released. For AR4 Working Group I (WGI), they are available here (click “Drafts and Review Materials”), while for the Fifth Assessment Report (AR5) they are here.

In 2011, Holland made multiple requests (here, here, here, here, here, here, here, here, here and here) to multiple UK universities and other institutions (such as the Met Office) for the ZOD of the IPCC’s AR5 together with a list of its reviewers and their comments on it. His requests covered much more material than this, some of which was already in the public domain and some of which was released (e.g. by UEA).

All institutions withheld the ZOD, considering it exempt under EIR exceptions. For example, the University of Bristol noted:

“A number of documents held are currently in draft form and are under review. The release of material which is still in the course of completion could reveal a misleading picture to the public as work on these documents continues. It could be argued that disclosure would not be in the public interest as the draft reports are incomplete and may be missing important explanatory or contextual information that would aid public understanding.

The ZOD in particular is a pre-decisional document that allows experts to contribute freely and frankly in a confidential setting. The ZOD will contribute to the WGI AR5 First Order Draft which will be submitted for formal expert review in mid-December 2011 and finalised in September 2013.”

Even when EIR exceptions clearly apply, the public interest must be carefully weighed to see if it favours disclosure despite the exceptions or whether the public interest is best met by withholding the documents. For example, the University of Reading reasoned:

“having taken into consideration the general public interest grounds favouring disclosure, such as promoting transparency, accountability and participation in debates around climate change, it finds that this exception should be maintained. It takes this view because public debate should be informed by robust information, not obfuscated by draft data that is neither finished nor verified. Established mechanisms for providing such information, such as the review process whereby drafts undergo a rigorous editorial process to ensure the quality of the information, already exist. These processes provide transparency in the process that serves the public interest.”

Bristol also noted the importance for a private space within which authors could have a free and frank exchange of ideas:

“The ability of expert reviewers to exchange free and frank comments at an early stage of the drafting process is important”

The University of Oxford agreed:

“AR5 will be a more valuable and reliable document if the scientists responsible for its preparation are able to develop their thinking without the inhibiting effects associated with publicity, particularly during the early and preliminary stages of drafting.”

Holland then made lengthy arguments for internal reviews of these decisions, relying on a number of poorly made and seemingly contradictory arguments. He noted that the ZOD is an informal review and that the IPCC’s procedures did not require them to be released, yet claimed that the IPCC’s rules for releasing formal drafts should be applied. He noted Sir John Houghton’s view that the credibility of the IPCC process and conclusions was strengthened because drafts are made available, yet didn’t acknowledge that Houghton’s comments could only apply to the formal FOD and SOD because ZODs had never been made publicly available.

The institutions involved reviewed their decisions and all upheld their original decisions to withhold the AR5 ZOD and related materials. They were satisfied that the public interest in allowing public scrutiny and accountability of the IPCC’s assessments was adequately met by the formal FOD and SOD reviews and their subsequent public release.

Not satisfied, Holland subsequently focussed his efforts on appealing only the Met Office’s decision, first to the Information Commissioner’s Office (ICO) and then to the First-Tier Information Tribunal. Both appeals were refused (in August 2012 and July 2013).

The 2013 Tribunal case considered 400 pages of written material as well as an oral hearing involving Holland, Peter Stott from the Met Office and legal counsel. Even when FOI exemptions or EIR exceptions apply to a request, applying them in practice can be costly in time and money – something that those (e.g. here) who blithely point to these exemptions to dismiss the burden that information laws lay on universities would do well to consider.

The 2013 Tribunal considered two key issues: would disclosure of the AR5 ZOD hamper the effectiveness of those carrying out the assessment and would relations between the IPCC and UK authors be harmed if the AR5 ZOD was disclosed in violation of the IPCC’s clear position that it should not be. In the end, their decision to dismiss Holland’s appeal was determined mostly by the public interest in ensuring that UK scientists can maintain good relationships with the IPCC and a “safe space” in which to develop their views without being held to account for views that are still being developed.

However, the 2013 Tribunal offered an interesting view: that the public interest in favour of non-disclosure would weaken over time and especially once the IPCC’s AR5 was published (the Tribunal’s decision was published two months before the final WGI AR5 report was accepted by the IPCC). The Tribunal suggested that their decision might have been different after publication of the final report and questioned why the IPCC would not publish the ZOD along with the FOD and SOD at that time. This view seems to arise from the 2013 Tribunal’s incomplete understanding of the nature of the ZOD (i.e. that it is an informal stage that the Working Groups choose to produce simply to assist with the overall assessment task they have been set) and that it doesn’t have comparable standing to the formal FOD and SOD documents.

Though the Tribunal found against Holland’s appeal, their suggestion that the public interest for withholding the ZOD would weaken after the report was published encouraged him to make a new request, this time for the AR4 ZOD. AR4 had been published 6 years previously, in 2007. The Met Office declined this request for similar reasons, despite Holland pointing to the 2013 Tribunal’s view of a weakening public interest in non-disclosure. They noted that the Tribunal did not order future disclosure of information.

Holland appealed to the ICO, who dismissed his appeal in June 2014. The ICO took into account the 2013 Tribunal’s view, but felt that the Tribunal had an incomplete understanding of the nature of the ZOD (the IPCC had disputed the 2013 Tribunal’s statements concerning the status of the ZODs and the reasoning for not publishing them along with the FOD and SOD).

Holland appealed this decision to the First-Tier Tribunal and it is their decision that has recently been published (1 May 2015). There were again lengthy written submissions and an oral hearing.

Despite the 2013 Tribunal’s view that the public interest in favour of non-disclosure diminishes over time, the decision rests on the balance of this public interest with the public interest for disclosure. What Holland had not considered – but the new Tribunal did – was that this too weakens over time:

“When the [AR4] ZODs were requested in 2013 they were at least 7 years old. Not only were they superceded by the successive drafts of AR4 leading to the published AR4 itself; but AR4 was about to be superceded by AR5 containing an analysis of all the work published subsequent to AR4. Science had moved forward during that time, the ZODs were by the time they were requested rough out of date drafts of no value in informing anyone of what the state of climate science is in 2013.”

Not only that, but Holland seemed to accept this:

“The publication of the ZODs is a distraction with no value in promoting public understanding. In his oral submissions Mr Holland seemed to accept that: “there is nothing in the information…I don’t expect to get anything…I don’t think there’ll be a lot.”

The Tribunal, in contrast to the earlier one, were satisfied that the IPCC were indeed clear about their expectations for the ZOD and dismissed a number of Holland’s related arguments about the IPCC’s rules and whether the co-chairs of the IPCC’s WGI have legitimacy to carry out their IPCC roles effectively.

Indeed, the Tribunal seem to be somewhat impatient with Holland and his arguments:

“He alleged illegitimate conduct and conspiracy by scientists and that the claimed confidentiality had been “cooked up” recently. He quoted detailed extracts of communications from the co-chairs of IPCC WG1 describing them as “fabricated” and “posturing threats”. He argued that a decision of the 33rd session of IPCC relating to confidentiality was illegitimate.”

and

“Although Mr Holland strenuously denied it, the EIR and the Aarhus Convention from which they derive make explicit provision for the possibility of the withholding of environmental information where harm to international relations would result.”

and

“In weighing the competing public interests in disclosure and non-disclosure the tribunal considered that the claims of Mr Holland were over-stated. Although he attempted to argue for misconduct he was unable to produce any coherent evidence or argument for it.”

and

“In oral argument Mr Holland stated that he was “not concerned about the science it’s the conclusions drawn from the science”. In the light of this it was perhaps surprising that he cast doubt on Aarhenius original work on the absorption of infra-red radiation by atmospheric carbon dioxide (carried out in 1896) stating that he had discovered by reading an article on google that Aarhenius’s methodology could not have worked. He appeared unaware of subsequent developments in physics relevant to Aarhenius’s research into the behaviour of gases.”

Contrast this with their opinion of the Met Office’s Peter Stott:

“The Tribunal was satisfied that Dr Stott gave fair and considered evidence. He was an impressive and reliable witness.”

Although appeals can be made to an upper tribunal, there may be no grounds for appeal and there is a time limit. It seems likely that this decision will bring to a close this and related cases (e.g. Holland’s request for the ZOD of the 2001 Third Assessment Report).

Finally, because the IPCC considers other informal drafts and communications between its authors to be in the same category as ZODs, the decision is also pertinent to requests for such IPCC-related materials that stretch back to 2008. The implication is that the material covered by those requests may have been exempt from disclosure, thus resolving a prominent issue in the controversy that followed the hacking of our emails in 2009.

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