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« Three years until the lights go out | Main | The science cringe »
Friday
Oct052012

The Liberal War on Transparency

Chris Horner's new book has hit the shops in the US, covering the whole gamut of attempts by bureaucrats on both sides of the Atlantic to evade their obligations under the FoIA Act. There's plenty for climate geeks to enjoy. Here's a taster. They don't work for you, you know.

That political appointees and career activists in government would use private computers is in keeping with tactics I have uncovered as being epidemic in government, and particularly the current administration, and which I detail in The Liberal War on Transparency: Confessions of a Freedom of Information “Criminal” released this week.

These tactics range from the widespread use of private emails, hiding meetings with lobbyists, using “handles” and lobby groups as “cutouts” or go-betweens with pressure groups with whom the administration doesn’t want a paper trail. I even detail the White House arranging for a digital equivalent of a “safe house”, a privately owned and managed computer server on which to quietly conduct discussions about the IPCC presumably away from the taxpayers’ prying eyes.

But I also have an affidavit admitting to an elaborate system established by one activist agency – NASA’s Goddard Institute for Space Studies (GISS) – to view its emails remotely on a non-official computer, purchased with taxpayer money and used for the taxpayer’s business but access to which is being denied the government for inspection, whose use erases any trace of the records back on government servers.

This was provided me by NASA in an ongoing FOIA lawsuit we filed at the Competitive Enterprise Institute to obtain records of Gavin Schmidt, a GISS scientist who was running a third-party activist website promoting an ideological agenda on taxpayer time – at least if you believe the time-stamps, which were then “disappeared” after we pointed this out to NASA. But which we captured nonetheless.

The administration attested to this in federal court in order to defend their failure to provide certain emails to and from Schmidt’s email accounts relating to this activity. Their claim is that, because the emails were written or accessed on this unofficial computer, their system is such that the official emails are beyond the administration’s reach. In fact, the government’s copies are destroyed.

This is their defense.

The affidavit, by GISS’s Associate Chief Larry D. Travis, attests in pertinent part (emphasis added):

Dr. Schmidt uses two separate computers on which he conducts his work for NASA…One computer Dr. Schmidt uses is a laptop computer that is owned by NASA.…The other computer is a desktop computer owned by Columbia University. Dr. Schmidt purchased this computer with National Science Foundation grant monies he received while he was an employee of Columbia University, prior to his becoming a civil servant with [NASA]… [T]he [Space Station Program or SSP] contract providing IT support to GISS covers service for this computer. Nevertheless, Dr. Schmidt maintains this computer; SSP does not regularly service Dr. Schmidt’s computer and no SSP contractor has administrative privileges on the computer. Dr. Schmidt’s email correspondence is stored on his Columbia desktop computer [NB: that’s the private one, paid for not by Schmidt but by the taxpayer, to which he does not allow NASA access]. Dr. Schmidt accesses his Columbia University email via an Internet browser on the computer. Dr. Schmidt does not download his Columbia email messages to his computer; rather, they are located on a remote Columbia mail server.

NASA’s boast is that official records can be and are accessed by private computers, which not only corrupts the agency’s ability to properly comply with FOIA, it erodes the agency’s record retention and preservation. Elsewhere in the affidavit NASA states that the computer Schmidt uses is (emphases added):

a desktop…which Dr. Schmidt uses to send and receive all of his email from the @giss.nasa.gov, @nasa.gov, @columbia.edu, and @ realclimate.org domains. See Travis Decl. ¶ 18. Dr. Schmidt has never given administrative information technology (“IT”) privileges for either computer to the IT support services contractor that serves Agency personnel. See id. Thus, the email sought here is relayed to and resides on a computer that the Agency does not own, to which the Agency has no right of access, and for which no Agency official or contractor has administrative privileges. Moreover, there is no central mechanism by which GISS IT personnel can obtain access remotely to email sent to or received by a GISS email user; instead, the only way to reach such email would be via directly accessing the hard drive of the computer on which the user accessed his or her GISS email. See id. at ¶ 12b.

Which hard drive, you will note, is on a computer to which the government (taxpayer) has no access but for which the government (taxpayer) paid. And pays to service. Even if it isn’t permitted to. Had this been the government computer, well, then email traces – in the event a record is destroyed, which we know that would never happen, there are laws...stay tuned – could be reconstructed.

But GISS is using private computers, it seems, for this public service, denying the public access to the legally required record of its activities.

NASA might explain how it is not hereby knowingly sanctioning a corruption of responsibilities to create, retain, and preserve documents, both for the Federal Records Act and for FOIA. This ain’t rocket science. But we do know it is with NASA’s sanction.

However, as Dr. Travis explains, even with respect to the emails from the @giss.nasa.gov and @nasa.gov domains, these have not been integrated into an agency record system or file.

Once a[n agency] employee accesses his or her [agency] email via his or her personal computer, those emails are no longer located on any server at [the agency]; in other words, the act of accessing a specific email deletes that email from the ‘spool’ on the server. [The agency] does not currently have (nor has it had in the past) a centralized backup of [agency] email traffic.” Id. at ¶ 12b. Moreover, even if the Agency did have a centralized backup of emails from the @giss.nasa. gov or @nasa.gov domains, emails sent or received by Dr. Schmidt pertaining to his work on the RealClimate blog would not be integrated into an Agency records system or file…

Traces of the records are only on the computer the employee uses to access them. Which, at great pains, is not a government computer or one to which the government is being permitted access.

In this affidavit, NASA’s point was that its own system has gotten so far out of their control that an entire class of records cannot possibly be deemed “agency records” and so they have no obligation to search for or release them because the truth is while they may relate to official business, well, their employee won’t let them see them. And as is inherent in the system, the approved process destroys the government’s copies.

One could not hope to find a more explicit acknowledgment – or, more accurately, series of admissions, enthusiastically volunteered in an effort to get out of one frying pan (producing emails the employee wants to keep to himself) into an apparently bigger fire – that employees use unofficial computers for official duties and keep the records accessed on these computers away from the prying taxpayer eyes, skirting FOIA and, it seems other laws. They even use them to access official email accounts in a way that destroys the record.

As we have already been forced to argue to the Obama White House regarding the IPCC “safe house”, and have already filed an action to argue in court, conducting public business on private accounts or computers doesn’t make the business, and therefore the records, any less public. This particular example is simply an extreme case of flaunting disregard for this principle, particularly given NASA’s brazenness of sanctioning it and invoking the abusive practices as an expedient excuse to not turn over records produced on taxpayer time and resources.

Christopher C. Horner is a Washington, DC attorney.

Purchase details as follows:

Kindle ebook Paper book
Amazon UK Amazon UK
  Amazon US

For Kindle at Amazon US, go via paper book link. Amazon US will not let me link to it, presumably because I'm in the UK.

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Reader Comments (24)

Unbelieveable!
Were this a prosecution, rather than a defence argument, it would be "Abuse of Process".

Oct 5, 2012 at 9:58 AM | Unregistered CommenterDon Keiller

"The other computer is a desktop computer owned by Columbia University. Dr. Schmidt purchased this computer with National Science Foundation grant monies he received while he was an employee of Columbia University, prior to his becoming a civil servant"

Which was when? That hard disc must be getting a bit rattly by now...

Oct 5, 2012 at 10:01 AM | Unregistered CommenterJames P

This will bite back big time when a not-so-liberal new Administration will figure out how useful the tricks are to erode democracy.

Oct 5, 2012 at 10:14 AM | Registered Commenteromnologos

This will bite back big time when a not-so-liberal new Administration will figure out how useful the tricks are to erode democracy.

Oct 5, 2012 at 10:14 AM | omnologos

.......................

Agreed - but having been on the planet for 60 years now - I agree 100% with the adage:-

"There is not a totalitarian ideal out there that the left do not enthusiastically embrace"

Oct 5, 2012 at 10:27 AM | Unregistered CommenterDoug UK

gavin's words in 2009 may come back to haunt him!

25 June: 2009: Nature: Olive Hefferman: Funding cut for UK climate research
Ministry of Defence pulls £4.3 million from Met Office
The loss of £4.3 million (US$7.0 million) in funding from the MoD will affect the Met Office Hadley Centre for Climate Change in Exeter, the world-class climate modelling institute whose researchers made key contributions to the last assessment report of the Intergovernmental Panel on Climate Change (IPCC) in 2007.
“This news comes as a shock,” says climate scientist Martin Parry, formerly at the Met Office and now at the Grantham Institute for Climate Change at Imperial College London. “The UK’s core modelling work on climate change has been funded from this source, up to now.”…
Although the MoD has withdrawn its remaining funding, a Met Office spokesman insisted that the programme is not threatened.
The Department of the Environment, Food and Rural Affairs (DEFRA) is committed to providing £4 million per year in funding up until 2011 to ICP, and the Department of Energy and Climate Change (DECC) will provide approximately £10 million in annual funding over the same period…
***”If they don’t recoup it, they are going to be in serious trouble,” said Gavin Schmidt, a climate modeller at NASA’s Goddard Institute of Space Studies in New York. “Losing 25% of your funding is a huge deal. Five percent is generally containable, but 25% is not an amount you can hope to absorb easily.” …
However, the cuts could also lead to a better way of funding climate research, says Schmidt. The Met Office’s link to the defence ministry is unusual among national climate research centres, and some feel that it can lead to unnecessary bureaucracy.
***”Climate research should be as open and transparent as possible,” says Schmidt, “and institutional links with the defence establishment can sometimes impede that goal.
http://www.nature.com/news/2009/090625/full/news.2009.602.html

btw i still maintain CAGW is non-partisan and the shenanigans regarding NASA's emails predates the current administration.

charles the moderator at WUWT post this feb 2008 :

Subject: Final Memorandum on Audit of Retention of NASA’s Official Electronic Mail (Report No. IG-08-010; Assignment No. A-07-007-00)
http://oig.nasa.gov/audits/reports/FY08/IG-08-010.pdf

Oct 5, 2012 at 10:29 AM | Unregistered Commenterpat

It is rare to meet someone who has spent years in 'public service' who has been able to retain more than a vestigial memory of what those two words mean.

Oct 5, 2012 at 10:52 AM | Unregistered CommenterDavid C

So..the book in hardcover is
US $17.82
New $11.98
And..kindle is $19.24
A download is the most expensive..
Amazing.. :)

Oct 5, 2012 at 11:47 AM | Unregistered CommenterMike Williams

Mike Williams Oct 5, 2012 at 11:47 AM

... and unless things have changed, you do not even own the Kindle version and Amazon can remove it at will (as with a Sherlock Holmes book a while back).

Oct 5, 2012 at 12:13 PM | Unregistered CommenterAlan Bates

Americans seem to be full of hatred for some people they call "liberals", but I have never been able to find out what they mean when they say "liberal".

Oct 5, 2012 at 12:23 PM | Unregistered CommenterRoHa

While I would not doubt that the current US government attempts to avoid transparency in various areas, I question the link to liberals. Recent administrations of both parties have all had similar goals of expanding the executive branch and its bureaucracies, and limiting transparency seems to be an integral part of such efforts.

Oct 5, 2012 at 12:52 PM | Registered CommenterHaroldW

Why does the Acronym RICO come to mind?

Oct 5, 2012 at 12:52 PM | Unregistered CommenterChuckles

Even the bad guys (Gavin Schmidt in this case) don't want Big Brother (potentially) spying on everything they do, so NASA's not having control is not the point. The point is, Gavin Schmidt is a Bad Guy, and should be fired. Unfortunately, NASA is also a (really Big) Bad Guy, and has an "understanding" with Herr Schmidt, because neither of those two Bad Guys believe they are Bad Guys. They think they wear the white hats; that is, they are delusional. The whole system has been suborned by an incompetent climate consensus, which is to say in small words, Black Hats have taken over the whole shebang. And once again, students, the Liberal War on Transparency under discussion here is just part of what I have been calling the "War of the Insane Left" (and yes, I know the Conservatives are also all too likely to war on transparency when they are in power and feel besieged by "the enemies on the Other Side" -- my larger point is, reliance upon dogma by either, or any, dogmatically-defined "Side", is the Biggest Bad Thing in the world today, and we are all getting another soon-to-be-historical lesson in how effed up the world gets when we let the dogmas in and give them a preferred Seat At The Table of controlling powers). Ah, here's the point: Transparency exits as dogma enters. Dogma, dogma, dogma. The Islamic Jihad is another front in the same insane war, obviously.

Oct 5, 2012 at 12:59 PM | Unregistered CommenterHarry Dale Huffman

"I have never been able to find out what they mean when they say "liberal".

http://www.studentnewsdaily.com/conservative-vs-liberal-beliefs/

You'll never have to ask again,

Andrew

Oct 5, 2012 at 1:26 PM | Unregistered CommenterBad Andrew

Ironically, he makes it sound like a conspiracy.

Oct 5, 2012 at 2:27 PM | Unregistered CommenterJeff Norman

In addition to all the fatuous fluff about using a non-NASA computer for so much "work" on govt time, is it really credible that Schmidt never accesses these emails from the NASA laptop (or other agency supplied mobile device)?? i.e., is there anything more than their *assertion* that he accesses these email and blog accounts strictly from the "Columbia" desktop PC?? i.e., has any physically/digitally confirmed that this is the case or are we simply taking Gavin's word for it? Seems most highly implausible....

Because in this era it seems difficult to believe that he would do everything related to RealClimate and emails from an office desktop PC??? If the NASA laptop is his main mobile device one would think he uses that to access emails and the blog when traveling, at home etc. (do time stamps bear this out) Difficult to believe he can do all that stuff only while in the office physically located at his "Columbia" desktop PC.

In any case, as the post indicates, this is all bogus b.s. designed to circumvent NASA/govt record-keeping and proper FOIA accountability.

Oct 5, 2012 at 2:48 PM | Registered CommenterSkiphil

On the wider topic of (lack of) transparency, now that the Stocker IPCC letter has been released under US FOIA there is the interesting context of previous IPCC threats to marginalize UK scientists and institutions if the letter were released under FOIA in the UK.

Steve McIntyre challenges IPCC to explain its stance toward UK scientists and bodies

"...Your previous threat letters were cited in an decision by the UK Information Commissioner. If, on reflection, IPCC has re-considered its previous threats and no longer contemplates retaliation, you should so notify the UK Information Commissioner, Universities UK, the Parliamentary Justice Committee and the University of East Anglia."

Oct 5, 2012 at 2:58 PM | Registered CommenterSkiphil

scarier & scarier, but all will be well if taxpayer money is given to worthless alternatives, so long as it is 'transparent and rigorously scrutinised'. what a laugh!

5 Oct: Daily Mail: Eddie Wrenn: Britain could run out of energy to power homes in just THREE years, gas and electricity watchdog warns
Spare energy capacity could drop to just four per cent by winter 2015
Ofgem said closures of coal-fired power stations before schedule and EU legislation was behind the reduced capacity and urged investment...
Ofgem also warned that uncertainty over the government's plans to revamp the electricity market meant it was unclear whether new, cleaner plants would be built to bridge the gap...
The owners of four plants, with a combined generation capacity of around 6 GW have already said they will close their plants by March 2013 and Ofgem said in the report that most plants would shut 'well before the 2015 deadline'.
The government has launched a wide-reaching Electricity Market Reform Bill designed to give support to investors in new low-carbon electricity such as nuclear and renewable generation...
Audrey Gallacher, director of Energy at Consumer Focus, said: 'While there is enough generation capacity to mean that widespread power-cuts are still unlikely, narrower margins mean the risks of outages are higher and scarcity of energy could also feed into possible price rises in future...
'It is right that we close our oldest and most polluting energy plants, but it is essential that new initiatives deliver investment in alternative energy generation to meet this gap.
***'At the same time however consumers cannot write a blank cheque to cover the costs of new energy. To avoid this happening the Government and regulator must ensure that the costs passed onto consumers are fully transparent and rigorously scrutinised...
http://www.dailymail.co.uk/news/article-2213362/We-energy-years-Ofgem-warns.html

Oct 5, 2012 at 4:36 PM | Unregistered Commenterpat

Bernie Madoff always had his own private computer terminal.

Everyone would have known that Bernie was running a fraud if he hadn't.

Oct 5, 2012 at 4:38 PM | Unregistered CommenterZT

Sounds like treason to me!

Oct 5, 2012 at 5:30 PM | Unregistered CommenterGene

So what "secret" e-mails could be behind our race towards power shortages?
http://www.bbc.co.uk/news/business-19842401
Even the BBC gives top spot to this and also on front window of Telegraph
http://www.telegraph.co.uk/finance/newsbysector/energy/9589213/Britain-faces-risk-of-blackouts-warns-Ofgem.html
We could do with some realism and transparency in the Government. Fancy Davey will respond by the end of the year. I wonder what is going on "behind the curtain". Worthy of some debate on Bishop Hill.

Oct 5, 2012 at 5:35 PM | Unregistered CommenterJohn Peter

Liberals (leftists) love to pass laws to constrain and regulate their political opponents and ideological enemies, but when it comes to enforcing the spirit and the letter of the law against other like-minded liberal individuals, special dispensations are often accorded.

There is no area of law that is more violated in this manner than the so-called “sunshine laws.”

Oct 5, 2012 at 5:48 PM | Unregistered Commentertheduke

It's a great title in election year.

Oct 5, 2012 at 5:48 PM | Unregistered CommenterRichard Drake

"Once a[n agency] employee accesses his or her [agency] email via his or her personal computer, those emails are no longer located on any server at [the agency]; in other words, the act of accessing a specific email deletes that email from the ‘spool’ on the server. "

I simply cannot believe that an official government email server would be configured such that when a user downloads his email off of the server that a copy is not archived. The fact that it is done via a personal computer is irrelevant.

That must be against all sorts of policies as well just plain ignorant. Imagine the scenario where somebody compromises Schmidt's email account, logs into NASA's email and downloads a whole bunch of emails. That right there should tell you how bad of an idea that statement is.

In fact, it might be so bad that it's simply a bald-faced lie. Maybe somebody should FOI the NASA IT security policy documents and configurations.

(This is my field of exepertise)

Oct 5, 2012 at 8:17 PM | Unregistered CommenterMikeC

Information Retrieval is on the 30th floor. Your lift's here, sir.

http://www.youtube.com/watch?v=LFlFIG22Y9E

Oct 5, 2012 at 8:58 PM | Unregistered CommenterMickey Reno

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