The Information Tribunal has finally reached its decision over David Holland's request for access to the Russell inquiry's emails. The decision is that they should not be released.
That's the bad news.
The good news is that the decision seems to have been made on the grounds that David H failed to demonstrate that UEA were controlling the inquiry. These are the only grounds on which the Tribunal could have demanded that the emails be released. However, in the course of reaching that decision, the judge seems to have doubted the soundness of the inquiry:
...we find it surprising that there was no contractual document, and in particular, that there was no discussion between them about the information that would be received or generated by the ICCER. Professor Acton’s evidence is that he had the advice and input of other senior colleagues at the time he was setting up this inquiry. We would have thought, in any event, that it would be almost instinctive for Professor Acton, as an historian, to have taken an interest in the question of what would happen to the information after Sir Muir’s work was concluded, even if he wanted to ensure that it was held independently during the course of the inquiry itself. His evidence as to why there was no specific agreement on this issue, nor even any discussion, appears to be somewhat contradictory. On the one hand, he says that he and his colleagues did not turn their minds to it because they were focused on getting the inquiry up and running. On the other hand, he says that it was important that the UEA not have any claim to the information because that would have compromised the information people might have been prepared to give to the inquiry, and in turn, would have compromised its independence. The second position suggests that the issue was actively considered; the first suggests that it was not. Given that Professor Acton has stressed, throughout, the importance of the inquiry not only being independent, but being seen to be independent, we would have thought that a clear statement to the effect that the UEA would not have control over, nor even sight of the information received or generated by the ICCER, would have been important.
Sir Muir’s evidence in this regard is equally surprising. His witness statement sets out his previous experience and shows an impressive track record in senior positions in the civil service and in academia. By his own evidence, he took legal advice at the outset, and at various stages to ensure, for example that data protection laws were complied with and also, took advice on a possible action in defamation had the ICCER published the Appellant’s submissions. He also ensured that there was legal liability insurance in place. There is no explanation for why, given Sir Muir’s extensive and relevant experience, his attention to detail in other respects, and his access to legal advice (there is no evidence that he was under any financial constraint in the extent of the advice he was able to obtain), neither he nor his advisers considered the practical, even if not the legal issue of the control and ownership of the information at the end of the inquiry, let alone during the inquiry itself.
Nevertheless, although we would have expected the issue to have been expressly considered, that does not mean that we have found either witness lacking in credibility. There is no evidence before us to support a finding that the witnesses have been untruthful. Dishonesty cannot be inferred simply from shortcomings or oversight. We accept that there was no documentary evidence on the subject, and that the parties did not discuss the subject at
any time.
Shortcomings and oversight eh?
What then can we deduce from the course of dealings between the parties as to their expectations and understanding about this information? Both witnesses state with conviction that they were always clear that the UEA had no claim to the information and that it was held by the ICCER on its own behalf. Professor Acton says that the UEA would never have expected to have access to the information, much less control over it, and Sir Muir says with equal conviction that had the UEA ever sought access to the information, it would have been refused.
114. Given the complete absence of any discussion between them on the subject, it may seem surprising that they are so clear about their understanding in relation to the information. Be that as it may, we find that the course of dealings between the parties supports a finding that they acted in keeping with the understanding that they say they each had...
The Tribunal did not see the appointment of Prof Boulton as evidence of UEA controlling the inquiry, but seemed, shall we say, a little taken aback by Russell's decision to appoint him:
We accept, however, from the evidence of both witnesses, that the UEA had no say in the appointment of Professor Boulton, nor indeed of other members of the team. We further accept that it was necessary, in order to maintain both the perceived and actual independence of the ICCER, that Sir Muir should have had a relatively free hand in engaging those individuals he considered were most appropriate. Although, we would have expected that that freedom might have come with the proviso that nobody would be engaged, whose involvement might put the independence of the inquiry in jeopardy, and although we would have expected that even without any such proviso, Sir Muir would have steered clear of appointing any such individuals, it does not follow that the appointment of Professor Boulton means that the inquiry was not independent. The decision to appoint him may have been unwise, but that is not the same as saying that by virtue of his appointment, the ICCER was effectively controlled by the UEA, with Sir Muir acting only as credible figurehead, as the Appellant asserts. There is no evidence before us that would support such a finding...
"Unwise" too...
In short, although as we have indicated quite frankly, there are certain matters concerning how the inquiry was set up and conducted which we have found to be surprising, we do not find that this is because the inquiry was controlled or directed by the UEA.
Surprising too.
So in summary we have an inquiry that had shortcomings, made oversights, decisions that were unwise, and the conduct of which was "surprising". But it has not been shown to be under the control of UEA.
In my book, the Russell inquiry's credibility is shot.