Strange Bedfellows … and Fear of Broad Impacts of Mann/UVa Court Ruling

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An upcoming Virginia Supreme Court ruling in litigation involving access to Michael Mann/University of Virginia e-mails raises thorny media access and freedom of information concerns involving potential scope of decision.

Pitting the interests of academic freedom against transparency, media access, and freedom of information, a high-profile case before the Virginia Supreme Court involving climate scientist Michael Mann is expected to be decided over the next few weeks.

The plaintiffs in the case are Virginia Republican Delegate Robert Marshall and the American Tradition Institute (ATI), a libertarian group that takes a strongly skeptical stance on climate change. They want Mann’s e-mail correspondence when he was a professor at the University of Virginia, a public university, between 1999 and 2005. ATI has also sought information regarding the work of scientists at public universities in Arizona and Texas, and also the work of NASA scientists.

The Mann/UVa case represents continuing fall-out from the University of East Anglia hacked-e-mails disclosures, when communications between Mann, now at Penn State, and other scientists were characterized by those opposing efforts to cut carbon emissions as casting doubt on global warming data.

Mann, author of a recent book about the now-famous “hockey stick graph” he helped construct, and other scientists whose e-mails were hacked have all been cleared of any wrongdoing as a result of several independent investigations. Yet those contesting action on climate change have continued to look for a “smoking gun” of research malfeasance; Mann’s e-mail account, they hope, might have it. (It is worth noting, however, that the data underlying many studies in question have long been publicly available, and the studies themselves have been vetted through peer reviews.)

If it all feels like legal deja-vu, that’s because it is — though this particular case has come with a twist, as new, broader issues of information access are at stake. On the surface it looks like a kind of redux of the suit launched by then-Virginia Attorney General Ken Cuccinelli. But because of different legal issues, it has ended up bringing together strange allies, banding together media groups with the libertarian think tank.

Background on Mann/UVa ‘Round Two’

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Penn State Climate Scientist Michael Mann

In 2012, Cuccinelli lost his suit, giving a victory to Mann and the University of Virginia largely on technical grounds that do not pertain to the current ATI case. In the majority opinion in the Cuccinelli case, Virginia Supreme Court Justice Leroy F. Millette, Jr., wrote that Cuccinelli could not use the state’s Fraud Against Taxpayers Act to demand documents from Mann because the statute allows for the investigation only of a “person,” corporation, or other private business, and the University of Virginia does not qualify as any of the entities subject to the law.

The key issue in the pending case over the quest for Mann’s e-mails involves the extent of Virginia’s state freedom of information laws, which ATI is using to request Mann’s documents. That issue has galvanized a coalition of 18 heavyweight press groups — including the Reporter’s Committee for Freedom of the Press, the Associated Press, Reuters, NPR, Dow Jones, Politico, The Washington Post and others — who somewhat quietly penned a friend-of-the-court or “amicus” brief favoring disclosure of this type of e-mail.

A Precedent for ‘Tens of Thousands of Cases’?

Meanwhile, the National Academy of Sciences and a number of large higher education associations and other academic interests are supporting Mann’s position with their own legal brief. Michael Halpern of the Union of Concerned Scientists (UCS) has written about relevant background for the scientific community. “The court clearly understood the potential consequences of the actions it is being asked to take,” Halpern wrote after attending the Virginia Supreme Court’s January 2014 hearing, “with multiple justices talking about how the interpretive standard they set will apply not just to this case but to tens of thousands of cases.”

In general, private universities are not subject to freedom of information laws. But most researchers communicate with peers at both private and public universities, and sometimes collaborate on grants, so information disclosure policies have a wide bearing for the nation’s academic community writ large. E-mail chains, for example, frequently include at least one researcher at a public institution, making all the messages in that chain subject to disclosure.

Fear of ‘Overly Broad’ Ruling … and Meaning of ‘Proprietary’

The case is faintly reminiscent of others before U.S. courts that have united disparate left-and right-leaning groups on issues of the First Amendment and free speech. Now, freedom of information is at issue.

A lower Virginia court has already ruled against ATI and in favor of Mann, reasoning that the documents are of “proprietary nature.” Virginia’s FOIA law does explicitly exempt “data, records or information of a proprietary nature produced or collected by or for faculty of staff of public institutions of higher education … in the conduct of or as a result of study or research on medical, scientific or scholarly issues, whether sponsored by the institution alone or in conjunction with a governmental body, where such data, records or information has not been publicly released, copyrighted or patented.”

The press groups worry, according to their brief, that an “overly broad” ruling would remove “almost all public documents from the ambit of the records law,” and they say they want the meaning of “proprietary” restricted to things such as research ideas that can be patented. Further, the press coalition in its brief states,

While truly proprietary information in the possession of a public university should not be subject to request under [Virginia] FOIA and in fact is properly exempted, e-mail among professors is not entitled to a blanket treatment as proprietary. Instead, such communications are an essential part of the functioning of the university and must be subject to public scrutiny. Because such communications have been held not to implicate academic freedom, and because the type of e-mail at issue here does not include unpublished information in which the professors or the university have a competitive interest, it must be subject to VFOIA.

The authors of the press coalition brief say they are not taking a position on Mann’s e-mails per se, but rather are just trying to ensure the door stays open for media wanting to request documents of all kinds at public institutions. They note that the Virginia legislature might have written a provision exempting information on other grounds. For example, under federal FOIA law, communications that are part of a “deliberative process” can be withheld. The theory is that public disclosure of internal policy drafting debates would stifle frank and honest exchanges. Virginia’s state laws do not explicitly spell out such an exemption.

Still, that does not mean the Virginia Supreme Court could not interpret the law in this way. Indeed, a friend-of-the-court brief by the Union of Concerned Scientists and the American Association of University Professors argues that the request for disclosure should be denied in part because “[e]xposing such preliminary thoughts and deliberations to the public eye would inhibit researchers from speaking freely with colleagues, with no discernible countervailing benefit.”

Peter J. Fontaine, Mann’s attorney, told The Yale Forum in an e-mail that he believes the press groups are “flat wrong” in taking the side of what he called an “industry shill” in this case:

The correspondence of public university faculty should not be open to anyone who wants to read it. Nor should the cost of reviewing, producing and/or redacting such correspondence fall on the public university. A contrary ruling on either point would do unique damage to America’s public universities. Failure to protect the interests of public universities and their faculty to be free to research controversial or divisive topics and to exchange and express thoughts and ideas in a zone of privacy, without fear of embarrassment by public disclosure, will damage an essential quality of American public universities.

Media Decisions on a Tough Case

ATI, now called Energy & Environment Legal Institute, has touted the media’s nominal support of its position, but those media groups are not publicizing their joint position. In general this “strange bedfellows” aspect of the story has received scant attention, although journalist Richard Schiffman, in a January 2014 Guardian column, objected to the media coalition’s stance.

The Washington Post’s printed editorial position, just to take one example, illustrates the unusual turns the case has produced. In 2010, the Post’s editorial board weighed in heavily in support of Mann as he fended off what were widely seen as Cuccinelli’s ideologically motivated attempts to gain access to documents. The paper on its editorial page has continued to do so, pointing to what it calls a “witch hunt.” In May 2011, the paper’s editors called for a stop to “harassing climate-change researchers,” specifically citing ATI’s lawsuit and saying the university was “right” to claim a proprietary exemption.

“Academics must feel comfortable sharing research,” the Post’s board wrote then, “disagreeing with colleagues and proposing conclusions — not all of which will be correct — without fear that those who dislike their findings will conduct invasive fishing expeditions in search of a pretext to discredit them.”

And yet the Post’s management and legal department are nevertheless a party to the amicus brief against Mann and the University of Virginia. The issue speaks to the sometimes-conflicting values of editorial, business and institutional interests within media organizations, and also to the seemingly increasingly porous “iron curtain” between editorial and business sides.

Legal Fallout and Next Steps

Academic freedom cases are not new in U.S. courts, and it has not always been groups on the political right probing for information. For example, animal rights activists have been involved in freedom of information suits regarding medical research labs.

But the Mann/UVa e-mails case could prove a new, important test case, and it is already prompting all sides to “armor up,” so to speak. An even more polarized political culture will likely produce only more scrutiny and more ideologically driven requests for materials held by public institutions. One could imagine FOIA requests — already prone to widespread abuse and misuse — becoming an even-more routine tool in public controversies, as the process of filing is made easier and is facilitated by quickly evolving information technologies.

As Stephanie Paige Ogburn of ClimateWire has documented, other climate scientists have been banding together to strategize about how to deal with targeted Freedom of Information requests; groups such as UCS, the American Geophysical Union, Public Employees for Environmental Responsibility, and the Climate Science Legal Defense Fund are offering support to scientists who feel they need help in this area. UCS has been offering a guide to researchers titled “Science in an Age of Scrutiny.”

In recent years, fights over FOIA requests relating to scholars in other fields have taken place at the University of Wisconsin, the University of Michigan, Michigan State, and Wayne State, among others. As some politicians such as Rep. Lamar Smith (R-Tex.) continue to question the scientific studies that underpin certain Environmental Protection Agency decisions — and as the EPA rolls out more aggressive rules on greenhouse gas emissions — more such cases seem likely.

In addition, suspicions about so-called “secret science” by elites in academia will continue to resonate within certain communities that reject the “consensus” science on climate change. A recent subcommittee hearing in the U.S. House of Representatives, led by Smith, was dedicated to just such related questions.

Furthermore, legal observers note that across the 50 states, there remain a wide variety of freedom of information laws. Many states, as in Virginia, provide little explicit protection for scholarly communications at public institutions. Others, such as in Utah, clearly shield university records of many kinds, including “scholarly correspondence.”

Some states are now considering updating their laws in this respect, though experts say there are no easy ways to balance academic freedom and disclosure. In an article for the progressive-leaning American Constitution Society for Law and Policy, Rachel Levinson-Waldman suggests that protections for researchers could be found in the traditional “reporter’s privilege.” In cases going back to the 1970s and 1980s, academics have fended-off requests using a similar legal theory — that their information-gathering is protected. In one case, a Harvard scholar who studied the Vietnam War resisted a federal grand jury subpoena to testify in the Pentagon Papers case, while in 1989 Mount Sinai School of Medicine researchers fought off inquiries about documents from tobacco companies involved in liability lawsuits. But these did not involve freedom of information laws.

“[A]s with the qualified journalist’s privilege,” Levinson-Waldman writes in a policy overview, “First Amendment academic freedom would not necessarily provide absolute immunity from public document requests for faculty materials, but it would be given serious and thoughtful consideration in the balance.”

Finding that appropriate “balance” between the important principles of academic freedom and media access to information — rights seemingly here in conflict — remains the Holy Grail for those deeply committed to both principles. Whether the Virginia Supreme Court can thread that needle remains to be seen.

John Wihbey

A regular contributor to Yale Climate Connections, John Wihbey is an editor and researcher at the John F. Kennedy School of Government at Harvard. (E-mail: john@yaleclimateconnections.org, Twitter: @wihbey)
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9 Responses to Strange Bedfellows … and Fear of Broad Impacts of Mann/UVa Court Ruling

  1. What’s this world coming to? Transparency demanding any and all records? Has there been a crime? I don’t think so. Proprietary exemption being challenged? How could we allow our academic freedom sink to such depths? Next will come demands to supply all
    the contents of attorney/client privilege and those of legal settlements.

    • Elliott M. Althouse says:

      The answer, sir is simple. Anything done on state property is state property and subject to inspection. If academics wish to confer in private, they should use their own email and computer. This is private and can only be accessed by court subpoena. If I feel that my tax dollars were inappropriately used, I have a right through the law or my elected officials to verify this. I pay them, therefore their work must be transparent.

      • C. Field says:

        Bingo. They are employees of a publicly funded institution. They should no more expect their communications to remain shielded from their employers’ eyes, in this case the taxpayers’, than an employee of a private business can expect his business communications to be shielded from the owner.

  2. Leon Goudikian says:

    What would be examples of things that could be found in scholarly email conversations that could cause “fear of embarrassment” if disclosed? Insults directed against someone’s wife? Admitting to shoplifting? I don’t understand Mr. Fontaine’s line of argument. That kind of stuff can be redacted. Or is he saying that throwing ideas back and forth about a scientific topic can lead to deep and damaging embarrassment if the public sees it? If so, what would be an example? And why should it be hidden? It could be something relevant to public policy.

    • Dan Rogers says:

      “What would be examples of things that could be found in scholarly email conversations that could cause “fear of embarrassment” if disclosed?”

      One example would be tacit or explicit admission by Mann that he does not want to distinguish between man-caused global warming or climate change and such warming or climate change which is not being caused by human beings putting greenhouse gases into the atmosphere. The Gore crowd members, including Mann, seem to delight in conflating the two phenomena, and we man-caused global warming skeptics are constantly being identified as people who deny that any climate change at all is taking place. This deceptiveness is wide-spread among the Gore supporters, and it would be interesting to see if any of their internal correspondence gives away that deceptive intent.

      • Paul Quigg says:

        There is indeed an example of Gore’s deceptiveness. “The Revelle-Gore Story” is well known and a libel suit ensued in which resulted in a public apology. The Gore crowd spared no effort or tactic to attack Roger Revelle.
        Revelle was Gore’s teacher and mentor. Gore distorted Revelle’s views in his book, “Earth in the Balance”.

  3. Nullius in Verba says:

    “What would be examples of things that could be found in scholarly email conversations that could cause “fear of embarrassment” if disclosed?”

    Having written emails in scientific discussions in an environment where emails are routinely monitored and subject to review, the primary ‘legitimate’ difficulty I’ve found is when you want to harshly criticise a piece of work while sparing the author’s feelings, especially if you need to maintain a cooperative and friendly working relationship with them. Doing science is a social enterprise. These are people we work with every day, socialise with, ask for help, share data, compete for resources with, and so on. There is a natural psychological pressure to tone down criticism and try to excuse mistakes when you know the email might be seen by its subject. There is a natural social pressure to agree, to fit in with the crowd, and so keep quiet about any ‘heretical’ opinions one might have. The embarrassment is not over revealing them to the public, but revealing them to one’s close colleagues.

    However, this is more than counterbalanced by the advantages of open science. The main one is that scientists working in private can often get sloppy and careless. There’s nothing like knowing that your work is open to scrutiny for keeping the quality high. It blocks any temptation to ignore or conceal contrary evidence or arguments you might have come across. People behave better, and adhere to higher principles, when they know they’re being watched.

    In my experience, nobody really enjoys this level of openness, but with the right culture you can get people to understand the advantages, and to take some pride in the higher quality that results. The main resistance you get is from scientists who have got into sloppy habits elsewhere, and are unwilling or unable to change. What they want is a private arena in which to be sloppy, full of ‘dirty laundry’, and then to dress this up with a professional-looking facade for presentation to the wider world. They’re not allowed to do that.

    But then what we do is not academic study done on obscure and unimportant topics for its own sake that nobody actually cares about. Large sums of Other People’s Money rides on getting the science right – often tens of millions of dollars, sometimes hundreds. The people whose money it is are not amused by or tolerant of sloppy science. It’s a very different culture to the ivory towers of academe.

  4. Borepatch says:

    Overall, this is a great summary of the situation. However, I must point out that the scientists were *not* exonerated. It was found that the CRU did in fact violate the UK’s Freedom Of Information Act, but that because of the way that the law was worded, the statute of limitations had expired. IIRC, the law has since been updated to change this, but it’s not possible to prosecute the CRU team.

    http://www.theatlantic.com/business/archive/2010/01/climate-scientists-violated-britains-freedom-of-information-act/34433/

    This is, of course, tangential to Dr. Mann. However, it appears that Mann’s court filings are trying to use this “exoneration” to apply to him. The investigations only considered the CRU scientists, not Mann.

    http://judithcurry.com/2014/02/22/steyn-et-al-versus-mann/#more-14730

    One way to look at this is that the Press is coming to the conclusions that Dr. Mann is not the FOIA hill to die on.

    • toby52 says:

      That was a minor infringement.

      The substantive allegations of “fraud” were not validated by any investigation since, and there have been several.