The Virginia Supreme Court’s April 18 opinion supporting climate scientist Michael Mann and the University of Virginia (UVa) establishes broad protections in that state for researchers and their e-mail communications.
|Mann’s court victories seen as gains for academic freedom, but media concerns fear less access to protected communications.|
The ruling comes at the expense of what some friend-of-the-court media interests had argued are important press access issues.
The Virginia Supreme Court interpreted the state’s higher education “research exemption” from freedom of information requests to include any disclosure that would do “harm to university-wide research efforts, damage to faculty recruitment and retention, undermining of faculty expectations of privacy and confidentiality, and impairment of free thought and expression.”
A conservative think tank and a state legislator had sought access to thousands of e-mails from Mann, who had been on the UVa faculty from 1999 to 2005. The current suit follows a similar one that had been brought by then Virginia Attorney General Ken Cuccinelli, whose case seeking Mann’s e-mails was dismissed in 2012 on technical grounds.
“This is a victory not just for me, but for my fellow scientists who might have been fearful that they too could be targeted by deep-pocketed special interests looking to discredit their research,” Mann told The Yale Forum. “I hope it will send a message to researchers around the country that the courts recognize the importance of academic freedom, and there are protections in place to make sure we cannot be hounded by bad actors and industry front groups.”
Media Groups Lose on Definition of ‘Proprietary’
The task before the court involved interpreting ambiguous legislative language intended to protect information, data, and records of a “proprietary nature.” A coalition of major media groups — including the Associated Press, Reuters, NPR, Dow Jones, Politico and The Washington Post — had joined efforts and penned a friend-of-the-court brief urging that this type of e-mail be subject to disclosure.
“We were sorry to see the court adopt the broader definition of ‘proprietary,'” Emily Grannis, an attorney for the Reporter’s Committee for Freedom of the Press, wrote in an e-mail, “but we were very encouraged to see the thorough analysis and obvious attempt to keep the overall exemption narrow.” She noted that the Virginia court did spell out additional factors that Virginia’s public universities must prove before they can withhold information. Still, she said, it’s “always disappointing to see a government agency opt for secrecy over transparency.”
The court also ruled that requesters under the state’s freedom of information laws could be asked to pay redaction fees incurred by the university.
The ruling is binding for Virginia’s public universities; it changes nothing for private colleges and universities, which are generally not subject to freedom of information laws. But Peter Fontaine, the lawyer who represented Mann, now at Penn State University, said he hopes it might “serve as a precedent for other states struggling to defend their public universities and faculty against this pernicious assault on scientific freedom under the guise of open government.”
The practical effect of the decision for other scientists outside the state is that their correspondence with researchers at Virginia’s public universities is now likely protected. However, that is not necessarily the case for all public universities, which are currently subject to a patchwork of state freedom of information laws.
Michael Halpern, of the Union of Concerned Scientists — which had strongly supported Mann’s case — wrote in a statement that he believes the case should start a nationwide conversation about the balance between accountability and protecting researchers’ freedom: “As a start, all state legislatures should examine their open records laws to ensure that the appropriate exemptions exist without being so broad as to compromise accountability.”