Tuesday, May 01, 2012

But There's More

In the trove of advisory opinions from the VA State FOIA Advisory Council, this as it turns out in reply to a request by Dan Vergano for Email between Wegman and Said and Joe Barton's staff (read John Mashey for the details).

Dear Mr. Vergano:

You have asked two questions in regard to the responses you received to a records request you made to George Mason University (the University) under the Virginia Freedom of Information Act (FOIA). One question was in regard to whether the requested records are in fact public records the University must disclose under FOIA, and the other concerned the extent of the search performed by the University in responding to your request. As background, you requested "copies of information and documentary materials, including electronic mail and other communication" related to a climate change report authored by two University professors that was commissioned by the United States Congress in 2005 and released in 2006. You restricted the search by date to cover September 1, 2005 to the present. You specifically requested "background material for the report [that] was provided by a [named] political staffer." The University responded that it did not have the records you sought. The University did provide other documents that indicated that both professors did not use any University facilities, equipment, or resources in performing the work at issue, but instead worked on a pro bono basis at personal expense without state or federal funding. One professor also mentioned that his correspondence regarding the report was not handled through the University electronic mail system, and that the earliest electronic mail message the professor retained on the University system was dated July 20, 2009 (years after the report in question was issued). You were also provided a copy of an electronic mail message dated August 12, 2010 that was received by one of the professors on his University account, apparently because the named political staffer was also included in the distribution of that message.
 Now if you believe that Said and Wegman did not use the University library in compiling their report, well, Eli has a bridge for you and what they looked at could be interesting, but let us not go there, let us go here, which bears directly on the ATI vs UVa case, first the bmmmph
Turning to your questions, you asked whether the records you requested are related to the transaction of public business and therefore subject to release under FOIA, given that the professors were identified in the report as University professors, the report was commissioned by a public body, and that the issue in question is of high public interest. As previously stated by this office, the general policy of FOIA expressed in § 2.2-3700 is to ensure ready access to public records in the custody of a public body or its officers and employees....The affairs of government are not intended to be conducted in an atmosphere of secrecy since at all times the public is to be the beneficiary of any action taken at any level of government. The definition of public record set forth in § 2.2-3701 includes all writings and recordings ... however stored, and regardless of physical form or characteristics, prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business. There is no doubt that the University, as a public institution of higher education established by the General Assembly, is a public body, and by extension, there is no question that a University professor is a public employee. Therefore any records prepared or owned by, or in the possession of a University professor are public records under FOIA if they are in the transaction of public business. However, as stated in the first opinion published by this office, the phrase in the transaction of public business is not defined in FOIA. 
Then a restatement of the conclusions of the previous post at RR
In examining a similar issue, that opinion stated that electronic mail messages between members of a public body that are not related to the transaction of public business are not public records under FOIA, and therefore are not subject to its mandatory disclosure requirements. The fact that electronic mail messages go through a government agency’s electronic mail database does not, by itself, make them public records. It is also the subject of those electronic mail messages that determines their status as public records.
and now the main course
The circumstances you have presented are somewhat different from those in past opinions in that the professors assert they did not use the University's electronic mail system or other University resources or facilities in performing the work at issue. Accepting that assertion at face value, it still is not controlling in deciding whether the records in question are in fact public records subject to FOIA. Even if the professors only used personal electronic mail accounts and privately owned equipment in generating the records, the records could still be public records subject to FOIA because the professors are public employees, the records were prepared and possessed by them, and may have been in the transaction of public business. The final determination again depends on the subject matter or content of the records in question: were they in fact prepared in the transaction of public business? In this case, based on the facts you presented, the report was commissioned by and presented to Congress, not by the University. The professors and the University have asserted in the response to your request that the work performed was not part of the professors' duties at the University. Therefore the records are not in the transaction of the University's or the professors' public business.
You have noted that the work is of great public interest and was commissioned by a public body, which, based on the background provided, appears to be Congress. Given that background, it would appear that the work in question may have been performed in the transaction of public business, but again, it appears to be the transaction of the public business of Congress, not of the University. This situation highlights the fact that under Virginia FOIA, a public body is responsible for providing the records it uses in the transaction of its own public business. As the requested records do not appear to concern or relate to the transaction of the public business of the University, they would not be public records of the University.
which clearly applies to any of Prof. Mann's emails having to do with the IPCC or with other committees external to UVa.  The advisory letter concludes with some discussion of a further point, but Eli shall only set the table there
You also asked whether the University is required under FOIA to perform a search of its own electronic mail servers, as opposed to relying on the professors to provide any responsive records, given that it appears that the University asked the professors to provide responsive records but did not perform an independent search. FOIA does not specify the extent to which a public body must search for records in response to a request. Our research did not reveal any published opinions of the Virginia courts, Attorney General, or this office directly addressing this issue. However, in addressing the costs of a search, this office noted in a prior opinion that the law does not require that a public body make a detailed explanation of how the search was conducted.
While these letters may, indeed according to Brian, have been known to the lawyers on both sides, they certainly shed a different light on the opinions expressed by many.


John Mashey said...

Ahh, yes.
1) Of course, getting info from GMU is not the easiest, especially for anyone out of state and not also a relevant journalist.

2) Nevertheless, people might read pp.16-17 of PDF @ Strange Tales and Emails. I add a few details:

a) README.pdf: seems to have been created by "Edward" 11/04/10.

b) There's a file called "Relevant emails.pdf" not heretofore mentioned.
It has 7 references to ewegman@gmu.edu, and 15 to ewegman@gmail.com, even used as follows:

'Dr. Edward J. Wegman
George Mason University
Department of Computational and Data Sciences
4400 University Drive
MS 6A2
Fairfax, VA 22030-4444
United States
Phone: +1 703 993 1691
Fax: not available
E-mail: ewegman AT gmail.com'

'From: Edward Wegman [mailto:ewegman AT gmail.com]
Sent: Tuesday, September 30, 2008 9:31 AM ...
Dear Friends,
I am pleased to announce the following seminar by Walid Sharabati for
October 3: Multi-Mode and Evolutionary Networks. Walid was offered and has
accepted a position in the Department of Statistics at Purdue University.
This work focuses largely on some mathematical underpinnings of Social
Network Analysis. I hope to see you this Friday.'

It has 39 references to ysaid99 AT hotmail.com.

IN GENERAL, they used off-campus email addresses for much GMU-related effort, including back-and-forth with Federal agencies. But Wegman used gmu.edu for things like Interface conferences and many other activities with GMU affiliation.

3) Actually, as Wegman wrote to the GMU FOIA officer, Phil Hunt, 10/19/10:

'1. This is intended as a recapitulation of our conversation this morning at approximately 10:00 am. As I mentioned, except for an initial meeting on the GMU campus with Peter Spencer, the work in preparing the testimony was done pro bono and was not a part of my GMU duties. There was no compensation and this work was not done as a part of any state or federally funded grant or contract. The work was done offsite.

2. Although I still maintain a GMU email account, the correspondence concerning our testimony was not handled through GMU email. My GMU email was downloaded to my notebook computer and was erased from the GMU mail server. The earliest GMU email I have a record of is dated July 20, 2009.'

Anyway, it seems that the gmail account really started getting used sometime in 2005.

carrot eater said...

To further Eli's little sarcastic diversion: I thought we were deciding that they didn't use the library at all - they just wikipedia'd stuff and copied/pasted, no? Don't need to VPN for the academic access for that.

Pinko Punko said...

I wonder if Wegman talks about this work as service to the profession in his CV. Would this not indicate the he considered it part of the performance of his professorial duties?

Anonymous said...

In the interest of the best science and transparency, and to allow a full "audit" of Dr. Wegman's work on the his report to congress, why wouldn't Wegman want to provide to Mr. Vergano all of the e-mails from his private accounts to and from Mr. Spencer and Joe Barton's staff, and others with whom he collaborated (Said, Scott, and various conservative "think tanks") in preparing the sad result? After all, he shouldn't have anything to hide, should he? Or perhaps a noble "whistleblower"* will come forward and "release the data!" so Steve McI and others can give it a thorough auditing.
* I would never advocate hacking into someone's private e-mails.
Taylor B

Rattus Norvegicus said...

Sauce for the goose and all that. This also shoots down a meme I see perpetrated by ATI that GMU turned over all of Wegman's emails as a result of Vergano's FOIA requests....

John Mashey said...

Well, let's see.
The team for the Wegman Report included;

1) Wegman, GMU Professor.

2) Yasmin Said, affiliated with GMU on report, and as noted, on way back from JHU.

3) David Scott, Rice.

4) Unknown 4th person, who dropped out.

Contributions Ack'd from:

a) Denise Reeves, MITRE
b) John T. Rigsby III, Naval Surface Warfare Center

Of course, both Reeves and Rigsby were also grad students with Wegman at the time.

See this note.

Wegman had claimed that he couldn't provide code that had been developed by current/past students for Navy, had to await approval for release.
have it both ways: pro bono ... but using Navy code.

See Strange Tales and Emails for mentions of Reeves ... sure sounds like her efforts were GMU-connected.

Anonymous said...

In my book MITRE means Schlessinger

John Mashey said...

Schlesinger, fond of Crichton's "State of Fear", yes, see Weird Anti-Science, p.4 and do a full search for Schlesinger (30+ hits).

But I'd guess there's little direct connection with an employee still working part-time on her PhD at the time, blamed for everything by Wegman.

Anonymous said...


... This also shoots down a meme I see perpetrated by ATI that GMU turned over all of Wegman's emails as a result of Vergano's FOIA requests....

I am glad you mentioned that becuase I read that on the web. In fact, I am sure there was a report that the ATI lawyer displayed a copy of Mann's recent book with pages marked, where Mann is alleged to have quoted from the Wegman e-mails. Can't recall where I read that, but Mann (as far as I could see) has no quotes from Wegman's e-mails at all in his book. Seems to be another pretend-honesty acts that those right-wing "Institutes" are so good at.


Rattus Norvegicus said...

This is interesting. I suggest that you look at Schnare's fabulist interpretation of this starting around page 80.

EFS_Junior said...

Calling John Mashey, calling John Mashey, ...

Well anyways, WTFUWT? has an ATI vs UVa post today;


Where Tony the Lying Tiger states;

"I mean seriously, the “hockey stick” is a world known bit of science, what could possibly be so “proprietary” that is warrants an exception for Mann where Wegman, Singer, Michaels and others at UVa have none?"

So Wegman never went or worked at UVa.

So Michaels never went or worked at UVa.

So who exactly are the "others" anyway? I need actual names for those "others" and were those "others" explicitly at UVa?

So Singer did work at UVa, but when did he last teach an actual course at UVa? From Singer's own CV it would appear that a time frame as early as 1984, or as late as 1987, would be most likely.

Now I know that John has done a lot of work here, so I'm wondering when was the last climate science paper of Singer's that explicitly used the UVa moniker? It can't possibly be after 1994 according to Singer's own CV.

But all three (Wegman, Michaels and Singer) do have strong ties to GMU.

Finally, what specific VA FOIA have been launched against Wegman (not counting what Eli has posted here, as the congressional Wegman testimony is more a federal FOIA issue than a VA state issue, IMHO), Michaels (GMU), Singer (either UVa or GMU) and "others" (either at UVa or GMU or elsewhere in the VA state education system?

I can only take so much of that "fake skeptic" handwaving, if you know what I mean.


EliRabett said...

Michaels worked at UVa for a long time as Va State Climatologist, and there lies a long and strange tale.

Brian said...

Anon and Rattus: Schnare definitely claims before the court that the emails were quoted in Mann's book, so we've got a factual dispute.

Schnare doesn't say Vergano got everything he asked for though, he just skips over that issue.

Reading further in Rattus' link, I didn't know that Mann had already filed the motion to intervene when he got the copies of the emails - that might help overcome the argument that UVa had waived the right not to disclose.

Rattus Norvegicus said...


I would think the fact that UVa claims that they actively solicited Mann's participation might tend to blunt Schnare's argument that Mann is an adverse party in the action.

I also believe that the judge ruled a few days (a week?) after the argument. IIRC, ATI lost and has appealed.

Rattus Norvegicus said...

In which Judith Curry shows she has been pwned by the deniers (check out the ATI claims). I just picked up my copy of Mann's book and read the chapter dealing with Wegman (pp 160-175) and can assure you that he neither quotes nor refers to any emails from Wegman. They just flat out lied.

John Mashey said...

I don't have time to check now, but Mike does refer to Vergano pieces, maybe this which refers to FOIA stuff.

You want to check the Notes section carefully, also.

Rattus Norvegicus said...


The claim was specifically in regards to his recent book "The Hockey Stick and the Climate Wars". In it he did quote a single sentence from an email from Wegman to Waxman which Waxman forwared to him. What Schnare was claiming was pretty well false, I could find nothing in the book which quoted extensively, as implied by Schnare, from Vergano's FOIA'd emails .

I did check the notes (after I was embarrassed by not checking them) and the only place I did find him quoting a Wegman email was note 54 for chapter 11 which was forwarded from Waxman after Wegman sent it to him (Waxman) in response to questions about his methodology. Let us just say that he appears to have been less than responsive. Schnare remains as much a liar on this point as Joe McCarthy.l

John Mashey said...

I would not be likely to believe Schnare much. I just couldn't recall if Mike had every quoted nay of the FOIAs, or pieces that did quote the FOIAs.

Brian said...

Rattus - it sounds like the two email refs you found came from Waxman, not the FOIA request (how do you know that Mann got them from Waxman?).

If you're pretty sure there's nothing else, it might be worth an email to the attorneys.

It would be hard to get an ethics/contempt charge out of this because Schnare would just claim he mistook the above two emails as being from the FOIA, but it still does make him look sloppy.