Technical and Esoteric and No Part of Chris Horner's Business

Following up on having their teeth kicked in by the Virginia Supreme Court in their quest for Mike Mann's Emails, Chris Horner and his sidekick David Schnare,  have filed a number of FOIA requests seeking Email from various climate scientists.  Strangely, nowhere can Eli find Roger Pielke Jr. or Bjorn Lomborg railing against that dynamic duo, now doing business as the Energy and Environmental Legal Institute.  Given the rapidity of how they change the name of their shells, Eli might think that business is not excellent.

Today the Union of Concerned Scientists brings word of the Arizona Superior Court handing another set of dentures to the gentlebunnies from E&E (as the Court labels them, perhaps accidental but quite appropriately) .  It was a remarkable decision.

The defendants, the Arizona Board of Reagents, had provided the Court a sample of 90 representative Emails from 1700.  The Court, kinda was like an undergrad with Spring Break reading assignments

The volume and complexity of the records at issue is daunting. Initially, AzBOR provided the Court a CD with approximately 90 emails described as representative of all those requested. While reviewing 90 emails may seem like a relatively easy task, such was not the case here. The emails ranged from one or two pages to multiple pages to at least one exceeding 800 pages in length. Further, to describe the content of the emails as technical and esoteric is an understatement. Many hours were spent reviewing the emails and, by no stretch, was the Court able to fully comprehend the substance of the emails.

At which point everybunny agreed that the 90 Emails were representative and that they did not need a special master or to spend their lives litigating each Email.  The question was, did the  Regents properly withhold the Emails from E&E's FOIA request.

The answer of the Court was comprehensively yes, but for interesting reasons.  Arizona law holds that

“ . . ., the law also recognizes that an unlimited right of inspection might lead to substantial and irreparable private or public harm; thus, where the countervailing interests of confidentiality, privacy or the best interests of the state should be appropriately invoked to prevent inspection, we hold that the officer or custodian may refuse inspection.” 141 Ariz. at 491.

In other words, using FOIA as harassment is not allowed if it causes public or private harm.  Among the categories that the Court held were not subject to inspection were Emails which contained student and personal information, correspondence with attorneys, information about on going research projects and information about prepublication peer review.

What is left are Emails about "prepublication critical analysis, unpublished data, analysis, research, results, drafts, and commentary".  The Court narrowed the question about this to whether the Regents withholding the documents was capricious or arbitrary and answered that

When the release of information would have an important and harmful effect on the duties of a State agency or officer, there is discretion not to release the requested documents. Arizona Board of Regents v. Phoenix Newspapers, Inc., 167 Ariz. 254, 257-58, 806 P.2d 348, 351-52 (1991). After weighing the evidence presented in this matter, the Court cannot conclude that by withholding the remaining emails for the reasons stated, AzBOR abused its discretion or acted arbitrarily or capriciously.  

Schnare and Horner lose.

This is, IEHO, a very important statement that the government of the State of Arizona and its people have a vital interest in supporting the research of scientists at state universities and in state agencies and assuring that they cannot be harassed by those engaging in hackery for fun and profit that Rick Perlstein calls the long con.

And yet this stuff is as important to understanding the conservative ascendancy as are the internecine organizational and ideological struggles that make up its official history—if not, indeed, more so. The strategic alliance of snake-oil vendors and conservative true believers points up evidence of another successful long march, of tactics designed to corral fleeceable multitudes all in one place—and the formation of a cast of mind that makes it hard for either them or us to discern where the ideological con ended and the money con began.