Wednesday, April 18, 2012

The Judge Doesn't Want to Be Reversed

Tom Jackman writing for the Washington Post reports on yesterday's hearing on the FOIA demand from Chris Horner to UVa for Mike Mann's Emails.  As Jackman points out the Judge is interested in building a case that the inevitable appeals court can use and has asked for briefings on a number of issues:

Sheridan acknowledged that however he rules, the case is headed to the Virginia Supreme Court to resolve several key FOIA issues the case raises:
• Are a university professor’s e-mails subject to a FOIArequest, and can a university withhold them?

• If a FOIA request is denied or material is withheld as “exempt” from the law, can the party appealing that exemption to the courts use the pre-trial discovery process as it is used in other civil cases?

• If the documents sought in a FOIA request are given to another person, does that mean the exemption is waived and the documents must be given to all?

So the judge said he wants to compile a fully briefed, fully argued case that doesn’t go down a side alley before it ends in Prince William Circuit Court, and moves on to Richmond.
Some new charcoal was tossed on the fire 
• Though Mann did not join the suit until November, U.Va. provided the 12,000 withheld e-mails to his lawyer, Peter Fontaine, last September. Fontaine said he needed the e-mails to prepare his argument, and to prepare the sample e-mails to submit to the judge. David Schnare, ATI’s lawyer, said Mann was not entitled to the e-mails as an ex-employee, a non-party to the suit and a non-resident of Virginia. Once they were released to someone like Mann, the FOIA exemption was waived and the e-mails should be released, Schnare argued.

• University lawyer Madelyn Wessel argued that Mann and U.Va. were on the same side in the suit, and that U.Va. reached out to him to suggest he assist in the preservation of his e-mails. Schnare responded that the University made no such gesture when Greenpeace sought the e-mails of two other U.Va. professors who were skeptical of climate change claims.

• Schnare also noted that when USA Today last year requested the correspondence of George Mason University professor Edward Wegman, who has attacked climate change science, GMU promptly provided 3,000 pages to the newspaper free of charge. Mann then used some of Wegman’s correspondence in his new book, “The Hockey Stick and the Climate Wars.” Schnare waved a copy of the book, with red tabs noting the references to the released information, at Judge Sheridan.

• Schnare also pushed for release of the e-mails in pretrial discovery, along with depositions and other standard motions practice in a Virginia civil case. University lawyer Richard Kast attacked that notion as an end run around the FOIA law. “If this made sense,” Kast said, “all a person would have to do is file a petition [appealing a FOIA denial], and then file a production [of documents] request.”
You can get an idea of some of this from an interchange between the lawyers in the Roanoke Times (yes this case is being fought in the newspapers and the courts).    Bottom line
Kathi Wescott for the AAUP: Unpublished scholarly communications should not be made available through public records requests because these communications go to the very heart of the academic discovery process. A process so vital to the development of new, unique and sometimes controversial scholarship and teaching that it is not only protected by Academic Freedom but also by Virginia’s own public records law. Virginia’s law exempts data and records related to scholarly work conducted at public colleges and universities “where such data, records or information has not been publicly released, published, copyrighted or patented.”
 It appears as though ATI seeks to intrude into those communications that ultimately were never published at the conclusion of Professor Mann’s research. These types of “behind the scenes” communications allow faculty members to refine their work and ultimately publish that information which has been peer reviewed and found to be sound. Professor Mann’s climate research has been independently reviewed more than a half dozen times with every panel concluding that his work is and was sound. The distorted picture painted by ATI and other interested parties has not panned out. Yet despite all evidence to the contrary, ATI continues to pursue legitimately protected communications that are essential to the development of new research whose conclusions benefit all of society. It is hard to view these efforts as anything but an attempt to chill research with which ATI and others disagree.


Anonymous said...

The elephant in the room is that the ATI only want the e-mails so they can leak passages selectively to the media. After that, they will "sincerely apologise".

Anonymous said...

First: I'm of mixed opinion as to whether FOIA should apply to university professors. They are paid from public funding, but I feel that given the nature of the job there isn't a great public interest in most emails: first, they aren't involved in making laws, second, I think an argument can be made that academic investigation would suffer from being under a potential microscope. The exception to this is if there is evidence that moneys are being spent improperly: but that is where an IG or Attorney General should have a role (and not in the Cuccinelli fishing expedition fashion, but rather in the GSA 800,000 dollar party fashion).

Second: I don't know about the letter of the law, but it seems sensible to me that the person who was the author or recipient of the emails in question should have a privileged position with respect to being able to see the email trove. The fact that skeptic sites are jumping up and down saying "Mann got to see them! Therefore, the glove fits!" without acknowledging Mann's special position are, once again, showing that they aren't real skeptics. (Now, it is possible that the letter of the law doesn't have room in it to make such an exception, but I don't think that the skeptics have any better sources of lawyerly knowledge than I do).

Third: to the extent that the University system is treating the Mann FOIA differently than the Wegman or Michaels FOIAs, that is unfortunate. I can think of some reasons: Wegman was actually shown to be guilty of plagiarism, and was involved in a Report to Congress that is a different beast than scholarly publications; maybe the Mann FOIA was more kitchen-sink than the Wegman FOIA?; and the Michaels emails never ended up being released, so there is no indisputable evidence that his emails were less aggressively defended. But I don't know enough about any of the three cases to be able to judge why and whether they might be different.


Brian said...

Waiver issue is serious - I used the same thing to stop secret negotiations between land use agencies and developers here in California.

Waiver because the emails went to Mann before joining suit is a technicality - I don't know how it'll be handled, but it's a technicality.

OTOH, waiver because the emails were to and from people outside of UVa isn't a technicality.

J Bowers said...

Curious how Schnare frames pretty much everything academic within the context of a free market ideology and system, yet uses Lysenkoism when it suits his argument, although I fail to see how it's possible for Lysenkoism to operate successfully within the framework of a free market.

John Mashey said...

1) Schnare's description of GMU's goodness on FOIA is, shall we say,incomplete.

1) There have been several sets of FOIAs. The one in 2010 was quite specific to the CSDA article and its 3 Federal funding agencies, i.e., on a topic for which there was already strong evidence of plagiarism in a Federally-funded paper

2)Among other things, he forgot to mention that no later than Fall 2005, Wegman and Said were using offcampus email addresses (gmail, hotmail) for most of their communications, even those for work in which they claimed GMU affiliations, like the Wegman Report or the CSDA article.

3) Of course, Schnare is yet another GMU J.D., along with Cuccinelli and Milton Johns, who is Wegman's lawyer. To be fair, unlike Johns, as far as I know, Schnare never was Cuccinelli's law partner.

4) Of course, it is unclear why Schnare thinks he's qualified to speak credibly about competitive free markets. Maybe affiliation with a thinktank automagically confers such? Oddly, such credentials don't carry much weight around here in Silicon Valley.

Rattus Norvegicus said...

David Appel links to a story in the Washington Times (of all places) reporting that the judge subsequently threw ATI out on their asses. On to the appeals!