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.