In defense of academic freedom against denialist FOIA inquisition tactics

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Univ. of Virginia

The American Association of University Professors, the Virginia ACLU, the Union of Concerned Scientists, and nine other groups have called on the University of Virginia to “[balance] the interests in public disclosure against the public interest in academic freedom” in its response to a Virginia Freedom of Information Act (VFOIA) request related to the work of climate scientist Michael Mann. Climate Science Watch joined in the letter to UVa President Teresa Sullivan. The FOIA request comes from a ‘free market’ advocacy group staffed by global warming denialists. It is identical in substance to a still-unresolved Civil Investigative Demand by Virginia Attorney General Ken Cuccinelli, and includes Dr. Mann's correspondence with 39 other scientists. It also mirrors inquisition tactics being used against professors in the midwest in connection with labor issues and the battle of Wisconsin.

Full text of the letter and list of signers:    

April 14, 2011

Teresa A. Sullivan, President
University of Virginia
Madison Hall
P.O. Box 400224
Charlottesville, VA 22904-4224

 

Dear President Sullivan:

We understand that in January 2011, the American Tradition Institute Environmental Law Center, Virginia Delegate Robert Marshall, and one other Virginia resident affiliated with the Competitive Enterprise Institute filed a request with the University of Virginia under the state’s Freedom of Information Act (FOIA). The request is substantially similar to the Civil Investigative Demands issued by Virginia Attorney General Kenneth Cuccinelli to the University of Virginia for a variety of records related to Professor Mann’s research, and, like the CIDs, this request encompasses a broad array of materials produced and exchanged by Professor Mann in the course of his work as a professor and scholar working on topics related to global climate change.

Although this request was made several months ago, it appears to bear similarities to the FOIA requests recently served upon the University of Wisconsin-Madison and the labor studies departments at the University of Michigan, Michigan State University, and Wayne State University, seeking emails exchanged by professors in the course of their scholarly work.

As you may know, after careful consideration of the FOIA requests, including a review of the emails for any violations of Wisconsin law or university policy (of which it found none), the University of Wisconsin-Madison conducted a balancing test and concluded that it could appropriately exempt “private email exchanges among scholars that fall within the orbit of academic freedom and all that is entailed by it.” As Chancellor Biddy Martin explained in her statement of April 1, 2011:

Academic freedom is the freedom to pursue knowledge and develop lines of argument without fear of reprisal for controversial findings and without the premature disclosure of those ideas...

When faculty members use email or any other medium to develop and share their thoughts with one another, they must be able to assume a right to the privacy of those exchanges, barring violations of state law or university policy. Having every exchange of ideas subject to public exposure puts academic freedom in peril and threatens the processes by which knowledge is created. The consequence for our state will be the loss of the most talented and creative faculty who will choose to leave for universities where collegial exchange and the development of ideas can be undertaken without fear of premature exposure or reprisal for unpopular positions.1

The undersigned organizations, dedicated both to academic freedom and the exchange of scholarly and scientific ideas and to the critically important ideals of government transparency that are embodied by FOIA, urge the University of Virginia to follow Chancellor Martin’s lead in balancing the interests in public disclosure against the public interest in academic freedom, which the University of Virginia has recognized in its faculty handbook as “an essential ingredient of an environment of academic excellence.”

In addition, the Virginia FOIA statute expressly provides an exemption for “data, records or information of a proprietary nature produced or collected by or for faculty or staff of public institutions of higher education . . . in the conduct of or as a result of research on medical, scientific, technical or scholarly issues . . . where such data, records or information has not been publicly released, published, copyrighted or patented.” Furthermore, the federal Family Educational Rights and Privacy Act compels the university to keep private communications related to students and implies similar protections for potential students. The undersigned organizations therefore also urge the University of Virginia to carefully consider whether the materials sought fall within these statutory exemptions.

As the United States Supreme Court said in the seminal case of Sweezy v. New Hampshire, “The essentiality of freedom in the community of American universities is almost self‐evident. . . . To impose any straitjacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. . . . Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will die.”

Please do not hesitate to call upon us if we can be of assistance in your assessment of this FOIA request and your balancing of the twin values of academic freedom and government transparency.

Sincerely Yours,

Alliance for Justice
American Association of University Professors
American Civil Liberties Union of Virginia
Center for Inquiry
Climate Science Watch
Council of Environmental Deans and Directors
National Coalition Against Censorship
National Council for Science and the Environment
People For the American Way
Robert O’Neil, Director of the Thomas Jefferson Center for the Protection of Free Expression
The Ornithological Council
Union of Concerned Scientists

 

cc:
Richard Kast, Associate General Counsel
Carol Wood, Associate Vice President for Public Affairs
 

1 Chancellor Martin’s statement is available on the University of Wisconsin-Madison’s website, at http://www.news.wisc.edu/19190. In addition, see http://www.news.wisc.edu/19196 for a letter from the office of the general counsel at the University of Wisconsin setting out the specific exemptions and the university’s justification for invoking each.

Press release by the Union of Concerned Scientists

April 14

Groups Urge University of Virginia to Defend Academic Freedom in Response to Request for Scientist's Records

Request for Scientist's Records Closely Mirrors Subpoena from VA Attorney General Ken Cuccinelli

WASHINGTON (April 14, 2011) — Twelve public interest organizations today sent a letter to University of Virginia (UVA) President Teresa Sullivan urging the university to “[balance] the interests in public disclosure against the public interest in academic freedom” in its response to a Virginia Freedom of Information Act (VFOIA) request related to the work of a climate scientist who used to work at the school.

The request, made on January 6 by the American Tradition Institute, a relatively new free market advocacy organization, seeks a broad range of documents related to scientist Michael Mann’s tenure at UVA, including emails, grant applications, and even handwritten notes. To date, the university has not indicated which of Mann’s documents would be exempt from the request.

The request is similar to the civil subpoena issued last year by Virginia Attorney General Ken Cuccinelli for Mann’s documents. The subpoena, technically called a civil investigative demand, was widely criticized as an attack on academic freedom. The university challenged the subpoena, and a Virginia circuit court set it aside in August 2010. Cuccinelli is appealing that decision to the Supreme Court of Virginia.

The Union of Concerned Scientists (UCS), a signatory to the letter, called on UVA to be transparent about how it handles such requests under Virginia’s open records law, and said that it is critical for the university to protect academic freedom.

“While we need freedom of information laws to hold public officials accountable, the law has exemptions for good reason,” said Francesca Grifo, director of UCS’s Scientific Integrity Program. “In its response, UVA should be sure to uphold professors’ rights to freely exchange ideas with their colleagues and students. Scientists should be able to challenge other scientists’ ideas and discuss their preliminary thinking before their analyses are complete and published.”

The university’s response to the VFOIA request could undermine the scientific process, according to the American Association of University Professors (AAUP), another signatory to the letter. "We are urging the University of Virginia to stand with the University of Wisconsin by publicly resisting the threat to scholarly communication and academic freedom represented by the concerted effort to obtain faculty emails,” said AAUP President Cary Nelson. “Whatever people may think of climate research, the climate for academic freedom must not be allowed to deteriorate. If scientists think every email they send may be subject to a politically motivated attack, it will create a chilling effect on their discourse and hurt scientific research."

The letter was signed by AAUP, the Alliance for Justice, the American Civil Liberties Union of Virginia, the Center for Inquiry, Climate Science Watch, the Council of Environmental Deans and Directors, the National Coalition Against Censorship, the National Council for Science and the Environment, the Ornithological Council, People for the American Way, UCS, and Bob O’Neil, director of the Thomas Jefferson Center for the Protection of Free Expression.

The attack on Mann in Virginia is similar to the recent attack on University of Wisconsin Professor William Cronon. The Wisconsin Republican Party submitted a request for Cronon’s records from the university after he wrote an article examining the activities of the American Legislative Exchange Council, an industry-funded organization that seeks to influence state laws. The university released a statement articulating its commitment to academic freedom and listed exemptions under the law, including correspondence with students and private email exchanges among scholars. There is yet another similar case in Michigan, where the Mackinac Center for Public Policy has requested documents related to the work of labor professors at three universities. 

Grifo commended the University of Wisconsin for how it handled the state Republican Party request and urged UVA to follow suit. “Given the increased scrutiny academic institutions are facing from political groups, it is imperative that universities be clear about how they are complying with open record laws,” she said. “UVA should follow the University of Wisconsin’s lead and protect academic freedom while being careful and clear about the standards it is using to determine which documents to release. Wisconsin found a way to walk the line, and Virginia can, too.”

Round up the usual suspects department:  The American Tradition Institute’s Director of Litigation is Christopher Horner, a lawyer long associated with the Competitive Enterprise Institute. CEI, an anti-regulatory ‘free market’ policy group, has been prominent in fronting for corporate interests in pushing the global warming denialist message. Horner and CEI were instrumental in pushing the Bush Administration to suppress the first National Climate Assessment. Horner is the author of Red Hot Lies: How Global Warming Alarmists Use Threats, Fraud and Deception to Keep you Misinformed.

ATI has strong ties to the global warming disinformation campaign. Its executive director previously worked for the Heartland Institute, an Exxon-supported organization that sponsors an annual climate change denialism summit. Horner reportedly said the American Tradition Institute receives no money from affiliates of ExxonMobil or Koch Industries, though “we would welcome their support.” 

Michael Mann has commented: “There is substantial case law defending scientists and academics against such thinly-veiled attempts to suppress scientific inquiry by harassing individual scientists. I suspect that UVA, as other great universities have in the past, will respect that tradition and stand up against these transparent attempts not just to bully me, but to thwart the progress of science.”

As with the original demand by Virginia AG Cuccinelli, among the documents requested by the ATI FOIA are all e-mail and other communications to or from Mann and 39 other named scientists and scholars:

DOCUMENTS TO BE PRODUCED

1. All documents that constitute or that are in any way related to correspondence, messages or e-mails sent by Dr. Michael Mann to, or received from, any of the following persons:

Dr. Caspar Ammann
Dr. Raymond Bradley
Dr. Keith Briffa
Dr. John Christy
Dr. Edward Cook
Dr. Thomas Crowley
Dr. Roseanne D’Arrigo
Dr. Valerie Masson-Delmotte
Dr. David Douglass
Dr. Jan Esper
Dr. Melissa Free
Dr. Chris de Freitas
Dr. Vincent Grey
Dr. James Hack
Dr. Malcolm Hughes
Dr. Eystein Jansen
Dr. Phil Jones
Dr. Thomas Karl
Dr. Otto Kinne
Dr. A.T.J. de Laat
Dr. Murari Lal
Dr. Stephen Mackwell
Dr. Glenn McGregor
Stephen McIntyre
Dr. Ross McKitrick
Dr. Patrick Michaels
Dr. Jonathan Overpeck
Dr. Tim Osborn
Dr. Roger Peilke, Jr.
Dr. Benjamin Santer
Dr. Gavin A. Schmidt
Dr. Stephen Schneider
Dr. Olga Solomina
Dr. Susan Solomon
Dr. Kevin Trenberth
Dr. Eugene Wahl
Dr. Edward Wegman
Dr. Thomas Wigley
Dr. Vincent Gray, and
All research assistants, secretaries or administrative staff with whom Dr. Mann worked while he was at the University of Virginia. ...

A few earlier posts, which contain additional relevant links:

Climate Science Watch Update - March 18, 2011 (Virginia AG Cuccinelli’s Michael Mann inquisition goes to the state Supreme Court)

Free the Cuccinelli 40: Virginia AG demands e-mails of Michael Mann and 39 other scientists

Michael Mann in Washington Post op-ed: “Get the anti-science bent out of politics”

“This report will be attacked” – Statement to the National Climate Assessment committee

This entry was posted in Attacks on Climate Science and Scientists, Climate Science Watch. Bookmark the permalink.

One Response to In defense of academic freedom against denialist FOIA inquisition tactics

  1. Pingback: Whose freedom is it? « constitutionunitdotcom

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