Letter calling on Univ. of Virginia to prevent inappropriate open records disclosure of climate scientists’ exempt emails and documents

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University of Virginia

Climate Science Watch joined the American Association of University Professors, the American Geophysical Union, and the Union of Concerned Scientists in calling on the University of Virginia to revise an agreement that would needlessly and inappropriately give the American Tradition Institute access to personal email correspondence and other documents from climate scientist Michael Mann and more than thirty other scientists. The University should honor its earlier commitment to utilize “all available exemptions” in responding to the request under the Virginia Freedom of Information Act by ATI, a ‘free market’ ideology group and legal arm of the global warming denial machine.

Full text of the letter:

August 10, 2011

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

Dear Dr. Sullivan:

As you know, we are among many organizations and concerned citizens who have followed with great interest the University of Virginia's response to efforts by both Virginia Attorney General Kenneth Cuccinelli and the American Tradition Institute (ATI) to access personal email correspondence and other documents from Dr. Michael Mann and more than thirty other scientists. We appreciate the university’s decision to challenge Mr. Cuccinelli's Civil Investigative Demands. We also appreciate the commitment you made in your April 21, 2011 letter to the American Association of University Professors (AAUP) and other organizations to utilize “all available exemptions” in responding to ATI's request under the Virginia Freedom of Information Act.

However, we are concerned that the May 24, 2011 agreement between the university and ATI gives ATI needless access to the requested documents. We believe the agreement is in conflict with the university’s previous statements and actions on this issue and that it threatens the principles of academic freedom protecting scholarly research. Furthermore, the agreement cuts against accepted practice in Virginia for responding to open records requests. The university should seek to improve the agreement to better protect scientists from harassment and intimidation.

We fully embrace the university's responsibility to respond appropriately to open records requests. Freedom of information laws are critical for keeping public institutions and their employees accountable to the people who support them. We also support the university’s equally important obligation to protect its employees' privacy and preserve researchers' ability to privately and freely correspond with one another.

Unfortunately, the university’s agreement with ATI does not adequately balance these two responsibilities. We find it troubling that the agreement would allow ATI lawyers, including the very individuals who filed the open records request, to review all documents in the university’s possession, including material which will ultimately be exempt from disclosure. While the agreement asserts that ATI representatives would be under a gag order regarding exempt documents, we are concerned that giving requesters this level of access sets an entirely new precedent and would create a chilling effect for current Virginia researchers.

The established practice in Virginia Freedom of Information Act cases which involve privacy rights is to prepare an indexed summary of potentially exempt documents and the specific exemption that applies. Then, if there remains a dispute over the basis for the exemption, the judge can review the contested records privately, or in camera, and make a ruling without harming any privacy interests. This is the favored practice recommended by the Virginia Supreme Court in Paul C. Bland vs. Virginia State University, 272 Va. 198, 630 S.E.2d 525 (2006).

Further, there is ample evidence that many if not all of the documents requested by ATI will ultimately be exempt from disclosure. The Washington Post in a May 29, 2011 editorial wrote that, “...a university spokesperson said that U-Va. anticipates that most of the documents at issue will be exempt under a statute that ‘excludes from disclosure unpublished proprietary information produced or collected by faculty in the conduct of, or as a result of, study or research on scientific or scholarly issues.’”

Additionally, the Virginia Freedom of Information Advisory Council has issued guidance regarding the “working paper” exemption to records requests. This exemption protects from mandatory disclosure the working papers and correspondence of the presidents of Virginia’s public universities and other public officials. Like the scientific research exemption, the working paper exemption is grounded in the interests of privacy and the notion that internal communications and deliberations of public employees are protected to facilitate creativity and the free exchange of ideas.

According to the Advisory Council, “the working papers exemption was designed to provide an unfettered zone of privacy for the deliberative process...a policy determination that protecting decision-making creativity with an ongoing zone of privacy ultimately benefits the public by encouraging the free-flow of ideas by government employees and officials” (AO-17-04). It would be strange, indeed, if your own email correspondence is protected against disclosure but Dr. Mann’s emails are not.

Finally, the university should keep in mind that the agreement risks disclosing emails to ATI among Dr. Mann and his students. As you acknowledged in your letter to AAUP and other groups, the university has a commitment to protect certain correspondence under the Family Educational Rights and Privacy Act.

Moving forward with the agreement as it stands will send scientists at public institutions a message that communicating frankly with colleagues carries significant risk. Therefore, we hope the university will modify its agreement with ATI to adequately protect the privacy of scientists involved and uphold the principles of academic freedom which you have previously articulated.

We look forward to your timely response.

Sincerely yours,

American Association of University Professors
American Geophysical Union
Climate Science Watch
Union of Concerned Scientists

CC: Carol Wood, assistant vice president for public affairs
Richard Kast, associate general counsel
Susan Harris, secretary to the Board of Visitors

The letter is online here.  The online document includes additional material pertaining to the case of Paul C. Bland v. Virginia State University and to the Virginia Freedom of Information Advisory Council.

Washington Post, Virginia Politics blog coverage, August 11, includes this:

Groups concerned U.Va. will turn over documents in global warming case

Four groups say they are worried the University of Virginia may unnecessarily disclose private correspondence from scientists in the case involving the work of former professor Michael Mann.

The state’s flagship university has fought requests to release documents under Virginia's freedom of information laws to Attorney General Ken Cuccinelli (R), but the groups say they are now concerned about a May 24 agreement U.Va. made to provide some documents to the American Tradition Institute.Environmental Law Center.

The four groups — the Union of Concerned Scientists, the American Association of University Professors, the American Geophysical Union and Climate Science Watch — sent U.Va. a letter late Tuesday.

“We believe the agreement is in conflict with the university’s previous statements and actions on this issue and it threatens the principles of academic freedom protecting scholarly research,’’ they say in the letter.

U.Va. is slated to respond to the American Tradition Institute around Aug. 20. Carol Wood, a university spokeswoman, did not immediately respond to a message for comment.

In January. the American Tradition Institute asked the university to turn over documents, including e-mails Mann exchanged with other scientists while employed at the university, on behalf of Del. Bob Marshall (R-Prince William) and two other state residents.

The group seeks nearly identical documents to those sought by Cuccinelli using a civil subpoena. The university has been fighting Cuccinelli's demand in court, arguing that his inquiry violates Mann's academic freedom and that the attorney general has singled out Mann because he does not agree with his research findings that the earth has experienced a rapid, recent warming. …

Washington Times coverage, August 11, includes this:

Ahead of deadline, groups express concern over release of climate-change documents

… "We hope the university will modify its agreement with ATI to adequately protect the privacy of scientists involved and uphold the principles of academic freedom which you have previously articulated," reads the letter from the American Association of University Professors, the American Geophysical Union, Climate Science Watch, and the Union of Concerned Scientists.

A judge ruled that the University must turn over 9,000 pages of documents it believes are not exempt from disclosure to ATI by August 22. The group has also won the right to look at all the requested documents, even private ones, starting no later than September 21.

"If API gets to look at all these documents, even if they're under a gag order, that sends a pretty chilling message to research," said Aaron Huertas, a spokesman for the Union of Concerned Scientists. …

Virginia Pilot coverage, August 11, “U.Va. document disclosure plans worry science groups”

Chronicle of Higher Education coverage, August 11, includes this:

AAUP Says U. of Virginia Is Giving Group Too Much Access to Climate Researchers' Documents

… The letter lists, among its objections to the agreement, that it lets lawyers from ATI, as the institute is known, review all documents in the university's possession, including materials that are likely to be determined to be exempt from disclosure under the state's open-records law. "While the agreement asserts that ATI representatives would be under a gag order regarding exempt documents, we are concerned that giving requesters this level of access sets an entirely new precedent and would create a chilling effect for current Virginia researchers," the letter says. It argues that established practice in the state is for a judge, and not the requesting party, to privately review documents if there is a dispute over whether the open-records law covers them. …

Marian Anderfuren, a spokeswoman for the university, on Thursday said officials there were still reviewing the AAUP letter and were not ready to comment on it.

David W. Schnare, who filed the open-records request as director of the American Tradition Institute's Environmenal Law Center, on Thursday argued that the state's open-records law "does not protect academic freedom" and that "there is no adequate means to inspect the ethical standards and behaviors of the faculty of the university without public access to these records."

Mr. Schnare also said the letter from the four groups implies that his organization cannot be counted on to abide by its agreement not to disclose documents that might eventually be deemed private. "That kind of scurrilous accuation, even when done in a passive-aggressive manner, does not reflect well on any of the four organizations," he said.

(Disclaimer) Speaking now only for CSW, and not on behalf of any of the other signers of the letter:

Here’s one problem we see with that particular rhetorical thrust (apart from its self-serving interpretation of exemptions under the law and how they should be handled by the court, as discussed in the letter to the University of Virginia).  Suppose the requested material reveals personal information from an email exchange among colleagues – say, potentially embarrassing personal information, but that would clearly be exempt from disclosure – about someone among the many scientists’ emails that would be included under this document request. Given this information, the requesters could use the results of this fishing expedition to investigate to find independent corroboration, which could be publicly revealed without risk of contempt, even though the initial impetus for that line of inquiry came from being inappropriately allowed to read exempt material.  Is that chilling, or what?

Further, having read all the requested documents, even those that were subsequently ruled exempt by the court, the denialist lawyer-politico operatives at ATI could insinuate that they had read damning material but that they weren’t allowed to reveal it.  How far would you trust them?

Earlier posts:
Court orders U.Va. to turn over climate scientist records under seal in denialist FOIA harassment request

Washington Post editorial: Resist denialist ‘freedom of information’ harassment of climate change scientists

University of Virginia will seek to protect academic freedom in dealing with denialist FOIA inquisition

In defense of academic freedom against denialist FOIA inquisition tactics

Virginia AG Cuccinelli inquisition goes to state Supreme Court

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One Response to Letter calling on Univ. of Virginia to prevent inappropriate open records disclosure of climate scientists’ exempt emails and documents

  1. David Missingham says:

    In the interest of public disclosure (Freedom of Information) and equal favour, is the ATI prepared to allow access to its own correspondence with allied climate "research" bodies?

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