The Virginia Supreme Court has rejected the American Tradition Institute's demand for email correspondence between former University of Virginia climate scientist Michael Mann and his colleagues. In upholding a higher education research exclusion from freedom of information access in this case, the Court cited the potential for "harm to university-wide research efforts, damage to faculty recruitment and retention, undermining of faculty expectations of privacy and confidentiality, and impairment of free thought and expression." This is the result we have advocated in this case for the past three years.
The Richmond [Virginia] Times Dispatch reported ("Va. Supreme Court backs ex-U.Va. climate researcher"):
RICHMOND -- The Virginia Supreme Court today rejected a conservative group's attempt to obtain a University of Virginia climate researcher's emails.
The justices said retired Arlington Circuit Judge Paul Sheridan was right when he ruled that Michael Mann's emails are proprietary records dealing with scholarly research and therefore are exempt from disclosure under the Virginia Freedom of Information Act. The ruling ends the American Tradition Institute's three-year court battle to obtain the emails. ...
The Washington Post reported ("Va. Supreme Court rules for U-Va. in global warming FOIA case")
Unpublished research by university scientists is exempt from the Virginia Freedom of Information Act, the Virginia Supreme Court ruled Thursday, rejecting an attempt by skeptics of global warming to view the work of a prominent climate researcher during his years at the University of Virginia.
The ruling is the latest turn in the FOIA request filed in 2011 by Del. Robert Marshall (R-Prince William) and the American Tradition Institute to obtain research and e-mails of former U-Va. profesor Michael Mann. ...
In 2012, Circuit Judge Paul Sheridan sided with U-Va., saying that Mann’s work was exempt and that the FOIA exemption arose “from the concept of academic freedom and from the interest in protecting research.” Marshall and ATI appealed.
The Virginia Supreme Court ruling includes this:
“We reject ATI’s narrow construction of financial competitive advantage as a definition of ‘proprietary’ because it is not consistent with the General Assembly’s intent to protect public universities and colleges from being placed at a competitive disadvantage in relation to private universities and colleges. In the context of the higher education research exclusion, competitive disadvantage implicates not only financial injury, but also harm to university-wide research efforts, damage to faculty recruitment and retention, undermining of faculty expectations of privacy and confidentiality, and impairment of free thought and expression.”
Michael Halpern at the Union of Concerned Scientists has a good post on the outcome (Virginia Supreme Court Unanimously Supports Academic Freedom at the University of Virginia):
The Court’s decision signals to scientists at public universities that the pursuit of scientific knowledge will be protected in Virginia, no matter how their research results might be received. ...
[D]emanding private email correspondence among scientists is the 21st Century equivalent to eavesdropping on conversations around the water cooler. All of us need safe space to develop ideas and open them up to scrutiny so that we can make them better.
The Court quotes liberally from a brief submitted by UVa Provost John Simon: “For faculty at public institutions such as the University of Virginia,” wrote Simon, “Compelled disclosure of their unpublished thoughts, data, and personal scholarly communications would mean a fundamental disruption of the norms and expectations which have enabled research to flourish at the great public institutions for over a century.”
I am well-aware of and strongly supportive of the need for effectively implemented Freedom of Information laws in dealing with government agencies, in order to foster open government and the public’s need to know. On the other hand, generally Freedom of Information advocates recognize there is a balance to be struck when it comes to protecting academic freedom and the confidentiality of communications among university scholars. I strongly support the Court's ruling in this case.
In the 21st century, email can be a form of conversation among people who are separated geographically. Think: suppose you were a group of academics sitting at a table, over coffee or a beer, candidly discussing, say, colleagues and their work, appraising graduate students, criticizing university administrators, perhaps sharing personal information including perhaps medically related information that might be affecting your work schedule, trying out very tentative hypotheses or brainstorming about new lines of research, discussing the status of your grant proposals -- you get the idea. So, should just anyone who is not part of your group -- including those with a predatory interest in using or misusing anything that could be cherry-picked and used to smear you or to seek to discredit you -- be allowed to sit at your table and listen in, record your conversation, and publish whatever pieces of it they chose to extract? Why would this be OK? Then, analogously, if your 'table' is a virtual table in cyberspace because the conversants are in dispersed locations, when should your right to converse freely via email be abridged? How much of your freedom of candid conversation should be chilled by the prospect of having it made public? Where and how are the lines to be drawn?
On the question of why academics might be legitimately concerned about the potential for abuse and misuse of having everyone, including those with a predatory interest, allowed to read and post their email conversations with each other, an article in the Columbia Journalism Review (“Strange Bedfellows”) has this, following a reference to the abusive, trumped-up, so-called "Climategate":
"Researchers say they are increasingly subject to freedom of information requests that, rather than gathering data for public disclosure, take the form of fishing expeditions for smear campaigns. In a two-part series in Climate Wire, Stephanie Paige Ogburn reports that the deluge has grown such that that researchers are increasingly turning to organizations like the Climate Science Legal Defense Fund, the Union of Concerned Scientists, and Public Employees for Environmental Responsibility, all designed to support scientists managing the onslaught. In March of 2012, The Washington Post ran an editorial criticizing this particular usage of FOIA, arguing that allowing records requests to be used as harassment needlessly hinders science.
“'Academics must feel comfortable sharing research, disagreeing with colleagues and proposing conclusions — not all of which will be correct,' wrote the Post, adding that making correspondence subject to public scrutiny 'discourages the sort of scientific inquiry that, over time, sorts out fact from speculation, good science from bad.'"
Response to the Supreme Court ruling by ATI (now known as Energy & Environment Legal Institute), which of course won't own up to their misuse of Freedom of Information law to harass climate scientists and promote global warming denialism.
Statement by Michael Mann on the Virginia Supreme Court ruling:
We are glad that Judge Sheridan's decision was upheld by the Virginia Supreme Court. This is a victory for science, public university faculty, and academic freedom.
We are grateful for the vigorous defense waged by the University of Virginia in protecting their faculty and the integrity of research and scholarship.
Hopefully the ruling can serve as a precedent in other states confronting this same assault on public universities and their faculty.
A Virginia court has affirmed the University of Virginia's right to withhold confidential scholarly communications, thus ruling against the global warming denialist American Tradition Institute's demand to make public climate scientist Michael Mann's documents and email correspondence with dozens of other scientists during his time at UVa. This is an important victory in a case that threatened to send a chilling message to university scholars that they could no longer expect to engage in personal communications without having the whole world reading over their shoulders.
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.
“Freedom of information laws are critical tools that allow Americans to see what their leaders do on their behalf. But some global warming skeptics in Virginia are showing that even the best tools can be misused,” says the Washington Post in a May 30 editorial. The case at hand is the current demand by the right-wing American Tradition Institute and its global warming denialist lawyer Christopher Horner to obtain and publish years’ worth of former University of Virginia climate scientist Michael Mann’s email correspondence with dozens of colleagues in the science community, and other documents. The Post urges the University to dig in and make full use of legal tools to resist meeting this demand. Amen to that.