15 December 2011

UK ICO guidance on private email accounts

The UK Information Commissioner's Office (ICO) has just issued a guidance note related to whether official business communicated via private or non-governmental channels (such as via gmail, or SMS texts) can be considered 'held' on behalf of the the authority for the purposes of FOI.

Unsurprisingly (given past hints), the ICO has stated clearly that any communication that is related to 'official business' wherever it is stored (and on whatever medium) is FOI-able. Public authorities will now be requested to ask relevant people to search, and to document that search, their personal email accounts where relevant to any specific FOI request.

It is worth noting that this guidance goes considerably beyond equivalent US legislation where 'information held' is defined more strictly as being information that the agency has access to and control over - neither of which apply to gmail accounts.

However, while this makes sense in light of the UK law as written, it is likely to be problematic for a number of reasons. By its very nature, private email accounts will, in general, contain a much higher proportion of non-official correspondence, and inevitably, in a more informal style. There is no way to prove ahead of time that no official business was conducted via the personal account of any authority employee (any simple claim of this is likely to be appealed, and on past form the ICO will grant that appeal since no evidence can exist that demonstrates the negative in a comprehensive way short of an actual search of the account).

Thus for many FOI requests of a general nature (which are quite common in the US), such as requests for correspondence using specific terms or referring to a specific website or person, it will automatically require that all personal accounts will need to be searched. The ICO thinks this will be 'rare' but it practice it is likely to become far more common than he anticipates, even mundane. Given the search which, depending on the phrasing of the request, might lead to a huge amount of results, determination will need to be made as to whether each and every individual email counts as being 'official'. Who will determine this? If it is to be the authority FOI official, the privacy of the individual concerned will clearly be compromised - what if some of the potential responsive email expresses dissatisfaction with the job, and a desire to apply for something new? Or reveals an affair with a work colleague? If it is to be the individual themselves, there is an obvious issue with interpretation: determinations are related to legal precedent and require experience that any specific individual is unlikely to possess. (Of course, should this become to onerous, the exemptions for 'too much time needed' will apply). Employing a neutral third party to process the emails is conceivable but would clearly be an extra and unfunded burden on the authority.

Worse, FOI requests may start to specifically target private emails on the anticipation that the determination of official v. non-official will be indistinct, and perhaps a little arbitrary. Remember there is no restriction on what can be asked for - all emails containing an expletive perhaps, or emails related to something sexually suggestive. By the very nature of this ruling, all that is required is that there is a suspicion (justified or not) that some official communication might be caught by these terms to start the process of searching, and sifting through people's private mail. Regardless of how scrupulous any employee is in separating their personal and professional lives, they will still be forced to turn over their private mail.

While this may well not have been the intent of the law, the consequence of this guidance is that no-one working for a UK public authority has any private space in which to communicate. The irony is that the guardian of privacy law in the UK is also the Information Commissioner.

23 November 2011

UEA FOI disclosure log

As the potentially biggest target of climate science-related UK FOI requests, the University of East Anglia has had to become somewhat more organized about this than they historically had been. To that end, they have created a very useful repository of all their FOI requests, their status and the disposition of the records (if any) delivered.

Curiously, there is no request anywhere for the entirety of their backup mail server from 1993 to Nov 13 2009, whose release on the internet, despite some appearances, has nothing to do with FOI at all...

19 November 2011

ATI v. NASA: Settled?

Filings in the ATI lawsuit against NASA appear to indicate that the substantive issues have been settled:


NASA has apparently turned over 227 partially redacted pages of information in response to the original FOIA request. This likely provides the source for an article by Chris Horner in Pajamas Media, repeating many of the same misleading contentions as highlighted in the lawsuit. Curiously, nether Horner nor ATI have provided access to the actual released documents (as of today at least), it is therefore unclear how many of Horner's allegations are valid, or like his claim that Hansen was never 'muzzled' (original story NYT, confirmation by the NASA OIG) , made up of the whole cloth.

A sign that the allegations are unlikely to be sustained is that Horner assumes that all of Hansen's travel for any outside activity must have been paid for by someone else but wasn't reported. The idea that Hansen may have traveled somewhere on his own dime is not considered. A fair assessment of these documents will require a somewhat more independent investigator.

09 November 2011

Nature on the ATI/UVa case

Related to the ATI/UVa/Mann case, the 10 Nov 2011 edition of Nature has the following editorial:

Academic freedom

Scottish law exempts academic work from the freedom-of-information laws, but the rest of the United Kingdom does not. Ireland also exempts, and although the United States is commonly thought to, it turns out that, as so often in that country, it is left to the courts to decide. So, just what should researchers make of freedom-of-information laws?

American climatologist Michael Mann, now at Pennsylvania State University in University Park, probably knows the score better than most. And in the latest twist in a long-running saga over who should be able to read Mann's e-mails, a Prince William County Circuit Court judge in Manassas, Virginia, last week tore up an agreement that would have given the e-mails, with conditions, to attorneys for the American Tradition Institute (ATI), a conservative think tank. Judge Gaylord Finch also granted Mann's request to join the University of Virginia (his former employer and holder of the e-mails) in a lawsuit to block their release.

As both sides argue about whether the messages should ultimately be made public, the two legal decisions come as welcome news to those (including this journal) who believe that access to personal correspondence is a freedom too far. But the case highlights, yet again, how woefully unprepared the academic community is to meet this kind of challenge. This must change.

Certainly, the University of Virginia caved in too easily when it signed the agreement that granted the ATI access to the e-mails last spring. Given the tone of public statements that have come out of the ATI, the university should never have agreed to hand over confidential material of any sort.

But the university and its attorneys deserve credit for rectifying the situation. And despite appearances, to fight such requests is not against the letter, or indeed the spirit, of perfectly proper regulations designed to improve the accountability of public bodies. In fact, Virginia's freedom-of-information law provides the university with a solid basis to deny access to this kind of blanket request for e-mail records: academic work is exempt. This is as it should be, and the university should fight to protect that exemption now and in the future.

Yes, the public has a right to know, and yes, greater scrutiny of public spending is a good thing. But research practice is typically protected for good reasons too. To protect academic freedom is a foundation for intellectual property and copyright laws, while in court, both Mann and the university warned of the chilling effect of such demands on communication between scientists. Certainly, many researchers are more wary of e-mail today, and given Mann's experiences, who can blame them?

His case is high profile, but scientists and academics watching it (as well as the related attempts by Virginia's attorney-general Ken Cuccinelli to force the release of the same e-mails) should be cautious about drawing broad conclusions from how it may pan out. Even within the United States, the eventual ruling won't serve as much of a precedent outside Virginia. Federal agencies in the United States are subject to the federal statute, but state universities and research institutions must all play by the laws enacted in their own states.

Across those states it seems that this kind of academic exemption is common, but not universal, and its application would vary according to precedents set locally. In other words, it will be up to individual universities to work out how to address these kinds of cases as they emerge in future.

Mann's decision to join the lawsuit was spurred by the initial decision of the university to grant ATI access to his e-mails, a move with which he disagreed. He suggests that universities may be limited in what they can do to fend off these attacks, or that their interests may not always align precisely with those of individual researchers.

Mann is also getting help from a new fund especially designed to aid climate scientists hit by legal challenges, and organizations including the American Geophysical Union, the American Association of University Professors and the Union of Concerned Scientists have weighed in as well. All of this is good and useful, but it is no substitute for a solid institutional defence. Individual universities and research institutions everywhere should review their own policies and make sure they know the applicable laws as well as do those who would use them for mischief, or worse.

02 November 2011

ATI & UVa: Reopening the review of exempted material

A court in Virginia agreed yesterday that Michael Mann did have standing to join the ATI vs UVa lawsuit (unsurprising) and also agreed to UVa's request to reopen the consent decree that UVa had signed with ATI (again unsurprising).

As we discussed before, the issue at question is how material that UVa thought was exempt from release under FOIA would be reviewed. The initial consent order arranged for the two ATI lawyers (Horner and Schnare) to go over each exempted item themselves. This struck us as very odd. In Federal cases, this is normally assessed via a Vaughn index of all material, reviewed in camera by a judge.

UVa successfully argued that the original arrangement should be re-opened mainly because they were unable to trust the ATI lawyers to maintain confidentiality of the process. This is not a surprising argument given the amount of misrepresentation, disinformation and hyperbole seen in any of their filings, and even more so in their public pronouncements, but it was strengthened enormously by the behaviour of David Schnare in the process of this lawsuit itself.

Schnare, it turns out, was actually a federal civil servant with EPA(!) until a few months ago. According to Nature News, he misrepresented himself in communications with UVa, furthermore, he was not granted permission to engage in outside activity for ATI by his federal employers. This is not surprising either, since ATI has worked on lawsuits associated with challenging the EPA Endangerment Finding which would be a conflict of interest - and doubly so for a lawyer. Thus work that Schnare did as a litigator for ATI while on EPA payroll was a clear violation of Federal ethics rules.

The irony of the ATI legal team being clearly guilty of the same ethics violations which they have falsely accused others of (c.f. ATI vs NASA (Hansen), CEI vs NASA (Schmidt)) will not be lost on any observers.

The new arrangement to review the exempted material will now likely be seen in camera via a 'representative sampling' approach which will not involve the compromised ATI lawyers. A much better solution.

And as for all the material that was non-exempt and released to ATI months ago? Complete silence.

Update UCS has posted the UVa filings and they are a treat to read: UVa motion Kast Affidavit

10 October 2011

Academic interest in impacts and limits of FOI legislation

As FOI requests have had an increasing public profile, and have been used in clear political contexts, it is unsurprising that the study of the effects of FOI on academic pursuits has become a subject of academic research itself.

Two recent efforts, a legal study by the American Constitution Society of US State and Federal FOI on how (and whether) academic freedom is protected against politically charged requests and a study being led by UCL Consitution Unit in the Dept. of Political Science on the impact of UK FOI on the university sector, are worth reading.

Both studies reference cases that have been highlighted here (along with a few additional ones) but the overall thrust is similar: how should one balance the interest in the public right-to-know against the interest in open academic inquiry and the efficient functioning of a public higher education system. (Any claim that there is no conflict is undermined by many of the examples given here and in the reports themselves).

The ACS report suggests that protection of academic freedom be given explicit protection in the law (as is the case in Canada, Scotland and a few other jurisdictions), as opposed to the current implicit protection that only partially (and selectively) works. The UCL study is more observational than advisory, but the same topic is clearly part of their remit.

The UCL study also encompasses the practical impact of the UK FOI law on academic and university practice, which, since the act has been greeted with mixed responses, is possibly more contentious than issues of academic freedom.

FOI legislation has important implications for academic research and communication is conducted, and the balance between positive effects (on data transparency etc.) vs. negative effects (chilling effects on academic discourse and study, disincentives to public speech, invasion of privacy) is determined by quite subtle details in language, case law and implementation. These issues need to be continuously looked at to determine whether the legislation is striking the right balance.

27 September 2011

ICO FOI guidance for universities

The Information Commissioner's Office in the UK has issued a new guidance for Universities and other institutes of Higher Education on dealing with FOI and EIR requests.

This is welcome for a number of reasons, and though it is quite clear, it also raises some additional questions.

One thread comes across clearly in the advice, and that is that any exemption claimed that is subject to a public interest test must be thoroughly supported. In a number of the cases highlighted in the advice (the QUB/Ballie tree ring case, or the CRU dataset case), the decisions were based not on the manifest inappropriateness of the exemptions claimed, but on the specific lack of clear and sufficient support to invoke them. Given the lack of precedent in these cases, one might expect future ICO appeals to be defended more robustly if these exemptions are to be claimed.

There are some positive statements in the advice regarding whether peer review documentation - either reviews performed or received by a covered academic - is exempt under sections 36 and 41 of FOI. In the MRC case, the expectation of confidentiality in peer review, and the need for a 'safe space' for frank discussion of a proposal's merits were made clear and were upheld as valid reasons for an exemption which no public interest trumped. The ICO is careful to state that this is not a blanket exemption for all peer-review material, but it is hard to see how these justifications do not extend to all such requests, absent some overwhelming public interest which, though conceivable in theory, is hard to see ever applying.

Another welcome clarification is related to the exemption for "information intended for future publication". This will cover almost all unpublished data or analyses, as long as the requestee can demonstrate that the data was really being worked on with an intent for future publication at the time of the request. This will be tested in a specific case mentioned here previously where Steve McIntyre has appealed the refusal of UEA to release an unpublished analysis related to tree ring reconstructions.

More worrying are the ICO statements regarding personal email accounts. These are email accounts (on gmail, hotmail etc.) that are not controlled by the university. Since there is no statutory requirement for UK academics (or any other academics as far as I know) to solely use university email for academic or university communications there is a clear possibility that information that would be FOI-able if located on a university server will reside on private email servers. (NB. US government business at the Executive Office level - ie. the White House - does have a requirement via the Presidental Records Act to be conducted on official computers - but in this case there is an absolute exemption under US FOI for material related to discussions made by the executive - so it is not particularly relevant).

In the US, the first test of whether a document is FOI-able, is whether an agency has control of the document. In the case of a document on a gmail server, the answer is obviously no. It is hard to imagine what might compel Google to release any private email records to an agency (short of a court order, which is not within the power of the agency to produce). Fourth amendment protections against unjustified search would almost certainly trump any FOI justification.

The ICO, however, seems to suggest (section 2.3that "if the information held on a personal email account is related to public authority business, it is likely to be held on behalf of the public authority in accordance with s3(2)(b) of FOIA" and that FOI officers should "consider whether it is appropriate to ask a member of staff whether they hold information in a personal email account". There are no cases given of this occurring, but it is unclear under what authority a university could compel the turning over of information from a gmail account. This is clearly an issue which bears further watching, and will probably require a test case to determine the limits.

06 September 2011

ATI & UVa: An intervention

As discussed here and here, a key oddity in the ATI vs. UVa VFOIA case is that UVa voluntarily consented to have ATI review all material in the scope of the request in order to challenge any redactions or exemptions that UVa deemed necessary.

Now, Michael Mann has filed a motion directly with the Virginia court to have this state of affairs reviewed citing privacy concerns and the clear lack of ability to safeguard legitimate interests should the process go according to the current plans.

In return, ATI has thrown up another whole suite of red-herrings and strawman arguments that have nothing to do with the point of law at hand. They are arguing that Mann has no standing to intervene (which would seem to be obviously ridiculous given that it is his email account that is being mined), and that the Mann challenge is a focused on the legitimacy of the VFOIA request in the first place. This last argument is transparently false, since UVa has already sent over the material requested that did not come under any valid exemptions with no objection having been raised. Mann's intervention is solely focused on the procedure for dealing with material that UVa thinks is exempt, but that ATI thinks the exemption is invalid. The ATI release does not actually mention the point in question at all.

Even more interestingly, Chris Horner is quoted as saying that Mann is merely "sputtering ad hominem and conspiracy theories". This is the same Chris Horner who called Jim Hansen a 'fanatic' and wondered "Why is NASA hiding James Hansen's ethics records?" (see here for a more reality-based view). No ad hominem or conspiracy theorizing there of course.

ATI additionally claims that "Dr. Mann wants, after the fact, for UVA to throw out policies he accepted as a condition of living off of taxpayer dollars, in order to cover up public information and to evade scrutiny." - a statement wholly at odds with the facts in this case, and indeed with the VFOIA legislation itself. Why are there any mandated exemptions to total public disclosure if that any recourse to them is "a cover up" to "evade scrutiny"?

Indeed, since the point of Mann's complaint is that the ATI lawyers cannot be trusted to deal professionally with any material under seal, one would think that they would make more of an effort to appear trustworthy. One would be wrong.

18 August 2011

ATI & UVa: Reviewing exempted material again

As highlighted here a few weeks ago, the agreement between UVa lawyers and Chris Horner and David Schnare of ATI has raised more than a few eyebrows. The point at issue is how to deal with material that UVa thinks is exempt from release under Virginia FOIA, but that ATI thinks is not.

In federal FOIA, standard practice is to produce a Vaughn Index of all the material, and to have a judge, in camera, decide on whether any challenge to an exemption is valid or not. Under the UVa Consent decree, UVa has agreed to send ATI lawyers all material (under seal) for their review. Some obvious issues with this approach were discussed in the last post.

In a new letter to UVa, the Union of Concerned Scientists has questioned the sense of this and provided Virginia case law in support of a more federal-FOIA-like approach. Specifically, they cite Bland v Virginia State University (2006) where the Virginia Court of Appeal "encouraged the filing of allegedly confidential records for in camera inspection by the trial court and, if necessary, by an appellate court" in VFOIA cases where exemptions were an issue. As with federal FOIA, this seems to make much more sense.

In response, ATI put out a press release expressing surprise that anyone would question their professionalism.

What's good for the goose...

Issues: Appeals against claimed exemptions, Vaughn Index

28 July 2011


The process for developing the next IPCC report is well underway. The WG1 zero-order draft of the 5th Assessment Report (AR5) report is basically a scoping document in which the authors flag the approach and expected content of the final report. The 'ZOD' was reviewed by nominated expert reviewers and the comments and next steps would have been discussed at the July 2nd IPCC authors meeting. On past performance, the contents of the ZOD will have nothing much to do with the final report (which is 3 versions, two rounds of expert review and government review away).

A recent round of FOI requests in the UK (for instance, here) has asked for all of the ZOD material (along with all comments and names of reviewers) from all UK bodies whose employees participated in the Brest meeting.

US FOIA provides a specific exemption for drafts or predecisional materials, and in the UK law, similar protections exists for material that is in the course of completion or unfinished documents (Section 12(4)d).

Additionally, since the IPCC intends to archive drafts and reviews, section 22 "information slated for future publication", might also hold. However, since IPCC is an international body, headquartered in Switzerland (with no FOI legislation), it is unclear that this is relevant.

The point of these exceptions is to allow public bodies to be able to complete a draft and review process of complex documents without having every step scrutinised and potentially interfered with. An argument could be made that the ZOD is in itself a completed report and thus ineligible for the exemptions listed, but precedents (at least in the US) suggest that reports that are called 'drafts' are indeed 'drafts' and not final reports.

Multiple requests to multiple bodies for the same information (as in this case) certainly increases the chances of inconsistent responses and this is likely to be repeated at every step of the AR5 report's drafting process. Since the reasons for release or not should be the same for each body (though the requestor is clearly hoping for some variation), this seems a little like FOI spam.

Issues: drafts, predecisional information

30 June 2011

AAAS on harassment of scientists

The Board of the AAAS put out a strongly-worded statement condemning the harassment of climate scientists via nuisance lawsuits, death threats and 'fraud' investigations:

We are deeply concerned by the extent and nature of personal attacks
on climate scientists. Reports of harassment, death threats, and
legal challenges have created a hostile environment that inhibits the
free exchange of scientific findings and ideas and makes it difficult for
factual information and scientific analyses to reach policymakers and
the public. This both impedes the progress of science and interferes
with the application of science to the solution of global problems.
AAAS vigorously opposes attacks on researchers that question their
personal and professional integrity or threaten their safety based on
displeasure with their scientific conclusions.

The progress of science and protection of its integrity depend
on both full transparency about the details of scientific methodology
and the freedom to follow the pursuit of knowledge. The sharing of
research data is vastly different from unreasonable, excessive Freedom of
Information Act requests for personal information and voluminous data
that are then used to harass and intimidate scientists. The latter serve
only as a distraction and make no constructive contribution to the
public discourse.

Scientists and policymakers may disagree over the scientific
conclusions on climate change and other policy-relevant topics. But the
scientific community has proven and well-established methods for
resolving disagreements about research results. Science advances
through a self-correcting system in which research results are shared
and critically evaluated by peers and experiments are repeated
when necessary. Disagreements about the interpretation of data, the
methodology, and findings are part of daily scientific discourse. Scientists
should not be subjected to fraud investigations or harassment simply
for providing scientific results that are controversial.

Most scientific disagreements are unrelated to any kind of fraud and are considered a
legitimate and normal part of the scientific process. The scientific
community takes seriously its responsibility for policing research
misconduct, and extensive procedures exist to protect the rigor of the
scientific method and to ensure the credibility of the research enterprise.

While we fully understand that policymakers must integrate the
best available scientific data with other factors when developing
policies, we think it would be unfortunate if policymakers
became the arbiters of scientific information and circumvented the
peer-review process. Moreover, we are concerned that establishing a
practice of aggressive inquiry into the professional histories of scientists
whose findings may bear on policy in ways that some find unpalatable
could well have a chilling effect on the willingness of scientists to
conduct research that intersects with policy-relevant scientific questions.

The AAAS Board was apparently prompted to issue the status following the Cuccinelli probes at U.Va and the ATI/CEI lawsuits at U.Va and NASA targeting Micheal Mann and Jim Hansen. In response, Chris Horner (of ATI & CEI) implied that criticism of his actions was equivalent to defending statutory rape. Nice.

22 June 2011

ATI NASA lawsuit

On the heels of it's failed appeal to NASA on the issue of James Hansen's 'Permission to engage in outside activity' forms, ATI's Christopher Horner has filed suit against NASA in DC District Court:

ATI NASA Hansen FOIA lawsuit

This lawsuit is notable for a number of misleading claims and for the argument that Horner is pursuing which is in complete opposition to the argument Horner pursued (wearing his CEI hat) in his other NASA FOIA lawsuit.

The technical issue at stake in the original ATI FOIA request is whether forms filled out by NASA employees to request permission to undertake outside activity fall under the FOIA exemption for personnel matters. Since it is clear that the requests are for non-official activity (by definition), and that federal employees have an expectation of privacy for non-official activities, the terms for the privacy exemption would clearly seem to be met.

This can be overridden with a strong enough 'public interest' which can be weighed against the privacy rights of the individual. However, in order to demonstrate a 'public interest' (note this is not the same as whether a member of the public is interested), Horner has brought up a number of tangential, irrelevant and just plain false accusations against Hansen, both in the lawsuit and in the commentary he has published online. Without a clear argument that there is a real issue with respect to NASA compliance with ethics rules, the public interest test is unlikely to be met.

A few examples: Horner accuses Hansen of receiving $1.2 million in outside income for work done as a federal employee. He does not note in the commentary (though it is stated in the lawsuit), that most of these monies were for international prize awards which, like a Nobel Prize, can be accepted by federal employees and do not count as 'outside activity' for which permission must be sought*(see update). The relevent federal ethics guidelines are quite explicit (see part d.1, and example 1). The four prizes in question (the Blue Planet Prize $550,000, the Heinz award $250,000, the Dan David award ($333,000?) and the Sophie Prize, $100,000) are all examples of an

... award .. made as part of an established program of recognition:

(i) Under which awards have been made on a regular basis or which is funded, wholly or in part, to ensure its continuation on a regular basis; and

(ii) Under which selection of award recipients is made pursuant to written standards.

for which no prior permission is required.

Thus the insinuation that Hansen might not have complied with ethics guidelines by not filing 'Outside activity' forms for these prizes (which are not required) is clearly misleading (forms would have been required for speaking engagements and the like which apparently total to only $48,000 over 4 years).

Similarly, the claim in the lawsuit that Hansen received $720,000 from George Soros is simply fictitious.

Even more curious is the use by Horner of documents produced by NASA in the CEI case (for which Horner is the lead attorney). These consist of some "Outside activity" forms from Gavin Schmidt, specifically one related to his activity on the RealClimate blog (see the filings in this case for more details). These forms were released in court filings, not through a FOIA request, and so do not have any relevance for determining whether there is a statutory right to see these forms via FOIA.

The issue in question in the CEI vs NASA case is whether blogging was part of Schmidt's official duties (NASA says it was not, while CEI is arguing the opposite). However in this case, Horner is arguing that for the period prior to the filing of Schmidt's "Outside activity" form, Schmidt (and GISS) were out of compliance with ethics rules (which GISS and Schmidt have denied). For this to be the case though, one must at minimum accept that the RealClimate blogging was indeed not part of Schmidt's official duties (if it was part of his official duties, then obviously he could not be out of compliance with ethics guidelines related to 'outside activities'!). Thus, should this example be taken as evidence of NASA failing to uphold ethics rules, it would immediately undermine the argument put forward by Horner in the CEI case (that the RealClimate blogging was an official duty).

Having the same lawyer use two contradictory arguments in separate lawsuits against the same agency might be a sight to behold. One wonders if the judges will be impressed.

* Update: As noted in a comment, while prizes do not require the filing of an outside activity form, they do require a determination that they satisfy ethics rules before they can be accepted.

Issues: privacy exemptions

02 June 2011

Washington Post: Intimidation by FOIA

In an editorial this week 'Harassing climate-change researchers', the Washington Post made a similar point to that seen in the UK Guardian last week.

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.

Lawyers from the Environmental Law Center at the American Tradition Institute (ATI) have asked the University of Virginia to turn over thousands of e-mails and other documents written by Michael E. Mann, a former U-Va. professor and a prominent climate scientist. Another warming skeptic, Virginia Attorney General Ken Cuccinelli II (R), recently demanded many of the same documents to determine whether Mr. Mann somehow defrauded taxpayers when he obtained research grants to study global temperatures.

A judge quashed Mr. Cuccinelli’s chilling “civil investigative demand.” But even though Mr. Mann wasn’t an agent of the commonwealth in any practical sense when he worked at U-Va., the university hasn’t been able to dismiss ATI’s requests, since Mr. Mann’s e-mails are public records in a technical sense. U-Va. agreed last week that it will hand over all the material that state law obliges it to release by Aug. 22.

ATI’s motives are clear enough. The group’s Web site boasts about its challenges to environmental regulations across the country. Christopher Horner, its director of litigation, wrote a book called “Red Hot Lies: How Global Warming Alarmists Use Threats, Fraud and Deception to Keep You Misinformed.” (We wonder whether the “alarmists” who wrote the National Research Council’s latest report on climate change are threatening, fraudulent or merely deceptive.) And ATI declares that Mr. Mann’s U-Va. e-mails contain material similar to that which inspired the trumped-up “Climategate” scandal, in which warming skeptics misrepresented lines from e-mails stored at a British climate science center.

Going after Mr. Mann only discourages the sort of scientific inquiry that, over time, sorts out fact from speculation, good science from bad. Academics must feel comfortable sharing research, disagreeing with colleagues and proposing conclusions — not all of which will be correct — without fear that those who dislike their findings will conduct invasive fishing expeditions in search of a pretext to discredit them. That give-and-take should be unhindered by how popular a professor’s ideas are or whose ideological convictions might be hurt.

Teresa A. Sullivan, U-Va.’s president, said that the university will use “all available exemptions” from the state’s public records law to shield Mr. Mann. And 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.” The university is right to make full use of such exemptions.

An important point to note is that the editorial is not criticizing FOIA legislation in general (which would be a perverse point of view for a newspaper). Rather they are commenting on use of that legislation as a means to harass academics with a 'shoot the messenger' tactic. A similar analogy would be the if an administration used the IRS to audit the tax returns only of people in the opposing party. It is not that auditing tax returns is bad legislation, but when it is turned into a political weapon, there is a chilling effect on the political process itself. If mounting numbers of FOIA 'attack' requests discourage academics from researching or talking about certain topics, the whole research endeavor will suffer, as will the idea of informed public discourse.

27 May 2011

UK Guardian: Intimidation by FOIA

The UK Guardian has a story on FOIA requests are being used to intimidate and harass UK scientists:

Freedom of information laws are being misused to harass scientists and should be re-examined by the government, according to the president of the Royal Society.

Nobel laureate Sir Paul Nurse told the Guardian that some climate scientists were being targeted by organised campaigns of requests for data and other research materials, aimed at intimidating them and slowing down research. He said the behaviour was turning freedom of information laws into a way to intimidate some scientists.

Nurse's comments follow the launch of a major Royal Society study into how scientists' work can be made more open and better used to inform policy in society. The review – expected to be published next year – will examine ways of improving access to scientific data and research papers and how "digital media offer a powerful means for the public to interrogate, question and re-analyse scientific priorities, evidence and conclusions".

Nurse said that, in principle, scientific information should be made available as widely as possible as a matter of course, a practice common in biological research where gene sequences are routinely published in public databases. But he said freedom of information had "opened a Pandora's box. It's released something that we hadn't imagined ... there have been cases of it being misused in the climate change debate to intimidate scientists.

"I have been told of some researchers who are getting lots of requests for, among other things, all drafts of scientific papers prior to their publication in journals, with annotations, explaining why changes were made between successive versions. If it is true, it will consume a huge amount of time. And it's intimidating."

It was possible some requests were designed simply to stop scientists working rather than as a legitimate attempt to get research data, said Nurse. "It is essential that scientists are as open and transparent as possible and, where they are not, they should be held to account. But at times this appears to be being used as a tool to stop scientists doing their work. That's going to turn us into glue. We are just not going to be able to operate efficiently."

Nurse said the government should examine the issue, and think about tweaking freedom of information legislation to recognise potential misuse. Otherwise, he predicted, FoI aggression could be in future used by campaigners to cripple scientific research in many other controversial areas of science, such as genetically modified crops. "I don't actually know the answer but I think we have a problem here. We need better guidelines about when the use of freedom of information is useful."

Bob Ward of the Grantham Research Institute at the London School of Economics said the intention of many of those making freedom of information requests was to trawl through scientists' work with the intention of trying to find problems and errors. "It's also quite true that these people do not care about the fact that it is causing a serious inconvenience," he said. "It is being used in an aggressive and organised way. When freedom of information legislation was first contemplated, it was not being considered that universities would be landed with this additional burden."

Evidence of the aggression first began to emerge when personal emails and documents were stolen from the University of East Anglia's (UEA) servers in November 2009 and leaked on to the internet. Climate sceptics seized on the contents as evidence that apparently showed scientists were colluding to keep errors in their research hidden and prevent rivals' research from being published at all.

In an independent inquiry a year later, the scientists at the UEA's climatic research unit (CRU) were cleared of any misconduct, but Muir Russell, the former civil servant who led the investigation, found a "consistent pattern of failing to display the proper degree of openness", although he stressed he had no reason to doubt the CRU team's honesty or integrity.

"The current fog of ambiguity concerning, for example, drafts of research papers produced in other countries is deeply damaging to our scientific standing," said Tom Ward, pro vice-chancellor at UEA. "Part of the discussion should be informed by what we can learn from Scottish and US law, which explicitly recognise the need to extend some protection to research in progress."

Myles Allen, a climate scientist at the University of Oxford, said he has been involved in many long-running exchanges with people making freedom of information requests for his data. "In the case that went on the longest, I answered all the guy's questions. I spent half a day writing a long email explaining the answers to all his questions, but it wasn't really that which he was after: he was after some procedural questions about IPCC [Intergovernmental Panel on Climate Change]. He wanted some evidence that an IPCC statement had been changed – it wasn't about science at all; it was about procedure."

He added: "I can see what someone with a very specific political comment might gain from an unguarded comment, but it's very hard to see how science or public understanding of science gains from every exchange between scientists being made public. No other discipline operates in that way. The net effect of this, incidentally, is that senior people in government and senior scientists close to government are basically just using the telephone again. Which is very bad for science because email exchanges are an extremely useful record."

Nurse said that scientists were not blameless. At the University of East Anglia, they were too defensive in their responses to freedom of information requests over climate change, but their experience was one among many that highlighted a need for better training for scientists in the most appropriate way to respond to information requests.

Ward agreed that most universities do not have a very good grasp of the requirements of freedom of information law. But he added that researchers should be able to have confidential conversations with colleagues and researchers in other universities, and that it was increasingly difficult for researchers to do that by email.

"There's no other walk of life where every conversation you have ought to be made public," he said. "There's a massive double standards because a lot of the people submitting these requests are themselves not transparent at all. They don't reveal their sources of funding or the details of what they're doing behind the scenes."

He added that the best way for scientists to respond was with more openness. "Scientists are going to have to get used to the idea that transparency means being transparent to your critics as well as your allies. You cannot pick and choose to whom you are transparent," he said. "Increasingly it is going to be an issue for anyone working in contentious areas. Part of retaining the public's confidence and trust is transparency and openness, and scientists should accept that that is part of the price of having the people's trust."

There is a response letter from Maurice Frankel (from the Campaign for Freedom of Information) who suggests that the existing exemptions should protect scientists from the more unreasonable requests:

The president of the Royal Society calls for changes to freedom of information laws to prevent them being misused (Data laws 'misused' in climate change row, 26 May). However, existing safeguards address many of his concerns. Deliberate attempts to "intimidate" scientists, if that is what they are, can be refused under the Freedom of Information Act's safeguards against vexatious requests. Unreasonable requests for all pre-publication drafts of scientific papers can be refused under an exemption for information due for future publication. Explanations of why changes to successive drafts were made do not have to be provided unless they exist in writing. Multiple related requests from different people, if they are co-ordinated, can be refused if the combined cost of answering exceeds the act's cost limit.

Another academic is quoted as saying many FoI requests are made in order to find problems and errors – but that is a valid use of the act. It was the misguided attempt to deny ammunition to critics that led to the Climategate fiasco. The resulting independent review found there had been an "ethos of minimal compliance (and at times non-compliance) … with both the letter and the spirit" of the legislation, and that the campaign of requests to the UEA climatic research unit was partly the result of its own "unhelpful" response to earlier requests. It is not clear that much has changed.

It is worth noting that Frankel does not deny that unreasonable FOI requests are being made as a form of harassment. Nor does he note that the use of the exemptions is leading to a large number of rejections of FOI requests, which in and of themselves are being used as evidence of an unwillingness of researchers to follow FOI, a meme he also propagates. This is a double bind, researchers and institutions are criticised for using exemptions that exist in the law since that is 'unhelpful', while at the same time are being told to not complain about harassment because there are exemptions that can be used.

Greater clarity in the law about the status of unpublished work and drafts would be a big step in defusing this particular issue.

25 May 2011

ATI & UVa: Reviewing exempted material

Amid some legal gamesmanship from ATI (filing suit (pdf) against UVa during the middle of an ongoing discussion), the Virginia Court has set out the timetable for release and review of exempted material in the UVa/Mann case:

ATI v. UVa Protective Order (pdf)

This is a consent decree which means it was negotiated by the lawyers and not imposed by force of law or by the judge. It has two parts, the first a 90 day schedule from today to release the non-exempt material (some of which has already been released). This seems rather a loose timetable compared to what ATI was demanding. However the second section is a little odd. This covers the case of ATI objecting to any (or all) of the UVa exemptions. Since it is almost guaranteed that ATI will object, it makes sense to set out a process by which this will be adjudicated.

In federal FOIA, this is normally done by the production of a Vaughn Index, which the 5th Circuit has ruled is actually mandated in the case of any challenge to exempted materials. A Vaughn index is essentially a listing of all the exempted material, along with the reason for exemption but which doesn't in itself reveal what the exempted material actually is (for obvious reasons). Thus it might be a list of dates and times of emails received or sent, the topic, and the reason why it is not being released. Disputes over the exemption can then occur, with the judge deciding, in camera, whether the exemption is valid or not.

However, in this case, UVa counsel has agreed to have all the exempt material reviewed under seal by the requesting attorney's themselves! While the attorneys (Horner and Schnare) have signed non-disclosure agreements under threat of contempt of court and other sanctions, it seems highly likely that anything found which remains exempt that is interesting enough will not actually remain confidential. Thus it is surprising that UVa agreed to this. To give an example, let's assume that material reveals personal information would clearly be exempt from disclosure (for instance a potentially embarrassing medical condition among Mann's correspondents). Given that knowledge, the requestors might start to investigate to find independent corroboration of this fact. This corroboration might be safely revealed without risk of contempt of court even though the initial impetus for that line of enquiry came from exempt material. Furthermore, nothing would stop ATI from insinuating that damning material existed but that they were unable to reveal it.

This review will not take place until September, and so it is possible the terms might change.

Issues: Appeals against claimed exemptions, Vaughn Index

07 May 2011

ATI appeal to NASA

The response to the appeal made by ATI concerning personal information related to Jim Hansen's requests for permission related to outside activity has now been filed.


Unsurprisingly, NASA has reaffirmed that information related to personnel matters is exempt from FOIA disclosure and that absent any prior evidence of misconduct, there is no compelling public interest that would trump the concerns of privacy protection.

On the second issue related to a potential misreading of one of ATI's requests, the issue has been remanded to NASA GSFC for a de novo search for relevant documents.

Issues: personal information exemptions, existence of records

NIWA/BOM, peer review and FOI

In Australia, FOI laws have similar exemptions to US FOIA regarding information about deliberative processes:

A document is conditionally exempt if its disclosure under this Act would disclose matter ( deliberative matter ) in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of:

(a) an agency; or

(b) a Minister; or

(c) the Government of the Commonwealth; or

(d) the Government of Norfolk Island.


(2) Deliberative matter does not include either of the following:

(a) operational information (see section 8A);

(b) purely factual material.

This refers to internal discussions, drafts etc. of reports which were ultimately for publication etc. It has also been used to support a general exemption for peer review documents (i.e. confidential reviews, responses to reviewers etc.).

The request in this case, from Warwick Hughes, asked for peer review materials relating to a review by an Australian agency (BoM) of work by a New Zealand agency (NIWA) (see here for more details on the work in question). This clearly raises issues of international relations (another common theme in FOI legislation), and indeed, BoM make the case that release of a confidential peer review process with an international agency would damage relations between them.

Finally, in refusing Hughes request in the most part, BoM provided a listing of all responsive documents, and whether they would or would not be released. In the US, this is termed a Vaughn index and is frequently requested in cases where requested documentation has not been released. In itself, it often provides additional information (on the nature of the responsive documents, dates, correspondents etc.) that might be relevant to the requesters need, even if the content is not released.

Issues: peer review, international relations, Vaughn index

06 May 2011

Canadian FIPPA and Academic Freedom

Canadian provinces also have FOI laws (generally known as Freedom of Information and Privacy Protection Acts or FIPPA). Interestingly there is a specific academic freedom exemption (at least in Ottawa).


(8.1) This Act does not apply,

(a) to a record respecting or associated with research conducted or proposed by an employee of an educational institution or hospital or by a person associated with an educational institution or hospital.

This was recently used in response to a request for emails from Ross McKitrick or University of Guelph:


Dear Mr. xxxxxxx,

I write in response to your request which was received by the University on May 3, 2010 under the Freedom of Information and Protection of Privacy Act (FIPPA) for access to the following:
“…copies of all letters written to and received from Stephen McIntyre, Patrick J. Michaels and Anthony Watts for the period of 2002 to current date by Ross McKitrick of the University of Guelph. The information is to include all copies of documents that may be backed up in mail servers.”

Your request for access to the responsive records is denied. The reasons for this decision are outlined below.

Subsection 65(8.1) of FIPPA states that the Act does not apply to “a record respecting or associated with research conducted or proposed by an employee of an educational institution, or by a person associated with an educational institution”. This exclusion is intended to preserve academic freedom and competitiveness; in particular with respect to specific, identifiable research projects that have been conceived by a faculty member of the University. Records identified as responsive to your request are in regard to research being conducted or proposed by the authors, thereby excluding them from the scope of the Act.

Additionally, s.21(1) of the Act requires that the University refuse to disclose personal information to any person other than the individual to whom the information relates. Responsive records that were not respecting or associated with research conducted or proposed by Professor McKitrick were personal in nature; therefore, the University is obliged to protect these records.

In light of these factors, your request for access to responsive records is denied.

Issues: academic freedom

26 April 2011

FOI requests for unpublished data

Steve McIntyre made a FOI request to CRU for details of an analysis that was mentioned in one of the UEA emails, but not subsequently published (at least not yet).

Furthermore, the raw data for the analysis is already available online.

This is curious for a number of reasons. First, UK FOI explicitly exempts work-in-progress or draft analyses that are being readied for publication for being release (section 22):

Information is exempt information if—

(a) the information is held by the public authority with a view to its publication, by the authority or any other person, at some future date (whether determined or not),
(b) the information was already held with a view to such publication at the time when the request for information was made, and
(c) it is reasonable in all the circumstances that the information should be withheld from disclosure until the date referred to in paragraph (a).

Similarly, it would seem that the "unfinished product", or "intellectual property rights" exemptions would immediately kick in. Third, the raw data is already available, and so the information required is the description of the intellectual work of analysing the data, not the data itself, before that has been described in the scientific literature.

Should this request be upheld, it would seem to spell the end of privacy for any publicly funded research in the UK. Any rival researcher could simply ask for all work in progress whenever they liked.

Issues: Unpublished data, work-in-progress

16 April 2011

Academic Freedom and FOIA

In the Cronon/U. Wisonsin case, the university made an argument that exemptions to the Wisconsin Open Records Act effectively protect academic freedom, defined by them as the right of academics to "to pursue knowledge and develop lines of argument without fear of reprisal for controversial findings and without the premature disclosure of those ideas".

There is no explicit definition of academic freedom or exemption in either Wisconsin or Federal FOIA, and so the claim that academic freedom is protected rests on an interpretation of the statute.

In the UVa case, a letter from 15 organisations, including the AAUP, have urged UVa to apply the same interpretation to the Virginia statute.

The basis for an effective 'academic freedom' exemption, is given by the U. Wisconsin counsel:

5) Intellectual communications among scholars. Faculty members like Professor Cronon often use e-mail to develop and share their thoughts with one another. The confidentiality of such discussions is vital to scholarship and to the mission of this university. Faculty members must be afforded privacy in these exchanges in order to pursue knowledge and develop lines of argument without fear of reprisal for controversial findings and without the premature disclosure of those ideas. The consequence for our state of making such communications public will be the loss of the most talented and creative faculty who will choose to leave for universities that can guarantee them the privacy and confidentiality that is necessary in academia. For these reasons, we have concluded that the public interest in intellectual communications among scholars as reflected in Professor Cronon’s e-mails is outweighed by other public interests favoring protection of such communications.

This references a balance between differing public interests, and like many 'balance' arguments, is potentially open to judicial review.

Unsurprisingly, ATI feels strongly that the balance should be in favor of disclosure, and may well sue to get a review of the eventual UVa redactions (as CEI has done in the NASA case).

In Virginia law, the relevant passage for similar exclusions would be:

Data, records or information of a proprietary nature produced or collected by or for faculty or staff of public institutions of higher education, other than the institutions' financial or administrative records, in the conduct of or as a result of study or research on medical, scientific, technical or scholarly issues, whether sponsored by the institution alone or in conjunction with a governmental body or a private concern, where such data, records or information has not been publicly released, published, copyrighted or patented.

Update: UVa has responded to the letter with a declaration that UVa will use "all available exemptions" consistent with following the letter of the law.

Issues: academic freedom

15 April 2011

UVa responses to VFOIA requests

The University of Virginia has collated a timeline of requests and responses to multiple requests under Virginia FOIA. Since the full exchanges between requesters and the university are provided, it is a good way to see the issues that can arise.

First note, that while anything can be requested, the response depends on multiple issues - whether the records exist, whether they are 'public records', whether they fall under any exemptions in the FOIA law, and whether they are protected from disclosure under any other relevant laws (such as FERPA, which protects students personal information). Note that Virginia FOIA requires the requester to be a Virginia resident (which is why Chris Horner of CEI is now using ATI as a vehicle for these requests).

For any specific request, particularly for broad categories like 'all emails', it is not a priori obvious that a specific individual email that meets the search criteria is releasable. That generally needs to be decided on an email-by-email case. In response to Greenpeace (who requested records related to Pat Michaels), UVa rightly made it clear that no 'unfiltered' release of records would be possible.

Given then that extremely broad requests of emails will likely result in thousands of potentially responsive documents, someone needs to go through each of those records to assess the releasability. Federal and Virginia FOIA allow for the charging of fees to cover the cost of searching, redacting and reviewing documents, though this is sometimes waived in federal cases where agency staff are permanently assigned as FOIA support etc. Note that ATI initially challenged the application of fee for reviewing the documents, but UVa insisted that this was in fact permitted under guidelines from the VFOIA Advisory Council.

UVa therefore has requested deposits of fees prior to commencing any individual email review process, based on the reasonable estimate that one person can review roughly 90 emails an hour. (Other estimates from similar situations might give 70 to 100 emails/hour, but it depends clearly on the complexity of the material). UVa appears to be using law students to perform the reviews and are charging $25/hour for that. In cases referred to here, the number of documents is on the order of 35,000 individual records - implying eventual costs of review at $8000 or more (final costs to be decided once review is complete).

Issues: Fees, exemptions, standing

03 April 2011

ATI FOIA requests at UVa

ATI and Del. Bob Marshall have also put in FOIA requests under Virginia law for all of the emails requested by Ken Cuccinelli as part of his FATA inquiry. Note that the response to a CID under FATA (currently under consideration by the Virginia Supreme Court) has nothing to with what is releasable under FOIA.

ATI FOIA Request to UVa from Mann emails

Marshall had a previous request for Mann's emails turned down since the records did not exist at Virginia. If a backup server that might have responsive records has subsequently been found (as claimed in the ATI request), then anything responsive still needs to be filtered for privacy, communications not related to an official position, academic freedom concerns etc.

Virginia FOI laws can be found here.

01 April 2011

Cronon: U Wisconsin responds

As expected, the U. Wisconsin response to the Open Records Request for William Cronon's emails will assert privacy, personal records, and academic freedom exemptions:

Members of the campus community,

Two weeks ago UW-Madison received an open records request from Stephan Thompson, deputy executive director of the state's Republican Party, for email records of Professor Bill Cronon.

Professor Cronon is the Frederick Jackson Turner and Vilas Research Professor of History, Geography and Environmental Studies at UW-Madison. He is one of the university's most celebrated and respected scholars, teachers, mentors and citizens. I am proud to call him a colleague.

The implications of this case go beyond Bill Cronon. When Mr. Thompson made his request, he was exercising his right under Wisconsin's public records law both to make such a request and to make it without stating his motive. Neither the request nor the absence of a stated motive seemed particularly unusual. We frequently receive public records requests with apparently political motives, from both the left and the right, and every position in between. I announced that the university would comply with the law and, as we do in all cases, apply the kind of balancing test that the law allows, taking such things as the rights to privacy and free expression into account. We have done that analysis and will release the records later today that we believe are in compliance with state law.

We are excluding records involving students because they are protected under FERPA. We are excluding exchanges that fall outside the realm of the faculty member's job responsibilities and that could be considered personal pursuant to Wisconsin Supreme Court case law. We are also excluding what we consider to be the private email exchanges among scholars that fall within the orbit of academic freedom and all that is entailed by it. 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.

Scholars and scientists pursue knowledge by way of open intellectual exchange. Without a zone of privacy within which to conduct and protect their work, scholars would not be able to produce new knowledge or make life-enhancing discoveries. Lively, even heated and acrimonious debates over policy, campus and otherwise, as well as more narrowly defined disciplinary matters are essential elements of an intellectual environment and such debates are the very definition of the Wisconsin Idea.

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.

This does not mean that scholars can be irresponsible in the use of state and university resources or the exercise of academic freedom. We have dutifully reviewed Professor Cronon's records for any legal or policy violations, such as improper uses of state or university resources for partisan political activity. There are none.

To our faculty, I say: Continue to ask difficult questions, explore unpopular lines of thought and exercise your academic freedom, regardless of your point of view. As always, we will take our cue from the bronze plaque on the walls of Bascom Hall. It calls for the "continual and fearless sifting and winnowing" of ideas. It is our tradition, our defining value, and the way to a better society.

Issues: agency records, academic freedom

30 March 2011

CRU FOI Requests

The full listing of all the FOI requests received by the Climatic Research Unit at the University of East Anglia, the responses, the appeals etc. are listed in the following file:


Issues: Third party confidentiality agreements, existence of records

25 March 2011


The American Tradition Institute (ATI) is another in a long line of astroturf organisations in DC who shuffle through the same small number of activists. The only two people who appear to be active in this organization are Paul Chesser (formerly of the Heartland Institute and John Locke foundation), and the 'director' of their Environmental Law Center, Chris Horner, who is also an attorney for CEI.

They put in a request in 2011 for records related to Jim Hansen's (GISS) outside activities. This was mostly refused on the 'personal information' FOIA exemption (NASA Response).

ATI have now appealed that decision. Curiously they are using information gained via the CEI vs NASA lawsuit in DC district court, being pursued by.... Chris Horner.

Issues: FOIA Appeals, Personnel records, official duties

Dr. William Cronon and the Wisconsin Republican Party

This is not related to climate science, but is another example of organisations abusing the FOI/Open Public Records Acts to harass academics with whom they disagree.

Dr. William Cronon, a history professor in the U. Wisconsin wrote a blogpost concerning the drivers behind recent Republican legislative actions in Wisconsin. Two days later, the State Republican party put in a request for his emails from his state (@wisc.edu) account related to Republican politicians, unions, and protests. Read more here:

Open Records Attack on Academic Freedom

When such tools are turned toward purely partisan ends, and when they are used with the express purpose of intimidating or punishing those with whom powerful people disagree, then precious institutions of democracy are deployed to subvert the very liberties we all cherish. It is for this reason that I have spent so much time trying to articulate why I don’t believe the Wisconsin Republican Party should be invoking the Open Records Law to single me out for scrutiny—and implicitly for punishment—in this way.

Relevant Wisconsin OPR Statutes:

In determining whether a document is a record under sub. (2), the focus is on the content of the document. To be a record, the content of the document must have a connection to a government function. In this case, the contents of teachers' personal e-mails had no connection to a government function and therefore are not records under sub. (2). The contents of personal e-mails could, however, be records under the public records law under certain circumstances. Schill v. Wisconsin Rapids School District, 2010 WI 86, 327 Wis. 2d 572, 786 N.W.2d 177, 08-0967.

New York Times Editorial (March 25, 2011):

A Shabby Crusade in Wisconsin

The latest technique used by conservatives to silence liberal academics is to demand copies of e-mails and other documents. Attorney General Kenneth Cuccinelli of Virginia tried it last year with a climate-change scientist, and now the Wisconsin Republican Party is doing it to a distinguished historian who dared to criticize the state’s new union-busting law. These demands not only abuse academic freedom, but make the instigators look like petty and medieval inquisitors.

The historian, William Cronon, is the Frederick Jackson Turner and Vilas research professor of history, geography and environmental studies at the University of Wisconsin, and was recently elected president of the American Historical Association. Earlier this month, he was asked to write an Op-Ed article for The Times on the historical context of Gov. Scott Walker’s effort to strip public-employee unions of bargaining rights. While researching the subject, he posted on his blog several critical observations about the powerful network of conservatives working to undermine union rights and disenfranchise Democratic voters in many states.

In particular, he pointed to the American Legislative Exchange Council, a conservative group backed by business interests that circulates draft legislation in every state capital, much of it similar to the Wisconsin law, and all of it unmatched by the left. Two days later, the state Republican Party filed a freedom-of-information request with the university, demanding all of his e-mails containing the words “Republican,” “Scott Walker,” “union,” “rally,” and other such incendiary terms. (The Op-Ed article appeared five days after that.)

The party refuses to say why it wants the messages; Mr. Cronon believes it is hoping to find that he is supporting the recall of Republican state senators, which would be against university policy and which he denies. This is a clear attempt to punish a critic and make other academics think twice before using the freedom of the American university to conduct legitimate research.

Professors are not just ordinary state employees. As J. Harvie Wilkinson III, a conservative federal judge on the Fourth Circuit Court of Appeals, noted in a similar case, state university faculty members are “employed professionally to test ideas and propose solutions, to deepen knowledge and refresh perspectives.” A political fishing expedition through a professor’s files would make it substantially harder to conduct research and communicate openly with colleagues. And it makes the Republican Party appear both vengeful and ridiculous.

Issues: Agency records, academic freedom

20 January 2011

CEI and NASA: Lawsuit (ongoing)

After an appeal is denied, or a requester is still not satisfied with the response, a lawsuit for judicial review can be filed.

NASA Complaint

This is ongoing litigation in DC District Court.

The DoJ (acting for NASA) submitted a motion for summary judgement:

Motion for Summary Judgment by DoJ in CEI vs NASA (2010)

which CEI responded to:

CEI response to DoJ motion for summary judgment in CEI vs NASA (2010)

and DOJ replied to:

DoJ reply to CEI in support of motion for summary judgement in CEI vs NASA (2010)

Motions are currently under consideration.