FOI requests for unpublished data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Issues: Unpublished data, work-in-progress

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

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

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.

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