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.

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

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.