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


  1. "for which no prior permission is required."

    You say that the awards do not require prior permission, but the ethics rules say otherwise:

    "Gifts with an aggregate market value in excess of $200 and awards of cash or investment interests offered by such persons as awards or incidents of awards that are given for these purposes may be accepted upon a written determination by an agency ethics official that the award is made as part of an established program of recognition:"

    Now, the awards in question clearly do fit the established rules for "an established program of recognition". I'm sure Hansen got approval beforehand, and from what I understand NASA wouldn't be obligated to release those forms anyhow. The whole lawsuit is just another round of harassment intended to disrupt climate research and sow doubt in the public about the science. But technically, there *were* forms that needed to be filled out. Hell, I don't even know what the problem would be if he *had* failed to do so; I would think since the awards are indeed fine for him to accept, any missed paperwork could just be filled out later with a reminder to do so beforehand with any later awards. It's a tempest in a teapot.

  2. You mention in the last paragraph that ATI is makin two contradictory arguments in separate lawsuits against the same agency. If the law were completely logical, this might cause severe problems for ATI and their lawsuits.

    However, the law is not always consistent.
    This is illustrated by the joke about a man who was sued by his wife for infidelity, and sued by his mistress for impotence. The man lost both lawsuits. Did this really happen? Dunno, but it could have. The law is like that.