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.

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