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