New filings in the ATI/UVa FOIA case

The ATI/UVa case grinds on. The latest filings are (finally) substantive on the main point at issue - what is and what is not exempt under Virginia's FOIA, though you wouldn't know that from reading the ATI press release. Nor would you gather that the main reason for why this is all taking so long is because of ATI's cowboy lawyering and the filing of irrelevant (and dismissed) motions that sought to do various end runs around the main issue (such as demanding the documents in question under discovery, then seeking to withdraw the motion, then filing another discovery request etc.). The litany of misrepresentation and time-wasting tactics is outlined clearly in the UVa response (part I, part II) (pages 2-7). More interesting are the actual arguments in UVa's response regarding exemptions to the FOIA release, of which there are 123 in the Virginia statute. It turns out that 18 states allow relatively broad exemptions similar to the Va law, which states that the following need not be released:

Data, records or information of a proprietary nature produced or collected by or for faculty or staff of public institutions of higher education,... in the conduct of or as a result of study or research on ... scientific .. or scholarly issues,... where such data, records or information has not been publicly released, published, copyrighted or patented.

The other states with similar clauses include Colorado, Delaware, Georgia, Illinois, Indiana, Kansas, Kentucky, Maryland, Michigan, Nebraska, New Jersey, North Dakota, Ohio, Oklahoma, South Carolina, Utah and Vermont. (Notably Texas is not included). However, despite the ubiquity of this research exemption in legislation, there is very little case law to use as precedent. As we have discussed before, US federal FOIA has copious precedent to guide interpretations of exemptions, but the application of federal precedent to state cases is problematic. The UVa argument looks at case law in Ohio and Indiana, the drafting history of the Va exemption to support the argument that the 'exemplar' emails are exempt. Note that the specifics of the case are being decided on the merits of 14 example emails that were declared exempt initially by UVa, but that exist in the 'quasi-public domain' because of the UEA email hack. (This agreement was the negotiated position after the initial procedural order was vacated). Oral arguments are due in September.

ATI/Horner targetting Texas scientists with media contacts

Chris Horner (wearing his ATI hat this week) has been busy sending of Requests for Public Records (under the Texan version of FOI legislation) to at least two Texas scientists (Andrew Dessler at Texas A&M, and Katherine Hayhoe at Texas Tech U.). His conclusions from the responses he got back appear to be that journalists and scientists talk to each other, and that when scientists get caught up in political stories that really have nothing to do with them personally, they sometimes ask for, and get, advice on how to deal with the fallout.

It's a little hard to see how this is any kind of story, but it interesting that the requests themselves have no pretense of being related to science, or data, or anything of actual substance. The first request to Hayhoe was for:

All emails to or from a TTU account used by Professor Katharine Hayhoe (including as “cc”) and either or both of the following (also including as “cc”): Newt Gingrich, and/or Terry Maple And All emails sent or received by Professor Hayhoe (including as “cc”) citing or referring to one or more of the following: Newt Gingrich (or “Newt” or “Gingrich”), Terry Maple (or “Terry”, or “Maple”), American Solutions (including in the email address/domain), and/or “Environmental Entrepreneurs”

from 2007 to 2012. Maple was Gingrich's co-editor on the forthcoming "Environmental Entrepreneurs" book.

Dessler was initially targeted because of the NYT piece on Richard Lindzen (Justin Gillis was the journalist, Dessler was quoted, and the request was made the day the piece appeared).

All emails to or from an A&M account used by Professor Andrew Dessler of the A&M Department of Atmospheric Sciences during the period covered by this Request (including as “cc”) which cite or refer to one or more of the following in the Subject line, e-mail body or in the To, From or cc: fields: Richard Lindzen (or “Lindzen”) Michael Mann (or “Mann”), Hockey Stick, Climategate, “denier”, and/or “tobacco”. Applicable dates for both categories of records requested cover two and one half years, from November 1, 2009 through May 1, 2012, inclusive.

This is the request that 'informs' most of Horner's recent blog post. More recently (to both Dessler and Hayhoe) (dated Jul 5, 2012), Horner requested:

All emails, dated from November 1, 2009 through July 5, 2012, inclusive, to or from a TTU account used by Professor [Katharine Hayhoe or Andrew Dessler] during the period covered by this Request (including as “cc” or “bcc”) which cite or refer to one or more of the following in the Subject line, e-mail body or in the To, From, cc: or bcc: fields: Union of Concerned Scientists (or “UCS”, “ucs” as a freestanding word/term) ucsusa.org, Richard Ades, Frontline, Catherine Upin (email, xxxxxxx@gmail.com), Justin Gillis, Seth Borenstein, and/or Suzanne Goldenberg.

The latter four people are all journalists who cover climate science issues.

The conclusion one draws from this is that ATI is really only interested in scientists that speak in public on the issue, and relishes wasting their time (and intimidating them) should they have the temerity to speak to journalists, publishers or public relations people. Even their stated reasons for making these requests (which is an odd thing to include because that is non-material to the response) are quite blatant in implying that such contacts are somehow improper:

ATI seeks these records to determine certain uses of taxpayer-funded resources by Professor [xxxx] including to what extent (if any) they are used in the performance or pursuit of certain “global warming” related activism, combining political or policy advocacy with dedicated publicly funded resources.

As if working on climate issues meant that you are not permitted to be active, or have opinion on policies. There is an ever-present danger of these kinds of requests creating a 'chilling effect' on public speech by scientists - but neither Dessler or Hayhoe seem minded to be too bothered by this, regardless of what scandalous insinuations ATI and Horner keep inventing.