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.

UK ICO guidance on private email accounts

The UK Information Commissioner's Office (ICO) has just issued a guidance note related to whether official business communicated via private or non-governmental channels (such as via gmail, or SMS texts) can be considered 'held' on behalf of the the authority for the purposes of FOI.

Unsurprisingly (given past hints), the ICO has stated clearly that any communication that is related to 'official business' wherever it is stored (and on whatever medium) is FOI-able. Public authorities will now be requested to ask relevant people to search, and to document that search, their personal email accounts where relevant to any specific FOI request.

It is worth noting that this guidance goes considerably beyond equivalent US legislation where 'information held' is defined more strictly as being information that the agency has access to and control over - neither of which apply to gmail accounts.

However, while this makes sense in light of the UK law as written, it is likely to be problematic for a number of reasons. By its very nature, private email accounts will, in general, contain a much higher proportion of non-official correspondence, and inevitably, in a more informal style. There is no way to prove ahead of time that no official business was conducted via the personal account of any authority employee (any simple claim of this is likely to be appealed, and on past form the ICO will grant that appeal since no evidence can exist that demonstrates the negative in a comprehensive way short of an actual search of the account).

Thus for many FOI requests of a general nature (which are quite common in the US), such as requests for correspondence using specific terms or referring to a specific website or person, it will automatically require that all personal accounts will need to be searched. The ICO thinks this will be 'rare' but it practice it is likely to become far more common than he anticipates, even mundane. Given the search which, depending on the phrasing of the request, might lead to a huge amount of results, determination will need to be made as to whether each and every individual email counts as being 'official'. Who will determine this? If it is to be the authority FOI official, the privacy of the individual concerned will clearly be compromised - what if some of the potential responsive email expresses dissatisfaction with the job, and a desire to apply for something new? Or reveals an affair with a work colleague? If it is to be the individual themselves, there is an obvious issue with interpretation: determinations are related to legal precedent and require experience that any specific individual is unlikely to possess. (Of course, should this become to onerous, the exemptions for 'too much time needed' will apply). Employing a neutral third party to process the emails is conceivable but would clearly be an extra and unfunded burden on the authority.

Worse, FOI requests may start to specifically target private emails on the anticipation that the determination of official v. non-official will be indistinct, and perhaps a little arbitrary. Remember there is no restriction on what can be asked for - all emails containing an expletive perhaps, or emails related to something sexually suggestive. By the very nature of this ruling, all that is required is that there is a suspicion (justified or not) that some official communication might be caught by these terms to start the process of searching, and sifting through people's private mail. Regardless of how scrupulous any employee is in separating their personal and professional lives, they will still be forced to turn over their private mail.

While this may well not have been the intent of the law, the consequence of this guidance is that no-one working for a UK public authority has any private space in which to communicate. The irony is that the guardian of privacy law in the UK is also the Information Commissioner.

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...

ATI v. NASA: Settled?

Filings in the ATI lawsuit against NASA appear to indicate that the substantive issues have been settled:

ATI NASA Notice

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.

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.

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

Academic interest in impacts and limits of FOI legislation

As FOI requests have had an increasing public profile, and have been used in clear political contexts, it is unsurprising that the study of the effects of FOI on academic pursuits has become a subject of academic research itself.

Two recent efforts, a legal study by the American Constitution Society of US State and Federal FOI on how (and whether) academic freedom is protected against politically charged requests and a study being led by UCL Consitution Unit in the Dept. of Political Science on the impact of UK FOI on the university sector, are worth reading.

Both studies reference cases that have been highlighted here (along with a few additional ones) but the overall thrust is similar: how should one balance the interest in the public right-to-know against the interest in open academic inquiry and the efficient functioning of a public higher education system. (Any claim that there is no conflict is undermined by many of the examples given here and in the reports themselves).

The ACS report suggests that protection of academic freedom be given explicit protection in the law (as is the case in Canada, Scotland and a few other jurisdictions), as opposed to the current implicit protection that only partially (and selectively) works. The UCL study is more observational than advisory, but the same topic is clearly part of their remit.

The UCL study also encompasses the practical impact of the UK FOI law on academic and university practice, which, since the act has been greeted with mixed responses, is possibly more contentious than issues of academic freedom.

FOI legislation has important implications for academic research and communication is conducted, and the balance between positive effects (on data transparency etc.) vs. negative effects (chilling effects on academic discourse and study, disincentives to public speech, invasion of privacy) is determined by quite subtle details in language, case law and implementation. These issues need to be continuously looked at to determine whether the legislation is striking the right balance.

ICO FOI guidance for universities

The Information Commissioner's Office in the UK has issued a new guidance for Universities and other institutes of Higher Education on dealing with FOI and EIR requests.

This is welcome for a number of reasons, and though it is quite clear, it also raises some additional questions.

One thread comes across clearly in the advice, and that is that any exemption claimed that is subject to a public interest test must be thoroughly supported. In a number of the cases highlighted in the advice (the QUB/Ballie tree ring case, or the CRU dataset case), the decisions were based not on the manifest inappropriateness of the exemptions claimed, but on the specific lack of clear and sufficient support to invoke them. Given the lack of precedent in these cases, one might expect future ICO appeals to be defended more robustly if these exemptions are to be claimed.

There are some positive statements in the advice regarding whether peer review documentation - either reviews performed or received by a covered academic - is exempt under sections 36 and 41 of FOI. In the MRC case, the expectation of confidentiality in peer review, and the need for a 'safe space' for frank discussion of a proposal's merits were made clear and were upheld as valid reasons for an exemption which no public interest trumped. The ICO is careful to state that this is not a blanket exemption for all peer-review material, but it is hard to see how these justifications do not extend to all such requests, absent some overwhelming public interest which, though conceivable in theory, is hard to see ever applying.

Another welcome clarification is related to the exemption for "information intended for future publication". This will cover almost all unpublished data or analyses, as long as the requestee can demonstrate that the data was really being worked on with an intent for future publication at the time of the request. This will be tested in a specific case mentioned here previously where Steve McIntyre has appealed the refusal of UEA to release an unpublished analysis related to tree ring reconstructions.

More worrying are the ICO statements regarding personal email accounts. These are email accounts (on gmail, hotmail etc.) that are not controlled by the university. Since there is no statutory requirement for UK academics (or any other academics as far as I know) to solely use university email for academic or university communications there is a clear possibility that information that would be FOI-able if located on a university server will reside on private email servers. (NB. US government business at the Executive Office level - ie. the White House - does have a requirement via the Presidental Records Act to be conducted on official computers - but in this case there is an absolute exemption under US FOI for material related to discussions made by the executive - so it is not particularly relevant).

In the US, the first test of whether a document is FOI-able, is whether an agency has control of the document. In the case of a document on a gmail server, the answer is obviously no. It is hard to imagine what might compel Google to release any private email records to an agency (short of a court order, which is not within the power of the agency to produce). Fourth amendment protections against unjustified search would almost certainly trump any FOI justification.

The ICO, however, seems to suggest (section 2.3that "if the information held on a personal email account is related to public authority business, it is likely to be held on behalf of the public authority in accordance with s3(2)(b) of FOIA" and that FOI officers should "consider whether it is appropriate to ask a member of staff whether they hold information in a personal email account". There are no cases given of this occurring, but it is unclear under what authority a university could compel the turning over of information from a gmail account. This is clearly an issue which bears further watching, and will probably require a test case to determine the limits.

ATI & UVa: An intervention

As discussed here and here, a key oddity in the ATI vs. UVa VFOIA case is that UVa voluntarily consented to have ATI review all material in the scope of the request in order to challenge any redactions or exemptions that UVa deemed necessary.

Now, Michael Mann has filed a motion directly with the Virginia court to have this state of affairs reviewed citing privacy concerns and the clear lack of ability to safeguard legitimate interests should the process go according to the current plans.

In return, ATI has thrown up another whole suite of red-herrings and strawman arguments that have nothing to do with the point of law at hand. They are arguing that Mann has no standing to intervene (which would seem to be obviously ridiculous given that it is his email account that is being mined), and that the Mann challenge is a focused on the legitimacy of the VFOIA request in the first place. This last argument is transparently false, since UVa has already sent over the material requested that did not come under any valid exemptions with no objection having been raised. Mann's intervention is solely focused on the procedure for dealing with material that UVa thinks is exempt, but that ATI thinks the exemption is invalid. The ATI release does not actually mention the point in question at all.

Even more interestingly, Chris Horner is quoted as saying that Mann is merely "sputtering ad hominem and conspiracy theories". This is the same Chris Horner who called Jim Hansen a 'fanatic' and wondered "Why is NASA hiding James Hansen's ethics records?" (see here for a more reality-based view). No ad hominem or conspiracy theorizing there of course.

ATI additionally claims that "Dr. Mann wants, after the fact, for UVA to throw out policies he accepted as a condition of living off of taxpayer dollars, in order to cover up public information and to evade scrutiny." - a statement wholly at odds with the facts in this case, and indeed with the VFOIA legislation itself. Why are there any mandated exemptions to total public disclosure if that any recourse to them is "a cover up" to "evade scrutiny"?

Indeed, since the point of Mann's complaint is that the ATI lawyers cannot be trusted to deal professionally with any material under seal, one would think that they would make more of an effort to appear trustworthy. One would be wrong.