Academic Freedom and FOIA

In the Cronon/U. Wisonsin case, the university made an argument that exemptions to the Wisconsin Open Records Act effectively protect academic freedom, defined by them as the right of academics to "to pursue knowledge and develop lines of argument without fear of reprisal for controversial findings and without the premature disclosure of those ideas".

There is no explicit definition of academic freedom or exemption in either Wisconsin or Federal FOIA, and so the claim that academic freedom is protected rests on an interpretation of the statute.

In the UVa case, a letter from 15 organisations, including the AAUP, have urged UVa to apply the same interpretation to the Virginia statute.

The basis for an effective 'academic freedom' exemption, is given by the U. Wisconsin counsel:

5) Intellectual communications among scholars. Faculty members like Professor Cronon often use e-mail to develop and share their thoughts with one another. The confidentiality of such discussions is vital to scholarship and to the mission of this university. Faculty members must be afforded privacy in these exchanges in order to pursue knowledge and develop lines of argument without fear of reprisal for controversial findings and without the premature disclosure of those ideas. The consequence for our state of making such communications public will be the loss of the most talented and creative faculty who will choose to leave for universities that can guarantee them the privacy and confidentiality that is necessary in academia. For these reasons, we have concluded that the public interest in intellectual communications among scholars as reflected in Professor Cronon’s e-mails is outweighed by other public interests favoring protection of such communications.

This references a balance between differing public interests, and like many 'balance' arguments, is potentially open to judicial review.

Unsurprisingly, ATI feels strongly that the balance should be in favor of disclosure, and may well sue to get a review of the eventual UVa redactions (as CEI has done in the NASA case).

In Virginia law, the relevant passage for similar exclusions would be:

Data, records or information of a proprietary nature produced or collected by or for faculty or staff of public institutions of higher education, other than the institutions' financial or administrative records, in the conduct of or as a result of study or research on medical, scientific, technical or scholarly issues, whether sponsored by the institution alone or in conjunction with a governmental body or a private concern, where such data, records or information has not been publicly released, published, copyrighted or patented.

Update: UVa has responded to the letter with a declaration that UVa will use "all available exemptions" consistent with following the letter of the law.

Issues: academic freedom

ATI and NASA

The American Tradition Institute (ATI) is another in a long line of astroturf organisations in DC who shuffle through the same small number of activists. The only two people who appear to be active in this organization are Paul Chesser (formerly of the Heartland Institute and John Locke foundation), and the 'director' of their Environmental Law Center, Chris Horner, who is also an attorney for CEI.

They put in a request in 2011 for records related to Jim Hansen's (GISS) outside activities. This was mostly refused on the 'personal information' FOIA exemption (NASA Response).

ATI have now appealed that decision. Curiously they are using information gained via the CEI vs NASA lawsuit in DC district court, being pursued by.... Chris Horner.

Issues: FOIA Appeals, Personnel records, official duties

CEI and NASA: Lawsuit (ongoing)

After an appeal is denied, or a requester is still not satisfied with the response, a lawsuit for judicial review can be filed.


NASA Complaint

This is ongoing litigation in DC District Court.

The DoJ (acting for NASA) submitted a motion for summary judgement:

Motion for Summary Judgment by DoJ in CEI vs NASA (2010)

which CEI responded to:

CEI response to DoJ motion for summary judgment in CEI vs NASA (2010)

and DOJ replied to:

DoJ reply to CEI in support of motion for summary judgement in CEI vs NASA (2010)

Motions are currently under consideration.

CEI and NASA: Appeal

All US agencies have an internal appeals procedure if requesters are unsatisfied with the initial response. CEI was unsatisified with responses to their first three FOIA requests.


Horner Appeal


The appeal was rejected for two of the three requests, and for the third, it was remanded to GSFC for a 'do-over'.

GISS FOI Response to Appeal

Follow-on: Lawsuit (ongoing)

Issues: FOIA Appeals, definition of agency records

Judicial Watch and NASA: Part I

Judicial Watch (Sourcewatch) submitted the following Dec 4 2009 request to NASA:


Judicial Watch FOIA Request #1

Note the similarity to this earlier CEI request. The response to both was posted in the GSFC Electronic Reading Room in Dec 2009 and with a further update in April 2010.


Use of information: JW blog posts: Jan 2010, Apr 2010; NASAWatch; Rabett Run

CEI and NASA: Part III

In January 2010, CEI filed another request to NASA GISS.

This was notable for the breadth of the request (which would lead the Dept. of Justice to throw it out as being impossible to serve), but also for the widening of the lists of scientists targeted. Of the 17 scientists named, one 'Ron Milley' does not exist, and 3 do not work for 'NASSA' [sic] at all.

Commentary at Dot Earth.

CEI and NASA: Part II

In January 2008, CEI made a FOI request for all communications by a specific scientist, Gavin Schmidt, related to the blog Realclimate.

FOIA Request #08-040


The issue originally in play here is to what extent correspondence that deals with non-official activities is an 'agency record'.


Issues: Definition of agency records

Follow-on: Response, Appeal (upheld), Second Response, Lawsuit (ongoing)

CEI and NASA: Part I

The Competitive Enterprise Institute (CEI) (Sourcewatch) is in the vanguard of submitting FOI requests for climate scientist communications. Their principle targets have been the NASA Goddard Institute for Space Studies in New York, NCAR in Colorado, the U. of Virginia, and the EPA among others. Their requests to NASA started in August 2007 and first concerned the minor correction of the GISTEMP dataset:


FOIA 07-175


FOIA 07-172


The responses were the posted online in the GSFC Electronic Reading Room.

Follow-up: Appeal (denied), Lawsuit (ongoing).