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.

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.

ATI & UVa: Reviewing exempted material again

As highlighted here a few weeks ago, the agreement between UVa lawyers and Chris Horner and David Schnare of ATI has raised more than a few eyebrows. The point at issue is how to deal with material that UVa thinks is exempt from release under Virginia FOIA, but that ATI thinks is not.

In federal FOIA, standard practice is to produce a Vaughn Index of all the material, and to have a judge, in camera, decide on whether any challenge to an exemption is valid or not. Under the UVa Consent decree, UVa has agreed to send ATI lawyers all material (under seal) for their review. Some obvious issues with this approach were discussed in the last post.

In a new letter to UVa, the Union of Concerned Scientists has questioned the sense of this and provided Virginia case law in support of a more federal-FOIA-like approach. Specifically, they cite Bland v Virginia State University (2006) where the Virginia Court of Appeal "encouraged the filing of allegedly confidential records for in camera inspection by the trial court and, if necessary, by an appellate court" in VFOIA cases where exemptions were an issue. As with federal FOIA, this seems to make much more sense.

In response, ATI put out a press release expressing surprise that anyone would question their professionalism.

What's good for the goose...

Issues: Appeals against claimed exemptions, Vaughn Index

AAAS on harassment of scientists

The Board of the AAAS put out a strongly-worded statement condemning the harassment of climate scientists via nuisance lawsuits, death threats and 'fraud' investigations:

We are deeply concerned by the extent and nature of personal attacks
on climate scientists. Reports of harassment, death threats, and
legal challenges have created a hostile environment that inhibits the
free exchange of scientific findings and ideas and makes it difficult for
factual information and scientific analyses to reach policymakers and
the public. This both impedes the progress of science and interferes
with the application of science to the solution of global problems.
AAAS vigorously opposes attacks on researchers that question their
personal and professional integrity or threaten their safety based on
displeasure with their scientific conclusions.

The progress of science and protection of its integrity depend
on both full transparency about the details of scientific methodology
and the freedom to follow the pursuit of knowledge. The sharing of
research data is vastly different from unreasonable, excessive Freedom of
Information Act requests for personal information and voluminous data
that are then used to harass and intimidate scientists. The latter serve
only as a distraction and make no constructive contribution to the
public discourse.

Scientists and policymakers may disagree over the scientific
conclusions on climate change and other policy-relevant topics. But the
scientific community has proven and well-established methods for
resolving disagreements about research results. Science advances
through a self-correcting system in which research results are shared
and critically evaluated by peers and experiments are repeated
when necessary. Disagreements about the interpretation of data, the
methodology, and findings are part of daily scientific discourse. Scientists
should not be subjected to fraud investigations or harassment simply
for providing scientific results that are controversial.

Most scientific disagreements are unrelated to any kind of fraud and are considered a
legitimate and normal part of the scientific process. The scientific
community takes seriously its responsibility for policing research
misconduct, and extensive procedures exist to protect the rigor of the
scientific method and to ensure the credibility of the research enterprise.

While we fully understand that policymakers must integrate the
best available scientific data with other factors when developing
policies, we think it would be unfortunate if policymakers
became the arbiters of scientific information and circumvented the
peer-review process. Moreover, we are concerned that establishing a
practice of aggressive inquiry into the professional histories of scientists
whose findings may bear on policy in ways that some find unpalatable
could well have a chilling effect on the willingness of scientists to
conduct research that intersects with policy-relevant scientific questions.

The AAAS Board was apparently prompted to issue the status following the Cuccinelli probes at U.Va and the ATI/CEI lawsuits at U.Va and NASA targeting Micheal Mann and Jim Hansen. In response, Chris Horner (of ATI & CEI) implied that criticism of his actions was equivalent to defending statutory rape. Nice.

ATI NASA lawsuit

On the heels of it's failed appeal to NASA on the issue of James Hansen's 'Permission to engage in outside activity' forms, ATI's Christopher Horner has filed suit against NASA in DC District Court:

ATI NASA Hansen FOIA lawsuit

This lawsuit is notable for a number of misleading claims and for the argument that Horner is pursuing which is in complete opposition to the argument Horner pursued (wearing his CEI hat) in his other NASA FOIA lawsuit.

The technical issue at stake in the original ATI FOIA request is whether forms filled out by NASA employees to request permission to undertake outside activity fall under the FOIA exemption for personnel matters. Since it is clear that the requests are for non-official activity (by definition), and that federal employees have an expectation of privacy for non-official activities, the terms for the privacy exemption would clearly seem to be met.

This can be overridden with a strong enough 'public interest' which can be weighed against the privacy rights of the individual. However, in order to demonstrate a 'public interest' (note this is not the same as whether a member of the public is interested), Horner has brought up a number of tangential, irrelevant and just plain false accusations against Hansen, both in the lawsuit and in the commentary he has published online. Without a clear argument that there is a real issue with respect to NASA compliance with ethics rules, the public interest test is unlikely to be met.

A few examples: Horner accuses Hansen of receiving $1.2 million in outside income for work done as a federal employee. He does not note in the commentary (though it is stated in the lawsuit), that most of these monies were for international prize awards which, like a Nobel Prize, can be accepted by federal employees and do not count as 'outside activity' for which permission must be sought^{*(see update)}. The relevent federal ethics guidelines are quite explicit (see part d.1, and example 1). The four prizes in question (the Blue Planet Prize $550,000, the Heinz award $250,000, the Dan David award ($333,000?) and the Sophie Prize, $100,000) are all examples of an

... award .. made as part of an established program of recognition:

(i) Under which awards have been made on a regular basis or which is funded, wholly or in part, to ensure its continuation on a regular basis; and

(ii) Under which selection of award recipients is made pursuant to written standards.

for which no prior permission is required.

Thus the insinuation that Hansen might not have complied with ethics guidelines by not filing 'Outside activity' forms for these prizes (which are not required) is clearly misleading (forms would have been required for speaking engagements and the like which apparently total to only $48,000 over 4 years).

Similarly, the claim in the lawsuit that Hansen received $720,000 from George Soros is simply fictitious.

Even more curious is the use by Horner of documents produced by NASA in the CEI case (for which Horner is the lead attorney). These consist of some "Outside activity" forms from Gavin Schmidt, specifically one related to his activity on the RealClimate blog (see the filings in this case for more details). These forms were released in court filings, not through a FOIA request, and so do not have any relevance for determining whether there is a statutory right to see these forms via FOIA.

The issue in question in the CEI vs NASA case is whether blogging was part of Schmidt's official duties (NASA says it was not, while CEI is arguing the opposite). However in this case, Horner is arguing that for the period prior to the filing of Schmidt's "Outside activity" form, Schmidt (and GISS) were out of compliance with ethics rules (which GISS and Schmidt have denied). For this to be the case though, one must at minimum accept that the RealClimate blogging was indeed not part of Schmidt's official duties (if it was part of his official duties, then obviously he could not be out of compliance with ethics guidelines related to 'outside activities'!). Thus, should this example be taken as evidence of NASA failing to uphold ethics rules, it would immediately undermine the argument put forward by Horner in the CEI case (that the RealClimate blogging was an official duty).

Having the same lawyer use two contradictory arguments in separate lawsuits against the same agency might be a sight to behold. One wonders if the judges will be impressed.

^* Update: As noted in a comment, while prizes do not require the filing of an outside activity form, they do require a determination that they satisfy ethics rules before they can be accepted.

Issues: privacy exemptions

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.

ATI & UVa: Reviewing exempted material

Amid some legal gamesmanship from ATI (filing suit (pdf) against UVa during the middle of an ongoing discussion), the Virginia Court has set out the timetable for release and review of exempted material in the UVa/Mann case:

ATI v. UVa Protective Order (pdf)

This is a consent decree which means it was negotiated by the lawyers and not imposed by force of law or by the judge. It has two parts, the first a 90 day schedule from today to release the non-exempt material (some of which has already been released). This seems rather a loose timetable compared to what ATI was demanding. However the second section is a little odd. This covers the case of ATI objecting to any (or all) of the UVa exemptions. Since it is almost guaranteed that ATI will object, it makes sense to set out a process by which this will be adjudicated.

In federal FOIA, this is normally done by the production of a Vaughn Index, which the 5th Circuit has ruled is actually mandated in the case of any challenge to exempted materials. A Vaughn index is essentially a listing of all the exempted material, along with the reason for exemption but which doesn't in itself reveal what the exempted material actually is (for obvious reasons). Thus it might be a list of dates and times of emails received or sent, the topic, and the reason why it is not being released. Disputes over the exemption can then occur, with the judge deciding, in camera, whether the exemption is valid or not.

However, in this case, UVa counsel has agreed to have all the exempt material reviewed under seal by the requesting attorney's themselves! While the attorneys (Horner and Schnare) have signed non-disclosure agreements under threat of contempt of court and other sanctions, it seems highly likely that anything found which remains exempt that is interesting enough will not actually remain confidential. Thus it is surprising that UVa agreed to this. To give an example, let's assume that material reveals personal information would clearly be exempt from disclosure (for instance a potentially embarrassing medical condition among Mann's correspondents). Given that knowledge, the requestors might start to investigate to find independent corroboration of this fact. This corroboration might be safely revealed without risk of contempt of court even though the initial impetus for that line of enquiry came from exempt material. Furthermore, nothing would stop ATI from insinuating that damning material existed but that they were unable to reveal it.

This review will not take place until September, and so it is possible the terms might change.

Issues: Appeals against claimed exemptions, Vaughn Index

ATI FOIA requests at UVa

ATI and Del. Bob Marshall have also put in FOIA requests under Virginia law for all of the emails requested by Ken Cuccinelli as part of his FATA inquiry. Note that the response to a CID under FATA (currently under consideration by the Virginia Supreme Court) has nothing to with what is releasable under FOIA.

ATI FOIA Request to UVa from Mann emails

Marshall had a previous request for Mann's emails turned down since the records did not exist at Virginia. If a backup server that might have responsive records has subsequently been found (as claimed in the ATI request), then anything responsive still needs to be filtered for privacy, communications not related to an official position, academic freedom concerns etc.

Virginia FOI laws can be found here.

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