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.

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: 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.

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

UVa responses to VFOIA requests

The University of Virginia has collated a timeline of requests and responses to multiple requests under Virginia FOIA. Since the full exchanges between requesters and the university are provided, it is a good way to see the issues that can arise.

First note, that while anything can be requested, the response depends on multiple issues - whether the records exist, whether they are 'public records', whether they fall under any exemptions in the FOIA law, and whether they are protected from disclosure under any other relevant laws (such as FERPA, which protects students personal information). Note that Virginia FOIA requires the requester to be a Virginia resident (which is why Chris Horner of CEI is now using ATI as a vehicle for these requests).

For any specific request, particularly for broad categories like 'all emails', it is not a priori obvious that a specific individual email that meets the search criteria is releasable. That generally needs to be decided on an email-by-email case. In response to Greenpeace (who requested records related to Pat Michaels), UVa rightly made it clear that no 'unfiltered' release of records would be possible.

Given then that extremely broad requests of emails will likely result in thousands of potentially responsive documents, someone needs to go through each of those records to assess the releasability. Federal and Virginia FOIA allow for the charging of fees to cover the cost of searching, redacting and reviewing documents, though this is sometimes waived in federal cases where agency staff are permanently assigned as FOIA support etc. Note that ATI initially challenged the application of fee for reviewing the documents, but UVa insisted that this was in fact permitted under guidelines from the VFOIA Advisory Council.

UVa therefore has requested deposits of fees prior to commencing any individual email review process, based on the reasonable estimate that one person can review roughly 90 emails an hour. (Other estimates from similar situations might give 70 to 100 emails/hour, but it depends clearly on the complexity of the material). UVa appears to be using law students to perform the reviews and are charging $25/hour for that. In cases referred to here, the number of documents is on the order of 35,000 individual records - implying eventual costs of review at $8000 or more (final costs to be decided once review is complete).

Issues: Fees, exemptions, standing

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.

Delg. Bob Marshall and UVa

Delegate Bob Marshall (Virginia State legislature) posted this FOI under the Virginia statutes (Dec 19 2009):

Marshall UVa

The request was refused due to non-existence of any responsive documents.

Issues: Prior existence of records