If you’re into predicting the outcome of a legal case based on the comments made by the judge, retired Arlington Circuit Court Judge Paul Sheridan’s questions to the lawyers in the climate change/Freedom of Information case Monday were pretty interesting.
When the lawyer for renowned climate scientist Michael Mann said that the FOIA request for his e-mails by Rep. Robert Marshall (R-Prince William) and the American Tradition Institute was calculated to annoy and harass Mann, Sheridan interjected: “How does that affect their legal right to FOIA production? Do we have a ‘purity of heart test’ before we apply the FOIA acts?”
Later, when Mann’s lawyer said that the process of peer review for research was “the bedrock of science,” Sheridan responded, “But is it the bedrock of open government? ...Why does the general public have to trust scientists? Citizens wonder about open government. Why don’t we have access to the process? ... FOIA is saying citizens have a right to see what government is doing.”
But at the end of four hours of argument, the judge did not grant ATI’s immediate request for 12,000 withheld e-mails written while Mann was a professor at U.Va., and did not rule that the school had waived its right to withhold the e-mails by providing them to Mann last fall. Instead, Sheridan acknowledged that however he rules, the case is headed to the Virginia Supreme Court to resolve several key FOIA issues the case raises:
• Are a university professor’s e-mails subject to a FOIA request, and can a university withhold them?
• If a FOIA request is denied or material is withheld as “exempt” from the law, can the party appealing that exemption to the courts use the pre-trial discovery process as it is used in other civil cases?
• If the documents sought in a FOIA request are given to another person, does that mean the exemption is waived and the documents must be given to all?
So the judge said he wants to compile a fully briefed, fully argued case that doesn’t go down a side alley before it ends in Prince William Circuit Court, and moves on to Richmond.
Both sides already had submitted some examples of withheld e-mails: U.Va. submitted 17 e-mails to show why they are exempt from FOIA, and ATI submitted 14 e-mails that show why the e-mails aren’t proprietary and should be made public. The e-mails are between Mann, who has since left U.Va. for Penn State, and other scientists discussing their research into global warming and other issues.
Sheridan said he will read the 17 “exemplar e-mails,” then ask for briefs before moving forward on the bigger issues.
It wasn’t the way either side expected the day to go. They both wanted the judge to rule on ATI’s demand for civil discovery, and ATI’s argument that U.Va. providing the e-mails to Mann made them open to the public. But both sides were satisfied that the judge was handling the case carefully and managing it with an eye toward its ultimate resolution in the state Supreme Court.
Marshall said he began the process in December 2009 with a FOIA request for Mann’s e-mails from 1999 to 2005. He was told the documents no longer existed.
But when Attorney General Ken Cuccinelli began his own investigation and found the e-mails did exist, Marshall renewed his request in 2010, and in January 2011 was joined by ATI.
The university produced about 1,800 e-mails but said another 12,000 e-mails were exempt from FOIA under Virginia statute 2.2-3705.4 (4).Marshall and ATI appealed the exemption to Prince William Circuit Court. In November, Mann was granted the right to intervene in the case, to protect his own interests in keeping his e-mails secret.
Some new details and arguments emerged in Monday’s hearing:
• Though Mann did not join the suit until November, U.Va. provided the 12,000 withheld e-mails to his lawyer, Peter Fontaine, last September. Fontaine said he needed the e-mails to prepare his argument, and to prepare the sample e-mails to submit to the judge. David Schnare, ATI’s lawyer, said Mann was not entitled to the e-mails as an ex-employee, a non-party to the suit and a non-resident of Virginia. Once they were released to someone like Mann, the FOIA exemption was waived and the e-mails should be released, Schnare argued.
• University lawyer Madelyn Wessel argued that Mann and U.Va. were on the same side in the suit, and that U.Va. reached out to him to suggest he assist in the preservation of his e-mails. Schnare responded that the University made no such gesture when Greenpeace sought the e-mails of two other U.Va. professors who were skeptical of climate change claims.
• Schnare also noted that when USA Today last year requested the correspondence of George Mason University professor Edward Wegman, who has attacked climate change science, GMU promptly provided 3,000 pages to the newspaper free of charge. Mann then used some of Wegman’s correspondence in his new book, “The Hockey Stick and the Climate Wars.” Schnare waved a copy of the book, with red tabs noting the references to the released information, at Judge Sheridan.
• Schnare also pushed for release of the e-mails in pretrial discovery, along with depositions and other standard motions practice in a Virginia civil case. University lawyer Richard Kast attacked that notion as an end run around the FOIA law. “If this made sense,” Kast said, “all a person would have to do is file a petition [appealing a FOIA denial], and then file a production [of documents] request.”
The hearing was Sheridan’s first in the case. All the Prince William judges recused because Marshall, a local politician, was involved, and retired Fairfax Circuit Judge Gaylord Finch heard part of the case and then also recused.
“Part of what we’re doing here is getting me educated,” Sheridan told the lawyers, saying the case was “a balancing act” between FOIA’s demand for open government and the right to academic freedom. He did not rule out revisiting the argument that U.Va. waived its FOIA exemption by releasing the e-mails to Mann, or that standard discovery rules should apply. He set no time frame for what he will do after reading the exemplar e-mails, or when the case might end.