The battle over global warming in Prince William County Circuit Court, focused on renowned climate scientist Michael E. Mann, was either an assault on science or a search for the truth, depending on whose briefs you were reading. But after reading all the briefs, a judge ruled Monday that Mann’s e-mail correspondence was exempt from the Virginia Freedom of Information Act and did not have to be provided to the American Tradition Institute, which was trying to delve into the discussions and data behind Mann’s conclusions that humans are causing the Earth to grow hotter.
The ruling is almost certain to be appealed, and retired Arlington Circuit Court Judge Paul Sheridan had told both sides he wanted the case properly briefed and argued so that the record would be in order for the Virginia Supreme Court. But then Sheridan ruled orally from the bench Monday, rather than issue a written opinion, and both sides were awaiting the hearing transcript before plotting their next step.
Mann issued a statement declaring, “A victory for science!” Now working at Penn State, Mann was doing climate research at U.Va. from 1999 to 2005 when he had voluminous correspondence with other climate researchers.
“This finding is a potentially important precedent,” Mann said, “as ATI and other industry-backed front groups continue to press their attacks on climate scientists through the abuse of public records and FOIA laws and the issuing of frivolous and vexatious demands for internal scholarly deliberations and personal correspondences.”
Sheridan ruled that Mann’s correspondence while a professor at U.Va. qualified as public records, but they were exempt from disclosure under one particular exclusion listed in the Freedom of Information law: “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 medical, scientific, technical or scholarly issues...where such data, records or information has not been publicly released, published, copyrighted or patented.”
David Schnare, the former EPA lawyer now representing ATI, said that while research was in process, the creative process should be protected. But once the research is published, the public should be entitled to see the process and data behind it.
Sheridan ruled that the FOIA exemption “is critical to protect the academic process,” Schnare said. “We agree that it is but we believe the judge went too far and prevented all transparency. And we believe that’s improper.”
The suit was filed by state Del. Robert Marshall (R-P.Wm.) after he and ATI made a FOIA request for Mann’s e-mails and learned that 12,000 e-mails were withheld by U.Va. Marshall and ATI sued in Prince William, and all the judges recused, requiring Sheridan to be brought in.
Both sides filed voluminous briefs, and Mann was allowed to intervene in the case as a third party, though his lawyer and U.Va. worked together. The Union of Concerned Scientists filed an amicus brief in support of U.Va. and Mann, and officials with the Association of American Universities, the American Council on Education as well as various U.Va. professors filed affidavits saying that releasing Mann’s e-mails would have a chilling effect on academic research.
Mann argued that his e-mails were not prepared in the conduct of public business, but were internal deliberations between scientists. In his own affidavit, Mann said that a prior release of some of his e-mails in an episode in England caused him to “endure countless verbal attacks upon my professional reputation, my honesty, my integrity, even my life and liberty.”
Schnare argued in his main brief that as a state employee, Mann’s correspondence was state properrty and had no expectation of privacy. He noted that the prior release of Mann’s e-mails had not chilled his communications or his career; he published a book, “The Hockey Stick and the Climate Wars” earlier this year.
Sheridan listened to about four hours of oral argument Monday before ruling. Schnare said he would have to review the transcript of Sheridan’s ruling before deciding what aspects to appeal. Sheridan had earlier rejected ATI’s argument that releasing the e-mails to Mann constituted a waiver of the FOIA exclusion.
Madelyn Wessel, associate general counsel for U.Va., said the FOIA exclusion the university used to withhold the e-mails “had no time limit,” regardless of the publication status of the research, and “thus our position that we can protect this material permanently was, I believe, validated.”
After Sheridan listed his reasons for dismissing Marshall and ATI’s suit, he asked U.Va. to prepare an order reflecting the decision. The transcript of Sheridan’s ruling from the bench “will essentially become the decision,” Wessel said.