The fight by a conservative legal group and Del. Robert Marshall (R-Prince William) to obtain the e-mails written by leading climate change scientist Michael E. Mann while he was at the University of Virginia was shot down by a judge in Prince William County last year. But Marshall and the legal group appealed, and the Virginia Supreme Court has agreed to take the case and rule on whether the state’s Freedom of Information Act exempts unpublished academic research from being disclosed to the public, even after it’s been concluded or has been released elsewhere.
Mann has been gone from U.Va. since 2005 and is now at Penn State, where he published his book, “The Hockey Stick and the Climate Wars,” a reference to a hockey stick-shaped graph depicting the rise in global temperatures and the controversy surrounding it. While Attorney General Ken Cuccinelli tried and failed to obtain Mann’s work material by investigative subpoena, Marshall and the American Tradition Institute filed a detailed, 11-page FOIA request in 2011. That request wound up in Prince William County Circuit Court after U.Va. determined that there were more than 13,000 potentially responsive documents and about 12,000 were exempt under a FOIA clause which excludes “Data, records or information of a proprietary nature produced or collected by or for faculty or staff of public institutions of higher learning…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.”
Retired Arlington County Circuit Court Judge Paul Sheridan ruled for U.Va. in September 2012, but only did so orally from the bench. Following further briefing, Sheridan in April of this year entered an order that Mann’s e-mails were public record, as a state employee, but that the FOIA exemption arose “from the concept of academic freedom and from the interest in protecting research. Specifically, early research is protected for a variety of reasons. The concept of the churn of intellectual debate, evolving research, suddenly going up a dead end in your paths of inquiry, having the ability to come back, all this is part of the intellectual ferment that is protected.”
David W. Schnare, a former EPA lawyer from Burke who is general counsel for the American Tradition Institute, and Marshall appealed. The Institute, which changed its name last month to the Energy and Environment Legal Institute, has a mission which “holds governments accountable when they violate their own rules…and puts false science on trial.” In this case, the conservative institute wants to see how Mann reached his scientific conclusions while his work was funded by Virginia taxpayers.
Schnare wrote recently that “when citizens seek public records of state university professors, Freedom of Information rights can collide with the creative academic process.” He said that a Virginia Supreme Court justice asked during his attempt to get the case heard “how to ensure the former while protecting the latter. This is an issue of first impression across this nation and it deserves a utilitarian answer.”
Richard C. Kast and Madelyn F. Wessel, U.Va.’s lawyers, argued that Judge Sheridan got it right when he ruled that the university had properly interpreted FOIA. They acknowledged that there was no judicial precedent on the FOIA exemption, but that “the policy of open government under the act is not ‘absolute,'” citing more than 100 exemptions in Virginia’s FOIA law. They noted that the Institute and Marshall challenge the judge’s interpretation of “proprietary,” but that the conservatives “offer no alternative definition or explanation as to why the plain meaning of the term should not apply.” Plain meaning, in U.Va.’s view, being “a thing or property owned or in the possession of one who manages and controls them.”
Mann said in an e-mail to me that “I believe Judge Sheridan’s ruling protecting faculty research correspondence is correct and is precisely what Sen. Thomas Michie intended when he proposed his legislation to amend Virginia’s FOIA law and the legislature enacted in 1984 to enhance the ability of Virginia’s public colleges and university’s to protect the scholarly research endeavor.”
But late last month the Supreme Court agreed to take the case, which Schnare said happens in about 10 percent of the civil cases appealed to them. And the decision to take the case again opened up the possibility of an important ruling on what material produced by “government employees on government property using government facilities for government purposes,” as Sheridan wrote, is available for public review.