by Stephanie Paige Ogburn, E&E reporter, January 21, 2014
esday, January 21, 2014
In the spring of 2012, Andrew Dessler, a climate scientist at Texas A&M University, received a somewhat unusual request: The American Tradition Institute, a conservative group, wanted to search through his emails.
The group was seeking emails with specific phrases, although many of the words in question were not relevant to his research.
"They had terms like 'Michael Mann.' I know Mike; I don't collaborate with him. 'Hockey stick'; I don't work on that. 'Tobacco'; I don't smoke," Dessler told a room full of scientists last month, at the American Geophysical Union meeting in San Francisco.
Three climate scientists -- from left, Kevin Trenberth, Michael Mann and Andrew Dessler -- talked about how to deal with harassment last month at the American Geophysical Union meeting in San Francisco. Photo by Scott Mandia, courtesy of the Climate Science Legal Defense Fund.
Dessler, who works for a state-funded university, had become the subject of a public records request, filed under his state's Public Information Act.
He recounted this tale at a workshop where researchers presented on some of the legal issues they had faced. The roomful of attendees, mostly scientists, paid close attention, some taking notes, others nodding in agreement.
"The goal was, they were trying to find something embarrassing," Dessler continued.
The ATI is known for its attempts to discredit climate science, and this made Dessler, who had never received such a request before, nervous.
He knew he might be required to turn over hundreds, maybe thousands of emails that he had once considered private. "If I took 10 years of your emails, I could probably find some emails that weren't phrased the best way," Dessler explained.
The researcher experienced a brief, panicked moment when he considered deleting all of the emails -- an illegal act. "That would have been a terrible idea," he told the scientists.
Instead, he went seeking for advice. "I sent out some emails and said, 'This has happened to me,' and I got a bunch of emails back. I think Gavin Schmidt [a NASA climate scientist] emailed me back and said don't panic," Dessler recalled.
Schmidt and a number of others had already been on the receiving end of such requests and could offer lessons from their experiences. The advice helped Dessler calm down, and the scientist soon began the tedious process of searching, reviewing and turning over the requested correspondence.
Dessler's experience, while hardly the norm for a scientist, is becoming increasingly common. In recent years, the American Tradition Institute has filed various Freedom of Information Act (FOIA) requests against climate scientists working at public institutions.
Starting a legal defense fund
In response, the climate science community is organizing to support scientists who find themselves the subjects of such requests and training others to be aware that they could become targets.
In late 2011, Suffolk Community College professor Scott Mandia started the Climate Science Legal Defense Fund, which has raised money to support scientists challenging the legality of certain FOIA requests. The fund is now looking to hire an executive director and expand its work on behalf of scientists.
Along with other groups, like the Union of Concerned Scientists and Public Employees for Environmental Responsibility, it is also offering support to scientists who have either experienced such requests or feel they might.
The logo for the Climate Science Legal Defense Fund. Courtesy of the fund.
As scientists increasingly work to share their research findings with the public, it has also increased their visibility and made them targets, said Mandia.
"We're asking them to get out there, and when they get out there, boom, they're just shot," said Mandia. "So we want them to know that they have protection."
Public records requests, also often referred to as Freedom of Information Act requests, typically apply to researchers working at taxpayer-funded institutions, either at the state or federal level.
Chris Horner, who has filed many of the requests on behalf of ATI (ATI was recently renamed the Energy & Environment Legal Institute, or E&E Legal), is a senior fellow at both E&E Legal and the Competitive Enterprise Institute (CEI).
In filing such requests, said Horner, he is seeking to find evidence of scientists at publicly funded institutions using taxpayer resources inappropriately.
"[FOIA requests] always involved their use of a taxpayer-funded, FOIA-covered position and resources for advocacy, e.g., Intergovernmental Panel on Climate Change, Union of Concerned Scientists work [or work] with certain ideologically aligned reporters," Horner wrote in an email.
Echoes of 'Climategate'?
Others have suggested that the FOIAs amount to fishing expeditions, as climate skeptic groups seek to replicate the experience of "Climategate," an episode in late 2009 when emails from researchers were stolen from computers at the University of East Anglia.
Excerpts from those emails were published in an attempt to discredit the scientists. Skeptics said the emails showed that scientists were conspiring to hide data showing that the Earth was not in fact warming, although later inquiries exonerated scientists from charges of data manipulation.
Jeff Ruch, director of the group Public Employees for Environmental Responsibility (PEER), has seen an uptick in such requests since then. "Climategate sort of created a template that others are following," Ruch said.
Over the past few years, skeptic groups have filed requests against scientists at NASA, the University of Virginia; Texas A&M; Texas Tech University; the University of Alabama, Huntsville; the University of Delaware; and the University of Arizona.
If a request is filed with a state institution, state law varies on what scientists have to make available.
Dessler's home state of Texas, for example, has a very open public records law. So in most cases, scientists working at state-funded universities there are required to turn over all of what is sought in freedom of information requests with a few exemptions.
The openness of Virginia's public records law and whether it requires researchers to turn over certain email communications are the subjects of an ongoing lawsuit between the University of Virginia and ATI.
The lawsuit, which has reached the state's Supreme Court, hinges on whether climate scientist Michael Mann and other researchers at the university are required to turn over parts of their email correspondence in response to ATI's records request.
In September 2013, the ATI also sued the University of Arizona over its response to a public records request filed in 2011 against climate researchers at that university.
Defense and education efforts
Last month's meeting was fertile ground for Mandia's Climate Science Legal Defense Fund. First organized to support Mann's fight against the ATI's FOIA against him, it has since branched out to education efforts and, at the meeting, also offered one-on-one legal consultations with worried scientists.
Along with PEER, under which the Climate Science Legal Defense Fund obtained nonprofit status, the group has put on workshops about Mann's experience and helped scientists understand the laws on which documents they must keep to meet legal requirements of FOIA and which they can throw away.
The workshop Dessler spoke at was one such offering. It also included Ruch, of PEER, and researchers Mann, Kevin Trenberth, Ben Santer and Naomi Oreskes, who have all experienced attacks because of their work.
Mann praised the fund's efforts. "They have provided critical support for legal representation of scientists who would otherwise have to dig into their own personal finances to defend themselves against the onslaught of attacks by industry front groups," he wrote in an email.
In Dessler's case, Mandia said he was able to provide the researcher with access to legal counsel and contacts at PEER and the Union of Concerned Scientists.
"I can't tell you how helpful Scott was. He put me in touch with a few other people to talk to, and they basically talk you off the ledge," said Dessler. He ended up turning over a large number of emails to Horner. Afterward, he waited to see what would happen. But nothing did.
"It just disappeared into Chris Horner's hard disk," Dessler said.
Dessler also ended up on one of his favorite television shows, the PBS program "Frontline," which had decided to do a story on such requests. The researcher also used the opportunity to study Texas' public records law.
What he learned was that he can legally delete as many emails as he wants, and after that, they are no longer subject to public records requests. Now, he said, he deletes most of his emails after reading them.
When ATI's Horner realized "Frontline" had picked up Dessler's story, he submitted another records request. This one sought emails from "Frontline" and other journalists Dessler had communicated with, including reporters at The New York Times, the Associated Press and The Guardian.
But this time, Dessler was ready. "When they asked for my emails from 'Frontline,' there were none. Those were all gone," he said.
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