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Friday, January 10, 2014

Virginia Supreme Court Hearing on FOIA, Scientific Research, and Michael Mann

by Michael Halpern of the Center for Science and Democracy, Union of Concerned Scientists, January 9, 2014

Emblazoned on the facade of the Virginia State Library, and steps from the commonwealth’s capitol and Supreme Court are the following words of the state’s most prominent former resident, Thomas Jefferson: “Reason and free inquiry are the only effectual agents against error. They are the natural enemies of error and of error only.” This was the setting for the second trip in as many years by the University of Virginia and climate scientist Dr. Michael Mann to the commonwealth’s highest court.
Photo: Morgan Riley/wikimedia
The first research privacy case was admittedly more ridiculous: an attorney general attempting to use the Virginia Fraud Against Taxpayers Act to access the private correspondence of a group of climate scientists (he wasn’t successful). This time, an organization called the American Tradition Institute is looking to access the same emails and handwritten notes through Virginia’s open records law. A circuit court found that exemptions in the Virginia Freedom of Information Act protected the scientists’ discussions from disclosure; UCS joined the American Association of University Professors on briefs in support of the university with the circuit court and high court. For full background, see this preview of the case.
I was in court today to hear the oral arguments, and have reproduced the points that were most salient to me (although I acknowledge that my shorthand may result in slight typos or a missed word or two, I have done so to the best of my ability. Another caveat: I’m also not a lawyer. But here goes).
Each side had approximately twenty minutes to present its case, and the justices were clearly engaged, asking similar questions of the two attorneys for the university and the attorney for ATI, David Schnare.
Dr. Schnare began by claiming that the university wished to be exempt from the open records law, interpreting the law so broadly that it would not release any documents. “The university would like you to write them out of the act…the exception swallows the rule,” he said. He argued that once research is published that all data should be made available.
“We by no means took the position that everything they were asking for was exempt,” Richard Kast, representing the university, later countered, explaining that the university had already turned over significant numbers of documents to ATI, and pointing out that Dr. Mann’s research and methods have long been publicly available; this is not what is at issue in this case.
Much of the discussion, as expected, was around how to construe the legislative intent of various exemptions under FOIA. The justices engaged all of the attorneys at length as to whether academic work was copyrightable, and to whom the work produced belonged, which would affect how it is considered for disclosure under current FOIA law. Justice Bill Mims expressed concern that any exemption under FOIA should be narrowly construed, and wondered if the American Tradition Institute’s understanding of FOIA law was equally plausible to the university’s.
“ATI’s interpretation flies in the face of the plain language of the statute,” replied Kast. “Long-established protocols for scientific research and scholarship” is what the legislature had in mind when constructing the FOIA exemptions.
The university’s Madelyn Wessel argued that scientists may build throughout a career off of previous unpublished research, data, and notes, and that what was once thought to be unimportant may be illuminating at some point in the future. Because of this, the idea that you would be able to tie specific email conversations to published research–which may then be disclosable–doesn’t work. She pointed to affidavits in the university’s court filing from UVa Provost John Simon as to how full disclosure would harm the research process. “The University of Virginia, and its scientists, would suffer demonstrable harm….and competitive disadvantages” with peers within the state and throughout the world, she said.
The court clearly understood the potential consequences of the actions it is being asked to take, with multiple justices talking about how the interpretive standard they set will apply not just to this case but to tens of thousands of cases. “A public university would be at such a gross disadvantage to a private university that nobody would ever want to work there,” suggested Justice Donald Lemons.
Yet the justices made clear that their decision would rest on their reading of the law and its intent.
“While I might agree with everything you just said,” said Justice Lemons to the UVa attorneys, “We have a statute to interpret.”
A decision in the case is expected on February 28, 2014.

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