ATI and the Mann case update

While I was a bit busy with other things (my PBS interview generated quite a lot of interest as well as hate mail) there was other news. Most notable was the ruling against ATI’s FOIA case with the University of Virginia. I don’t have any press release yet from ATI, but I’ll pass it along when it becomes available. Here’s a summary from ClimateScienceWatch, who seemed giddy at the news:

A Virginia court has affirmed the University of Virginia’s right to withhold confidential scholarly communications, thus ruling against the global warming denialist American Tradition Institute’s demand to make public climate scientist Michael Mann’s documents and email correspondence with dozens of other scientists during his time at UVa. This is an important victory in a case that threatened to send a chilling message to university scholars that they could no longer  expect to engage in personal communications without having the whole world reading over their shoulders.

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66 Responses to ATI and the Mann case update

  1. Kurt in Switzerland says:

    A scientist who is certain of his integrity and the soundness of his methods (which should already be confirmed by peer review, n’est-ce pas) need not be concerned about having the whole world looking over his shoulders. Indeed, it should be expected for any scientist on a publicly-funded grant.

    This is far from over. Appeals being filed already?

    Andy, share some of the hate mail you received as a result of the PBS interview. Your comments appeared far from anything which should have generated such a reaction.

    Kurt in Switzerland

  2. Leo Morgan says:

    The taxpayer pays the salary of the people preparing these emails, on work computers, during work time. covering the topic of their work, and these scholarly communications are somehow confidential and exempt from Freedom of Information Laws?
    Why?
    The contents of those emails must be extremely disturbing if they believe they would create an even worse impression by releasing them than they do by withholding them.
    What were the grounds of the dismissal- the fifth amendment?

  3. pat says:

    18 Sept: WaPo Local: Tom Jackman: U.Va. wins key ruling in Prince William global warming-FOIA case involving Michael Mann
    http://www.washingtonpost.com/blogs/the-state-of-nova/post/uva-wins-key-ruling-in-prince-william-global-warming-foia-case-involving-michael-mann/2012/09/18/6c422d98-0133-11e2-b257-e1c2b3548a4a_blog.html

    18 Sept: Nature News Blog: Jeff Tollefson: Judge preserves privacy of climate scientist’s emails
    http://blogs.nature.com/news/2012/09/judge-preserves-privacy-of-climate-scientists-emails.html

  4. kwg1947 says:

    Andy, I agree with Kurt. Belly buttons, I know. LOL

  5. bushbunny says:

    Does the same thing apply to published articles and books already in the public domain? I don’t think so? As Kurt mentions if someone is paid money to do research their research should be peer reviewed and made public. You remember that famous case when the doctor who blew the whistle on an anti-prenatal sickness drug that caused deformities, actually did another and he was found his research results were not all what they were supposed to be? C’est la vie.

  6. Chris W says:

    Interesting. FOI is basically meaningless then…

  7. Otter says:

    Is ‘Andy’ Swiss for Anthony?
    Just kidding, Kurt! You should see what they do to My name….

    But yes. We want to hear the hate!

  8. Kurt in Switzerland says:

    Corrigendum: s/b “Anthony” not “Andy”! h/t to Otter
    Excuse: I sometimes post comments over at Mr. Revkin’s NYT blog.
    http://dotearth.blogs.nytimes.com/2012/09/12/academy-finds-mixed-climate-impacts-on-himalayan-glaciers-water-supplies/

    Apologies to Mr. Watts, should he be offended by any comparison.

    (Personally, I admire both: neither is afraid to challenge the choir nor discredits himself by censoring opposing views. Both appear genuinely interested in understanding the actual data and the underlying science, even if Andy Revkin is overly confident in the ability of “Climate Science” to police itself). Peer Review is in need of an overhaul; politicians, bullies and alarmists will always trump true scientists in any “consensus-building” exercise.

    Kurt in Switzerland

  9. When the Faux Democracy government, funds a Faux Science Club, to create a Faux Hypothesis to frame a benign, nearly inert, three atom combustion by-product….then it is in the BEST interest of the Faux Judicary to ignore FREEDOM of Information requests to protect the unscientific and illegal collusion necessary to create and expand the control of the Faux Democracy. Most lawyers and judges enter that, second oldest of prefessions, because they cannot do math or science. Career advancement then rests on reliable service to the Faux Democracy and not simplistic restraints of honesty and fair play. Appeal all you want, the airheads on the Supreme Court have already stated that illegal mandates are unconstitutional, unless viewed as a tax….and all the government wants to do is to tax AIR.

  10. oldseadog says:

    Otter, and Mr. Watts,
    No, we don’t need to read the hate mail. These folk are sad enough already, we don’t need to add to their inflated egos by repeating what they say. Just ignore them.
    Sticks and stones etc.

  11. richardscourtney says:

    Anthony:

    Thankyou for this update.

    I fail to understand the rejoicing in the link you provide. The judge has done what he said he would do to enable the case to continue.

    In the previous transcript of the court hearing the judge told both ‘sides’ in the case to provide documents suitable for provision to the Supreme Court because he assumed an Appeal whatever decision he made.

    Now the judge has decided to sustain the status quo until the Appeal he anticipates. Clearly, he could not have made any other decision when he anticipated that the case would continue to Appeal. And his decision means nothing except the judge is expecting the case to be passed to the Supreme Court: he had already written into the Court’s record that he expected that.

    Richard

  12. Dale says:

    Kurt, speaking of bullying, it’s come out today (officially) that the CSIRO over here in Australia is in big trouble. A group of sacked CSIRO scientists have come out “alleging mismanagement and bullying are rife”. http://www.smh.com.au/national/scientists-bullied-or-forced-out-of-csiro-20120917-262yb.html

    A Govt inquiry found 60 cases of complaints from sacked scientists accusing bullying within CSIRO. One, Maarten Stapper (agriculturist specialising in healthy soils) was sacked for speaking out against GM crops and advocating a healthier soils program. The Australian Govt receives massive cheques from Bayer and Monsanto to keep pushing GM via CSIRO.

    Another, Trevor McDougall (arguably one of the world’s top oceanographers publishing highly regarded papers on ocean circulation and thermodynamics) spoke out against the IPCC models of ocean circulation and was sacked shortly after.

    So it’s true what you say that politics and alarmists will trump true scientists.

  13. Bob says:

    “Scientists” may be the only class of public employ exempt from FOIA

  14. cedarhill says:

    Some comments at other sites speculate the judge decided the case on self-interest. The circuit judge stated the case was going up on appeal. He lives in the community around UVA. Their conclusion was “Doh? Why not keep the friends and family happy”. Sounds about right. This may or may not be appealed to SCOTUS, eventually. Perhaps a Federal suit later. It’s all about delay by UVA and proponents of continuing the money train. Transparency, to most on the Left and Greenies seem to be a point of deception and not illumination.

  15. Rob says:

    Tax payer funded???

  16. vukcevic says:

    Can’t understand why Mann is such a big climate ‘hockey stick’. He made his name as the AMO descriptor and reconstructor. Was that a scientific breakthrough?
    I wouldn’t say so. Even I got results which are more accurate (1860-2010) :
    http://www.vukcevic.talktalk.net/AMO-recon.htm

  17. Shevva says:

    As someone over at BH pointed out this is just the judge chickening out and handing it to the appeals court.

    And reading through above Richard has said as well.

  18. Katherine says:

    Can ATI appeal the decision?

  19. Ian H says:

    As this ruling goes against the generally understood law in this area I’d say an appeal has a very good chance of success. It seems judges are not immune to noble cause corruption.

  20. Man Bearpig says:

    Oh well shrug your shoulders and wait for the appeal or next FOIA request .. (Mr Mann – It won’t go away!)

  21. Peter Plail says:

    richardscourtney says:
    September 18, 2012 at 3:27 am

    Thank you for that dose of reality – it does somewhat dent the claims of “victory” from ClimateScienceWatch.

  22. prjindigo says:

    Seriously, if you can’t keep work and play in separate e-mail addresses, you’ve already failed as a scientist.

  23. kadaka (KD Knoebel) says:

    prjindigo said on September 18, 2012 at 5:12 am:

    Seriously, if you can’t keep work and play in separate e-mail addresses, you’ve already failed as a scientist.

    So slandering and crushing those who are dissatisfied with your work, find fault with your work, and doing the same to anyone doing anything resembling agreeing with those people, isn’t part of work suitable for work email, but it’s “play” instead? At least for scientists?

  24. chris y says:

    Kurt in Switzerland- you say

    “Personally, I admire both: neither is afraid to challenge the choir nor discredits himself by censoring opposing views.”

    I enjoy your comments over at DotEarth, as well as the responses from the alarmist/Malthusian camp. I had one comment censored by DotEarth (not sure if Andy was involved, since he does not work for NYT). I quoted some gems from Michael Tobis to highlight his methods, in response to a post Andy made advertising Tobis’s new website, something 3.0 or other.

    Ironically, the Tobis quotes I included ‘did not meet the standards’ of The Grey Lady.

  25. observa says:

    “Seriously, if you can’t keep work and play in separate e-mail addresses, you’ve already failed as a scientist.”

    I think that’s the important point here that these people are at work in our employ as taxpayers and when they are involved in a controversy of such importance then the rules of condfidentiality no longer apply. If it’s good enough to call for directors and execs of private companies to come clean when there is controversy surrounding the effects of tobacco, an Erin Brokovich expose’, a thalidomide, etc, then it’s certainly good enough in this case after the Climategate emails and the various Exaggerationgates, etc came to the fore.

    There is considerable billowing smoke to indicate a dangerous public fire behind it and there is community right to know here that overrides the normal need for privacy in academic and professional discourse. It is that very academis rigour and professionalism that has been called into public question now.

  26. Peter Crawford says:

    prjindigo says:
    September 18, 2012 at 5:12 am
    Seriously, if you can’t keep work and play in separate e-mail addresses, you’ve already failed as a scientist.

    Correct. And if , like M.Mann, you spend your taxpayer-funded working day bitching, bickering, and bull*****ing on Facebook or Twitter you should get the boot.

  27. Robert Austin says:

    If Mann’s emails are even remotely as appalling as the “conversations” in the SkS secret forum dump, I can see why they are so desperate to avoid FOIA.

  28. starzmom says:

    Has Mann filed his defamation lawsuit yet? There may be more than one way to do this.

  29. I’ll provide a more chilling and restrictive environment- when govts provide monies for scientific research and select their recipients on the basis of political considerations. Isn’t it strange that
    those groups that used to (and still do) insist upon the need for diversity, reject diversity when it means those not part of the herd happen to oppose their cherished beliefs.
    Now, can anyone name a single scientific discipline whose subject matter is thoroughly understood and can be considered “settled,” with no issues in doubt? I can’t think of a single one : not astronomy, not physics, certainly none of the social sciences, which haven’t even achieved a
    reliable level of categorization of their subject matter.

  30. Mike Mellor says:

    I can’t possibly be the only one to have posted a comment on ClimateScienceWatch?

    “One Response to Court rules for Univ. of Virginia and Michael Mann against denialist inquisition – scholarly e-mail and documents are protected communication”

    The mod must be deleting everything?

  31. David L says:

    The chilling message that the whole world would look over their shoulders. Welcome to my world in big Pharma. I have no protection. All my work is always available to any agency such as FDA for inspection. If a product is on a legal hold then every communication is locked down and available for legal purposes. It’s against the law to delete any email under legal hold. I’m glad scientists can sneak around without worry anyone will indpect their world and yet we all just need to believe them at their word. Nice.

  32. KR says:

    Good.

    “If you give me six lines written by the hand of the most honest of men, I will find something in them which will hang him.” – Cardinal De Richelieu

  33. Jim Clarke says:

    I use to work for a local fire department. We were not allowed to delete any emails and keep a record of all correspondence done in the name of the department. If there was ever a request for any said documents, we were expected to produce them quickly and without question! That is the way it should be when one is paid by the tax payer.

    If the University and Mann want to keep their correspondence private, then do not accept any money from the tax payers. As tax payers, we should refuse to grant them any funds until they stop keeping work secrets from those who fund their work.

  34. Terry says:

    You should consider creating a post on that hate mail. Put their nastiest stuff up for display for all to see just how nice these people really are. Should make for interesting reading.

  35. John@EF says:

    In my opinion, Chris Horner is nothing but a professional harasser operating under an umbrella of vested interest front organizations. He has no interest in truth seeking; it’s all about muck mining for anything spin-able. Unseemly. Good decision.

  36. John Brookes says:

    So will the harassment of Dr Mann continue? Climate science is surely the most scrutinised area of science now. Aren’t you skeptics just harassing him because you don’t like his message?

  37. sorepaw says:

    Subject to appeal to the Virginia Supreme Court.

    It’s interesting how DeSmog Blog and other such outlets have chosen not to mention that. I had to go to the Washington Post story to verify it.

    Has anything further come out about Michael Mann being offered a new professorship at UVA, which offer was then abruptly withdrawn? In the hullabaloo over the firing and reinstatement of UVA’s President, that little detail seems to have gotten lost.

  38. Steve Keohane says:

    John Brookes says:September 18, 2012 at 8:15 am Aren’t you skeptics just harassing him because you don’t like his message?
    No, I don’t like his lies and phoney science.

  39. Jimmy Haigh says:

    John@EF says:
    September 18, 2012 at 8:10 am

    John Brookes says:
    September 18, 2012 at 8:15 am

    Here come the faithfull.

  40. RHS says:

    John Brookes, it isn’t so much that we don’t like his message as much as we don’t believe it without the underlying data. Mann has an agenda and his agenda is “everyone must believe blindly” because he is better/more educated than us. There are two parts to reality. One is, the public likes to make an educated decision without being spoon fed BS. The other is, he isn’t better than anyone else.

  41. Doug in Seattle says:

    What we have here is an example of one of the big problem that plagues America. What we are seeing is that money buys lawyers, who if really cleaver, can delay a case through the court system without a decision being reached. With enough money, the decision can be delayed until the other side runs out of money.

  42. D. J. Hawkins says:

    richardscourtney says:
    September 18, 2012 at 3:27 am
    Anthony:

    Thankyou for this update.

    I fail to understand the rejoicing in the link you provide. The judge has done what he said he would do to enable the case to continue.

    In the previous transcript of the court hearing the judge told both ‘sides’ in the case to provide documents suitable for provision to the Supreme Court because he assumed an Appeal whatever decision he made.

    Now the judge has decided to sustain the status quo until the Appeal he anticipates. Clearly, he could not have made any other decision when he anticipated that the case would continue to Appeal. And his decision means nothing except the judge is expecting the case to be passed to the Supreme Court: he had already written into the Court’s record that he expected that.

    Richard

    The big assumption here is that the Supremes will agree to hear the appeal. You can Google it, but only about 2% of the petitions that go before SCOTUS are accepted or otherwise acted upon. If you aren’t a lucky lottery winner, the lower court ruling becomes (or affirms) precedent. The judge didn’t do the public any favors by his ruling.

  43. D. J. Hawkins says:

    Katherine says:
    September 18, 2012 at 4:29 am
    Can ATI appeal the decision?

    Chances that the Supreme Court will issue a writ of certiorari are slim to none, and Slim left town.

  44. R.S.Brown says:

    In the Commonwealth of Virginia, a citizen’s right to make requests for
    information from Virginia and its political subdivisions and their employees is
    enshrined in a series of laws, passed by thier elected representatives, signed by their
    Governor, and is now being interpreted, instance by instance, by their court system.

    See:

    http://198.246.135.1/cgi-bin/legp504.exe?000+cod+2.2-3700

    for the sequence of Virginia FOI laws.

    Remember, this case is based on Virginia law, applied to a Virginia institution (UVa)
    concering work done on instititutional equipment by a former employee (Dr. Mann) .

    This recent ruling comes from a Virginia court dealing with Virginia law.
    It will be appealed (probably) to a Virginia appeals court based on assignments of
    error having been made by
    this judge in his interprtation/application of
    Virginia law.

  45. RB says:

    Richard Courtney,

    Quite right, but in fact I think the judge has done more than that if ATI’s recent release is an accurate account of what happened. He dismissed First Amendment and academic freedom arguments, accepted ATI’s arguments that FOI applies, apparently dismissed out of hand Mann’s intervention essentially calling it a nuisance, and sent the parties to appeal based on the interpretation of the statutory word “proprietory” and the breadth of the relevant FOI exemption.

    It only needs the appeal to disagree with that intepretation or draw a more narrow view of the extent of that FOI exemption and the decision is turned on its head.

  46. Political Junkie says:

    @ D. J Hawkins,

    The next step is th VIRGINIA Supreme Court.

  47. richardscourtney says:

    D. J. Hawkins:

    Sincere thanks for your message addressed to me at September 18, 2012 at 8:58 am.

    Please note that I am not an American so my only view is the transcript of the hearing. When that transcript appeared in April nobody made your point that says

    The big assumption here is that the Supremes will agree to hear the appeal. You can Google it, but only about 2% of the petitions that go before SCOTUS are accepted or otherwise acted upon. If you aren’t a lucky lottery winner, the lower court ruling becomes (or affirms) precedent. The judge didn’t do the public any favors by his ruling.

    Indeed, on April 17, 2012 WUWT copied an article from the NYT by Tom Jackman. The WUWT thread is headed “Prince William climate case judge already anticipating the appeal”.

    The article and the thread did not mention your point.

    So, from a basis of my genuine ignorance of the fact, I would welcome confirmation of your statement that it is a “lottery” whether the case can go to Appeal. It does seem to have great importance.

    Richard

  48. David Ross says:

    Apologies for being off topic. But can anyone give me advice on embedding images into the body of articles submitted to WUWT. Also, embedding hyperlinks into article text.

    [Reply: You must be a moderator to embed images. But you can cut and paste the image address, and readers can click on the URL to view it. — mod.]

  49. techgm says:

    The most recent issue of the UVA alumni monthly magazine devoted most of its pages to the dismissal and reinstatement affair of Dr. Teresa Sullivan as University President. The recurring assertion/speculation as to the justification for the dismissal was the U’s budget. Yet, there was not one mention or even a hint in all that ink that spending $100Ks on dodging the FOIA request was a factor, despite such a sum being non-trivial to that budget. The sum will only increase to answer appeals.

  50. John West says:

    John Brookes inquires:
    “So will the harassment of Dr Mann continue?”

    As long as he continues to engage in Zohnerism to forward a cause while claiming to be a scientist, he’ll be harassed.

    “Climate science is surely the most [scrutinized] area of science now.”

    No. Medical research is orders of magnitude more scrutinized and there’s still “frauds” perpetrated in that field as well.

    ”Aren’t you skeptics just harassing him because you don’t like his message?”

    No, we’re harassing him because we don’t like his methods. There’s nothing particularly egregious about the message itself. It’s not as if Mann is saying slavery is good or something particularly mala per se. The Mann message is basically that the world is warming unprecedentedly due to anthropogenic carbon dioxide emissions that if not severely controlled will cause catastrophic consequences. There’s nothing particularly harassment worthy in that message except for it simply not being substantially supported by sound scientific inquiry. Like the man who shouts fire in the crowded theater, if there’s a fire he’s a hero, but if there’s not he’s a criminal certainly deserving of more than harassment, but what if there’s a little smoke or some other indication that there might be a fire even if there really isn’t a fire worthy of panicked evacuation, then our fire shouting man is an alarmist that’s probably going to at least get some well deserved harassment.

    So, what is Mann; hero, criminal, or alarmist?

  51. atheok says:

    The WashPo and alarmist mongerers are truly lost.

    This judge walks a very fine fence line. If he found that all information was FOI accessible, then he endangered the ‘proprietary’ exemption. Instead he has found for the proprietary information with a broad brush.

    In other words, he felt it was not his position to dictate precedence in this case. He found that the proprietary information is ‘exempt’, for all time if need be. This is in spite of the Federal law and precedence rulings are for the broadest transparency findings.

    The judge’s ruling is handed to UVA to write up. Why? Because it is UVA that must decide what is ‘propietary’ and what is not. All communications without propietary information should be turned over to ATI.

    When this case goes forward, and it will, a key determinant for the next ruling will be whether UVA truly releases non-propietary emails and files. A release that should be substantial since Mann is not working on UVA research and apparently neither is UVA. Failure to be honest about what constitutes proprietary information and we can expect the next ruling (or a future one in Federal court where FOI law is derived from) and we can expect a precedence ruling along the lines of “UVA must prove ‘propietary’ for each and every email.

    UVA (Forget Manniacal, he is now irrelevant to UVA emails courtesy the Virginia Judge) now walks a thinner fence than the Judge did. Release the bulk of the emails and ATI may consider the suit complete. Release only what they’ve been forced too so far and let the High Courts force the issue.

    Lurking, perhaps ever lurking, are the emails the mysterious FOIA’d whistle blower contructed into a sword of Damocles. If thee are not honest UVA, dishonor and perdition await!

  52. David Ross says:

    I wrote:

    Apologies for being off topic. But can anyone give me advice on embedding images into the body of articles submitted to WUWT. Also, embedding hyperlinks into article text.

    Mod. replied

    [Reply: You must be a moderator to embed images. But you can cut and paste the image address, and readers can click on the URL to view it. — mod.]

    Just to clarify: it is ‘Guest Post’ articles I’m talking about, not posts in the comment section. Would it be better to submit these by email? And if so either

    1. As an RTF file with images embedded.
    OR
    2. In plain text, but with basic formatting as described on the WUWT Test page.
    http://wattsupwiththat.com/test-2/
    And with images as email attachments and their place in the body of the article marked by, for example, [IMAGE 1] … [IMAGE 2].

  53. D. J. Hawkins says:

    @richardscourtney
    @Political Junkie

    Indeed, it seems I may have jumped the judicial gun. My apologies. Political Junkie is quite right, it appears that the appeal will be to a higher court in Virginia. Here, I’m way not sure what the deal is with any appeal. It may be that the appeal has to be heard, or the higher court may deny the writ with no explanation; anyone out there practicing law in VA care to chime in?

    Richard, the methodology by which SCOTUS chooses its cases is almost entirely unknown. It may involve ouija boards for all anyone knows. The general theory is that they look for cases that speak to important constitutional issues and are “ripe” for action. There is nothing in the US constitution that requires them to take an appeal, although they do have original jurisdiction in cases involving ambassadors, public consuls and ministers, and between states. See Article III Section 2. for more information.

  54. GeoLurking says:

    Well, that lays a justifying foundation block in why taxpayer dollars should NEVER be given to a university.

    Defund the whole lot of them. With their tuition rates increasing at greater than inflation rates, they don’t need to be augmented by taxpayer funds… AT ALL.

  55. Snotrocket says:

    I dunno…I just get the feeling that the folk over at climatesciencewatch and desmog would certainly be the sorts of people 100% in support of the ‘Ecuadorian’, Julian Assange….

  56. Blade says:

    Jimmy Haigh [September 18, 2012 at 8:50 am] says:

    John@EF [September 18, 2012 at 8:10 am]

    John Brookes [September 18, 2012 at 8:15 am]

    Here come the faithfull.

    Yes, they sure are. Not to mention enablers.

    It is pretty stunning isn’t it? Do you think they even realize that by acting as Mann groupies they have placed themselves squarely against the concept of FOIFreedom Of Information ?

    Yeah, that helps to legitimize their case. NOT.

  57. richardscourtney says:

    D. J. Hawkins:

    re your answers to me at September 18, 2012 at 10:18 am

    Thankyou.

    Richard

  58. atheok says:

    I visited the Virginia’s court web sites to see if there have been any final rulings available for this case.
    http://www.courts.state.va.us/courts/circuit/Prince_William/home.html

    This case:Case Number: CL11003236-00

    Still has an open slot where the final ruling should be.

    What I went looking for is what the final determination was for ATI’s petition for immediate release of the records in question since UVA sent copies to the Manniacal one. As I recall, the ruling was deferred, but the situation is still there in that UVA shared (publicly) the FOI’d material with a private party outside UVA. This violation of FOI material is still pending, perhaps ATI will resubmit?

    I note that the law (http://lis.virginia.gov/cgi-bin/legp604.exe?000+cod+TOC02020000037000000000000) provides for:

    § 2.2-3713 D: & E:
    D. The petition shall allege with reasonable specificity the circumstances of the denial of the rights and privileges conferred by this chapter. A single instance of denial of the rights and privileges conferred by this chapter shall be sufficient to invoke the remedies granted herein. If the court finds the denial to be in violation of the provisions of this chapter, the petitioner shall be entitled to recover reasonable costs, including costs and reasonable fees for expert witnesses, and attorneys’ fees from the public body if the petitioner substantially prevails on the merits of the case, unless special circumstances would make an award unjust. In making this determination, a court may consider, among other things, the reliance of a public body on an opinion of the Attorney General or a decision of a court that substantially supports the public body’s position.

    E. In any action to enforce the provisions of this chapter, the public body shall bear the burden of proof to establish an exemption by a preponderance of the evidence. Any failure by a public body to follow the procedures established by this chapter shall be presumed to be a violation of this chapter.

    UVA MUST provide a preponderance of evidence for ‘proprietary’ exemption. Their ‘saying so’ is insufficient. (papragraph E.)

    ATI is entitled to seek reasonable recovery of court costs. (paragraph D.)

    I will love reading the final ruling, but for now I think UVA has been given plenty of rope to hang themselves. Let the obstructionists cheer the ruling. They may think it is an exoneration, from this perspective I think the defendent is expected to build their own gallows.

  59. Pat Frank says:

    David, submit your post as an MS Word file with your figures embedded in the text, where you want them. Anthony has an application that will convert your document to HTML.

  60. R.S.Brown says:

    Anthony,

    Here’s the Viginia code specifying “exemptions” to FOI requests:

    § 2.2-3705.4. Exclusions to application of chapter; educational records and certain records of educational institutions.

    The following records are excluded from the provisions of this chapter but may be disclosed by the custodian in his discretion, except where such disclosure is prohibited by law:

    1. Scholastic records containing information concerning identifiable individuals, except that such access shall not be denied to the person who is the subject thereof, or the parent or legal guardian of the student. However, no student shall have access to (i) financial records of a parent or guardian or (ii) records of instructional, supervisory, and administrative personnel and educational personnel ancillary thereto, that are in the sole possession of the maker thereof and that are not accessible or revealed to any other person except a substitute.

    The parent or legal guardian of a student may prohibit, by written request, the release of any individual information regarding that student until the student reaches the age of 18 years. For scholastic records of students under the age of 18 years, the right of access may be asserted only by his legal guardian or parent, including a noncustodial parent, unless such parent’s parental rights have been terminated or a court of competent jurisdiction has restricted or denied such access. For scholastic records of students who are emancipated or attending a state-supported institution of higher education, the right of access may be asserted by the student.

    Any person who is the subject of any scholastic record and who is 18 years of age or older may waive, in writing, the protections afforded by this subdivision. If the protections are so waived, the public body shall open such records for inspection and copying.

    2. Confidential letters and statements of recommendation placed in the records of educational agencies or institutions respecting (i) admission to any educational agency or institution, (ii) an application for employment, or (iii) receipt of an honor or honorary recognition.

    3. Records of the Brown v. Board of Education Scholarship Awards Committee relating to personally identifiable information, including scholarship applications, personal financial information, and confidential correspondence and letters of recommendation.

    4. Data, records or information of a proprietary nature produced or collected by or for faculty or staff of public institutions of higher education, other than the institutions’ financial or administrative records, in the conduct of or as a result of study or research on medical, scientific, technical or scholarly issues, whether sponsored by the institution alone or in conjunction with a governmental body or a private concern, where such data, records or information has not been publicly released, published, copyrighted or patented.

    The whole arguement now hinges on (#4) above, unless the University
    of Virginia appeals the court’s winnowing the issues to just this provision.

  61. Kurt in Switzerland says:

    @ chris y (September 18, 2012 at 5:50 am)
    Thx for the compliment; duly returned!
    Sorry to hear your posting was censored on DE; did your Tobis repost contain abusive language?

    Kurt in Switzerland

  62. atheok says:

    Deeper, darker and ever more obtuse. I’ve, er, wasted a good part of my day seeking a firm definition of the word ‘proprietary’ as defined under Virginia law.

    Surprisingly, or not, I did not locate a clear or even vague definition. There is, however, a reference to ‘Intellectual Property’ or ‘copyright’ in University of Virginia regulations. No UVA reference to proprietary exists alone.

    https://policy.itc.virginia.edu/policy/policydisplay?id='RES-001 defines the University’s policy on copyright. (It’s the University’s unless they say otherwise).

    And http://www.virginia.edu/vpr/adminproc.html defines the administrative procedures for implementing copyright. There is a vague concept that yearly reports identify copyrightable material.

    Further searching identified this very interesting source:
    http://www.wrc.noaa.gov/wrso/security_guide/propriet.htm

    Yup! NOAA has a page defining ‘proprietary’.

    “Proprietary Information
    & Trade Secrets…”

    NOAA has a subsection specifically defining ‘proprietary’ under FOIA exemption 4. (Federal I’m certain)

    “…Exemption 4 of the Freedom of Information Act exempts from mandatory disclosure information such as trade secrets and commercial or financial information obtained by the government from a company on a privileged or confidential basis that, if released, would result in competitive harm to the company, impair the government’s ability to obtain like information in the future, or protect the government’s interest in compliance with program effectiveness…”

    An interesting and perhaps extremely important sub-definition by NOAA is:

    The Economic Espionage Act of 1996 (18 USC 1831-39) defines trade secrets as all forms and types of financial, business, scientific, technical, economic or engineering information, including patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing if:

    The owner thereof has taken reasonable measures to keep such information secret, and;
    The information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by the public
    .

    There is no general definition for proprietary information in the U.S. legal code. The Federal Acquisition Regulation (48 CFR 27.402 Policy) does, however, provide a definition.

    “…contractors may have a legitimate proprietary interest (e.g., a property right or other valid economic interest) in data resulting from private investment. Protection of such data from unauthorized use and disclosure is necessary in order to prevent the compromise of such property right or economic interest, avoid jeopardizing the contractor’s commercial position, and preclude impairment of the Government’s ability to obtain access to or use of such data.

    Proprietary in most of these cases basically means a property important to one’s financial interest as in earns the owner money.

    Property as defined by the University of Virginia means that they sought/seek copyright status so that they might derive income to recompense their research expenses.

    Further obstruction acts by UVA in blocking release of emails because of ‘proprietary’ contents is a very dangerous game they play. As each and every identification of ‘proprietary’ means information (property) they (UVA) can derive income from. Whether by Federal legal definition (NOAA above) or by UVA’s own definition, they have a very small playground to play games on.

  63. Ally E. says:

    To John Brookes and any others who are pro-Mann.

    Mann would be a hero if he had data and shared it. If the world was arriving at a tipping point that needed worldwide cooperation, it is irresponsible to hold back. “For God’s sake, look at the data!” should be his cry. “Here!”

    He could clear up any discontent in a day or two. If the data was sound, it would shut the skeptics up, right? But no. The world is coming to a tipping point and he’s quibbling? “No, it’s mine!” is what he’s saying, like a child clinging to a teddybear.

    That’s like the person shouting “Fire!” in a theatre following it up by saying. “I can see where it is but I won’t tell you. I won’t! I won’t!”

    That’s childish and extreme and SHAME ON YOU for not even questioning such irresponsibility. You need to be jumping all over Mann on why he won’t just show us what he claims he’s got and clear up the confusion he thinks we’re suffering from. That goes for the rest of the data-huggers, too.

    FF’s sake, I’d respect warmists more if they grew some balls and started asking questions in the right places instead of questioning the questioners. Get on with it!

  64. DarrylB says:

    John Brookes –Thanks for using the term skeptic as opposed to denier and also alarmist should not be used.
    Does it not seen odd to you that scientists with different points of view are not sitting down at the same table? We have a situation in which whatever course of action we take or do not take may effect the entire population of the world and some people are concerned with their own stature and write about climate wars. There would be no war if one realizes that there is no enemy and simply invite the most skeptical (if qualified) to the table to determine what is known and to what degree of certainty. – or perhaps uncertainty. More is done in the least amount of time when everything is put on the table.
    When considering all of humanity, it should not be about Michael Mann or his ego, It should be about what he has done and what he (and the team) is (are) doing.
    I have never met Michael Mann and perhaps what I am about to say is therefore unfair, but from the viewpoint of one who has seen the horror of conflict, his actions seem to be that of a very small person, in fact a spoiled child, and not that of an esteemed scientist. He can do better.
    I would like him to start to prove me wrong.

  65. Policy Guy says:

    I agree with
    richardscourtney says:
    September 18, 2012 at 3:27 am

    I also agree with
    RB says:
    September 18, 2012 at 9:18 am

    This case is proceeding under an expected appeal. What the trial court did was remove the two most significant arguments to allow this information to remain private and allowed a narrow legal issue of a term’s definition to be the basis of a more final ruling. So he has cut out all of the BS and basically said there is only one legal issue that could legitimately be used to keep these communications secret. Along the way he has apparently peppered the transcripts with his negative views of Mann’s chosen mode of current involvement, that would not be lost in a future court’s review.

    BTW, what is the makeup of the appellate courts in VA?

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