Statement/Update on ATI v. UVa/Mann

From The American Tradition Institute – September 18th, 2012

Yesterday the American Tradition Institute (ATI) participated in more than four hours of oral argument in the Prince William County Circuit Court, in its effort to have faculty emails which were paid for by the taxpayer, in pursuit of taxpayer funded employment, declared public records, declared subject to the Virginia Freedom of Information Act (VFOIA) and released under that Act. The trial-court level judge ruled from the bench, siding with ATI on the first two questions, with theUniversityofVirginiaon the third, while rejecting the arguments of intervenor Michael Mann. ATI’s comments on this development are as follow.

ATI sought to provide the supposedly missing “context” to the Climategate scandal that, all are told, would explain away as non-problematic the revelations of “hide the decline”, “Mike’s Nature (Magazine) trick,” “recruiting” journalists to go after opponents, have journal editors dismissed and challengers suffer professionally.

The parties insisting that this missing context would clear Climategate up as being nothing at all opposed release of this missing context. Regardless, ATI has succeeded in obtaining hundreds of records from other state schools and government agencies, including several hundred of Mann’s emails while at UVa. The University of Arizona, employer of two lead players in Climategate including one of the co-authors of the infamous “Hockey Stick”, has also produced an index of email records a professor has refused to turn over, laying out a helpful chronology of the mysterious, supposedly exculpating but secret-at-all-costs “context.”

The Virginia court came down in agreement with ATI on the threshold questions: the university is indeed covered by VFOIA, as is the department at issue, as are those very records ATI seeks. The judge rejected all arguments by Intervenor Michael Mann whose intervention, the Court said from the bench, unnecessarily complicated matters, and without impact.

The Court then stated that, under VFOIA’s exemption 4 for “proprietary” information, so long as the discussions somehow reflect discussion about research among academics — even ‘hide the decline’ — they may be withheld or disposed of so long or however the university sees fit.

The court did not accept any “academic freedom” or First Amendment arguments. Its ruling was purely grounded in the meaning of the term ‘proprietary’ in the Virginia statute, and the reading of that provision the Court suggests means that public universities can hide from the taxpayer even what the Telegraph’s Christopher Booker called ‘the greatest scientific scandal of our generation’.

ATI is troubled by this implication, as should be all Virginia taxpayers and supporters of transparency in government, science and public policy.

The transcript should emerge soon. This alone delineates what the Court did and did not say, as there will be no written opinion (the Court made clear this was due to the flood of ancillary if ultimately irrelevant issues raised by outside parties). It should guide assertions about the ruling and its meaning. It will be useful for considering ATI’s options for appeal and other requests for emails among the located UVa records, but also other next steps because the Court’s language provided a roadmap going forward for, among other things:

  • it reflected judicial disdain for, and flat, serial and often stern cautions against the global warming industry’s preferred tactic of argumentum ad hominem;
  • it recognized that many local, state and federal policies have flowed from the work at the center of Climategate (and ATI’s request);
  • the Court seemed to acknowledge and sanction release of emails under, e.g., ATI’s requests seeking correspondence between academics and media, which recent requests have already revealed close coordination between activist academics and reporters, a practice reflected in Mann’s Climategate email;
  • the Court also seemed somewhat unnerved by what it learned about Mann’s behavior in pursuit of what the Court also quoted as “the cause”, also noting more than once that Mann made clear he knew his emails might get out.

However, the offense at, and the many, clearly deeply seated rebukes to Mann’s regrettable tactics, and rejection of the taxpayer-dependent establishments’ rhetorical hand-waving does not for now make that substantive conclusion — in Virginia, the school is free to do what it wishes, including about ‘tricks to hide the decline’, etc. — much sweeter for the Virginia taxpayer.

ATI will review the transcript and work with the University on the order to conclude the best course for appeal of a seemingly broad reading ofVirginia’s exemption 4, and how its specifics fit with the court’s acknowledgement that all exceptions must be narrowly interpreted.

Until that is concluded, and/or any other requests for records in the discovered Mann cache (for example, such emails as those to, from or mentioning the PR firm Fenton Communications, to reflect Mann’s relationship with the Washington operation coordinating the advocacy of a group of activist academics and other government employees, along with the Union of Concerned Scientists), the school cannot destroy the records.

And then, they can. Possibly in the interim voices inVirginia will address this now that the court has stated what the law of transparency and disclosure is in the Commonwealth.

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32 thoughts on “Statement/Update on ATI v. UVa/Mann

  1. I’m glad I logged in to read about this here! If I’d just read the court’s official rejection of the request I would have had no idea they thought Mann such a rapscallion!

    In this case a loss really is a win for us sceptics. Keep it coming!

  2. I’m an attorney that has worked briefly with Federal FOIA while in the government and state FOIA (not VA) from the private company side. In fact I just filed an objection today to potential disclosure of a private company’s proprietary information. Perhaps VA law is different, but the “proprietary” exemption where I practice is to protect private companies’ proprietary information – not information developed with taxpayer funds by state employees at a state institution. If the exemption is as the judge ruled, what cannot be claimed under this exemption? Seems to me the judge’s determination guts VFOIA. I would appeal.

  3. Seems to me that the term “proprietary” need to be explored. Inasmuch as most of the efforts of the team end up being disclosed to/used by the IPCC panel, the concept of “property” at least in the sense of intellectual property needs to be fleshed out.

  4. Odd decision. This might influence future legislation to better define the VFOIA.

    At least we can add a new entity that had told Mann he’s off base. Now if we can only get Mann to go back to the dugout….

  5. This is much less a defeat for ATI then the initial announcement of the “decision” implied. I see broad avenues open for appeal here. And the transcript revealing the apparent judicial skepticism will make for interesting lines of negative publicity for the defendants.

  6. This is a very different interpretation from the one Mann put out. It will be interesting to see the transcript. Mann knows that the enviro press will run with his words, and then will fail to correct the record later on when his words are shown to be mendacious.

    One other comment – ATI desperately needs a copywriter. The stuff they put out is always poorly written and often incomprehensible.

  7. I’m guessing the decision is more political than legal. Had he ruled otherwise, there is still enough time for the FOIA material to be released and publically scrutinized, prior to the election. Its release may in fact inflence the election in some quarters. Its highly probably, given UVA’s proximity to Washington, that there is a fair amount of beltway traffic back and forth. Leaving the decision open to appeal, while still burying the documents pending appeal, pretty much ensures nothing will surface until well after the election. Is the judge a registered Democrat? Annoying minds want to know….

  8. Simple solution. Cut all taxpayer funding of ALL universities. They should be forced to operate under the constraints of their already skyrocketing tuition rates.

    If my money (forcibly extracted) goes into funding a company, I damned sure should be entitled to whatever information that goes into what I was forced to buy.

  9. This is one more indication of a general observation I have made over a long career: those persons who succeed in a vertiginous rise to high places do so based on their Teflon-like ability to slide away from any calumnious accusations and/or evidence. I have known many of this type in private paractice, in academia, and in government. They are always present to receive the glory and adulation but never there when the guillotine falls.

  10. Odd how some things are leaked and some are absolutely secret.
    If it has to do with national security, it is all over the NYT, no problem.
    School transcripts that should be public but are not, and sealed divorce records that should not be leaked but are, and now tax payer funded e-mails for relevant discussions are ultra top secret.
    Judges are nothing if not capricious and political hacks in far too many cases.
    Now is the time for the third tranche of climate gate, since it is clear that the AGW fanatics have no intention of being open or honest.

  11. Let’s face it, what the court really means is proprietary protection for warmists, if it was a skeptic trying to hide their emails they would have been public property faster than you can say ‘hide the decline’.

  12. ” The judge rejected all arguments by Intervenor Michael Mann whose intervention, the Court said from the bench, unnecessarily complicated matters, and without impact.”

    SMACK !!!!

  13. If the emails are proprietary, then Mann & his colleagues should be subject to financial conflict of interest rules and should have to make financial disclosures. Also, Mann & his fellow warmists have to stop claiming that they are acting in the public interest when advocating in favor of CO2 reductions.

    JD

  14. I think that the B brothers, Pat and Jim have it right. Pursue the proprietary/intellectual property aspect. That would hinge powerfully on copyright.

  15. Sounds like a good decision. Taxpayers paid for the data (the work product) so it should be fully and openly public without any extra payment for access. But discussions about ongoing research should be allowed to stay private.

  16. Is this court’s decision just giving a little bit of encouragement to both sides, so there will be one or more appeals, so as to ensure the continuous employment of the legal professionals?

  17. “Proprietary” is the escape hatch for this legislation. The law can be passed so that citizens can have confidence in their government. The law can be avoided so that public officials and employees can have confidence in their freedom to act in any way they wish. They win. We lose.

  18. If one of the researchers wrote an email to one of their critics in defense of their work, can the recipient of that email publish it without the permission of the sender? My current understanding is that they cannot.

    :?
    MJM

  19. Can a criminal conspiracy be considered proprietary if it also happens to however infinitesimally “reflect discussion about research among academics”? As determined by whom? Protect the Academic Priesthood. Pay no attention to the circling buzzards and the stench of carrion, move along. What is needed is not a FOIA request but a subpoena.

    Bring on CG3!

  20. Anthony,

    Here’s the Virginia Code with exemption #4 for “proprietary” material:

    § 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:
    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. (emphasis added)

    The Virginia Code provides 25 ways for information to be classified as being
    “proprietary” or “proprietary in nature” and exempt from FOI requests.

    See:
    § 2.2-3705.6. Exclusions to application of chapter; proprietary records and trade secrets at:

    http://198.246.135.1/cgi-bin/legp504.exe?000+cod+2.2-3705.6

  21. The legal stuff aside, if you’re a Mann Fan, ask yourself, “If his research in these files is about science, why is he hiding it?”

  22. I think JD Ohio and Gunga Din have made very telling points. Mann obviously has something significant to hide.
    I think the Judge has almost deliberately left it open for appeal.

  23. I hope ATI let’s us know when the court transcript is publically available. There probably will be good material in the transcript wrt Mann’s standing in future legal matters.

    John

  24. Seems to me this judge is reacting like a lower court judge should. He knows this will be appealed. The manuscript informs future courts of his attitude and personal conclusions, yet the holding on a technical issue of the meaning of a single word opens the door for the higher judiciary to consider focused arguments on the legal issue and ultimately make the final decision based upon a neutral term in climate parlance that legitimatizes the judiciaries role in reaching a final decision.

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