Decision expected tomorrow in Mann UVa FOIA case

At the blog “Open Virginia Law” they are discussing the Mann case and potential impacts, as a new session results will be published from the Supreme Court of Virginia, and it’s likely the Mann/UVa case is one of them.

Insiders tell me that even if Mann/UVa loses, they’ll likely take a on a new position and file a claim of First Amendment right to academic freedom prohibiting release of the ClimateGate and HockeyStick emails, and surely will again encourage Mann to join, each claiming the right rests with them. With Mann, it’s all about delaying the inevitable, unless of course somebody like the hero of Climategate “FOIA” decides to take matters into their own hands and stop this abuse of the legal system and FOIA law by making an email dump. I don’t underestimate that possibility.

Here’s the situation:

Climate change’s looming impact on Virginia’s FOIA

A FOIA case is pending before the Supreme Court of Virginia.  Given the Court’s recent history (for example, on cameras in the courtroom and FOIA and the SCC), that alone is cause for concern.  This post discusses the case, what’s at issue, and how it matters for open government in Virginia.

Later this week, probably on Thursday, April 17th, the Supreme Court of Virginia will release its next batch of opinions.  The Court hears cases in sessions, which happen about every 6-8 weeks.  By tradition, the Court releases all published opinions in cases argued at the previous session on the last day of the next session.  The Court isn’t required to follow that schedule; it can take as long as it wants.  But month in and month out, the Court follows its traditional schedule in all manner of cases, complicated and simple, controversial and not.

It is cause for raised eyebrows therefore that the Court missed its usual timeframe on one case (record no. 130934) argued in January: the entity formerly known as the American Tradition Institute (ATI) and Virginia Delegate (and Congressional candidate) Bob Marshall v. the University of Virginia and former UVA professor Michael Mann.  This is pure speculation, but there may be multiple opinions or close questions where the Court wanted to write carefully.  For our purposes, the key points are that a FOIA case has reached Virginia’s top court, with significant implications for all Virginia citizens.

Case background

Some may remember the Supreme Court’s 2012 opinion concluding that then-Attorney General Ken Cuccinelli could not obtain Mann’s e-mails and records as part of an AG investigation of whether Mann’s climate research and publications constituted fraud.  The ATI and Marshall, also in the climate change skeptic camp, have been trying to obtain Mann’s e-mails and records through the Virginia Freedom of Information Act (FOIA).  UVA provided some documents but withheld thousands of others.  ATI also has ponied up $4,000 for UVA’s review of the records so far.  ATI & Marshall want the withheld records disclosed and their money back.

The trial court ruled for UVA, concluding both that the records were exempt and that UVA could charge for its FOIA exemption review.

Read the entire story here: http://www.openvirginialaw.com/2014/04/climate-change-virginia-foia/

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43 Responses to Decision expected tomorrow in Mann UVa FOIA case

  1. From personal experience…If you have to ask the answer is always no.

  2. Cold in Wisconsin says:

    I wonder if Edward Snowden or any of his Russian hacker pals would like to take this on. There may be a Pulitzer Prize in it for someone.

  3. John Whitman says:

    What the VA Supreme Court decision will be is not in my knowledge frame.

    John

  4. Duster says:

    How many of the VSC judges are UVA graduates?

  5. kim says:

    Speculating wildly, there will be no release this week. Judges hate to be made fools of, and discovery in the Mann/Steyn case may soon expose the Supreme Court judges to the possibility. If there is release, it will favor the FOI actors, because the Judges will have seen enough tomfoolery already.

    The amicus briefs highlight a class struggle, hoi polloi vs the elite.
    ============

  6. Bruce Cobb says:

    “Academic freedom” would be quite a stretch, even for them.

  7. The suggested ploy for Mann et al would continue the policy of outspending the opposition into submission – lets face it, it’s all he’s got.

  8. How can a First Amendment claim of “academic freedom” justify concealing the “academic” methodology? The First Amendment is about freedom of speech/press/religion. Compelling someone whose research is funded by government money to reveal all of that research in no way abridges anyone’s freedom of speech. It just forces the process to be open.

    And if the process isn’t open, it isn’t “science”.

  9. PeteJ says:

    What’s this argument that the FOI does not apply to constitutionally authorized entities but only to legislatively authorized “public body” entities??? Does the UVA have a charter written into the VA constitution like in the SCC case which would allow it to duck the law?

  10. PeteJ says:

    I forgot, in Cartright the SCVA found that provisions of the VFOIA are to be `liberally construed’ so, I guess we have to get inside the mind of a liberal to figure out how the case is to be decided.

  11. Darren Potter says:

    Said by The Monster: “… if the process isn’t open, it isn’t ‘science’.”

    Which is what we all should be screaming anytime a Global Warming Alarmist tries to make any claim of Settled Science or Anthropological Global Warming or CO2 being harmful.

  12. knr says:

    I know it sounds odd , but a number of left leaning people will be really worried Mann wins , for they have worked out that if he is allowed to hide his e-mails on these grounds than many others will be able to. And those may be people the left/green gang would really like to see ‘exposed ‘

    Either way its not the end of the story by a long way , and the issues remains if the science is settled and the need for action so urgent , why all the efforts to ‘hide’ the very information which could ‘only support the cause ‘ in the first place and so speed up any action?

  13. Darren Potter says:

    Said by grumpyoldmanuk: “… ploy for Mann et al would continue the policy of outspending the opposition into submission …”

    That would fail, if more people called Mann’s bluff.

  14. unless of course somebody like the hero of Climategate “FOIA” decides to take matters into their own hands and stop this abuse of the legal system and FOIA law by making an email dump. I don’t underestimate that possibility.

    all.7z?

  15. temp says:

    kim says:
    April 16, 2014 at 9:44 am

    “Speculating wildly, there will be no release this week. Judges hate to be made fools of, and discovery in the Mann/Steyn case may soon expose the Supreme Court judges to the possibility. If there is release, it will favor the FOI actors, because the Judges will have seen enough tomfoolery already.”

    I must say I agree with this somewhat. Now that steyn is counter suing and is showing all the signs of being eager to fight it out… the court is not happy. Some things can be covered up… however if they rule in a normal haphazed pro-lefitist fashion as they tend to do they could suffer badly later on. I think they understand that the Uni is hiding docs because they need to, not because they want too. Thus in turn they understand that the release of these docs will hurt their political beliefs. They want to support their politics but now need to find a way to thread the very tiny needle hole of the law to do that. They maybe forced by steyn’s actions to rule in favor of ATI.

    knr says:
    April 16, 2014 at 10:22 am

    “I know it sounds odd , but a number of left leaning people will be really worried Mann wins ”

    I wouldn’t be so sure about that. Their has always been for at least the last 10+ years a huge double standard when its comes to the FOIA. Some of that is caused by fear, some caused by politics but it has existed and is well known.

  16. talldave2 says:

    a number of left leaning people will be really worried Mann wins

    The Glenn Greenwald crowd, yes. But few others. As the left becomes more polarized and increasingly isolates itself from conservative opinions, they are losing all perspective. Few of them see anything wrong with the IRS selectively attacking conservatives, or they prefer to believe it didn’t happen (and they have plenty of sources that will tell them it didn’t).

    They no longer process reality very well. They are now the party that honestly believes “If you like your doctor, you can keep your doctor. Period.” was said in good faith, or is even true.

    Fortunately independents are not liking what they see. Of course, Romney won independents…

  17. JP says:

    “Insiders tell me that even if Mann/UVa loses, they’ll likely take a on a new position and file a claim of First Amendment right to academic freedom prohibiting release of the ClimateGate and HockeyStick emails,…”

    This is stupid. There is no First Amendment right to academic freedom. This is especially true concerning the work of public employees (which Mann was while at the University of Virginia). Furthermore, Mann et als pride themselves and their work on having a direct impact of public policy – i.e. the crafting of laws and regulations. Oversight and the taxpayers and voters right to know what “science” is behind these laws trumps any kind of fantasy that these Elites can gin up.

    There is a civil case pending in court, and Mann’s work will be called into question in a court of law. He, like most Progressives have a belief that they are above the law.

  18. Gary Pearse says:

    “..making an email dump. I don’t underestimate that possibility.”

    If the resistance is this strong, I don’t underestimate the possibility that there will be destruction of tier one emails, and at least a few small embarrassing releases would be made to look good. I’m sure after Dr. Phil of UEA advised deleting emails that a lot went into the ether. We know of one former NOAA guy that followed this instruction passed on thru Mann and Mann didn’t volunteer what he did.

  19. Alan Robertson says:

    knr says:
    April 16, 2014 at 10:22 am

    I know it sounds odd , but a number of left leaning people will be really worried Mann wins , for they have worked out that if he is allowed to hide his e-mails on these grounds than many others will be able to. And those may be people the left/green gang would really like to see ‘exposed ‘

    Either way its not the end of the story by a long way , and the issues remains if the science is settled and the need for action so urgent , why all the efforts to ‘hide’ the very information which could ‘only support the cause ‘ in the first place and so speed up any action?
    ________________________
    Pack the courts with proselytes and all decisions become favorable to your cause.

  20. philjourdan says:

    @Duster – 3 of the 7 including the Chief Justice.

  21. rogerknights says:

    unless of course somebody like the hero of Climategate “FOIA” decides to take matters into their own hands and stop this abuse of the legal system and FOIA law by making an email dump. I don’t underestimate that possibility.

    Here’s how I interpret that: Cuccinelli wouldn’t have gone out on a limb with his suit if he hadn’t had strong suspicions of wrongdoing by Mann. What could have caused those suspicions? One possibility is that he was shown, in confidence, a potential whistleblower’s FOIA-like gleanings of the UVA emails.

    OTOH, Mann doesn’t seem like he’s worried about a sword dangling over his head. (Could it be that he thinks that anything he does just CAN’T be wrong?)

  22. JP says:

    “If the resistance is this strong, I don’t underestimate the possibility that there will be destruction of tier one emails, and at least a few small embarrassing releases would be made to look good. I’m sure after Dr. Phil of UEA advised deleting emails that a lot went into the ether.”

    @Gary,
    In a civil case, if emails were deleted, and standing federal regulations mandate the continual archival of emails, Mann et als could be opening themselves up to much worse than embarrassment. I don’t know how modern UVa’s email server and archival infrastructure is, but for most corporations it is virtually impossible to “delete” emails. It has to be if they wish to avoid breaking federal laws.

  23. kim says:

    Heh, rk, Lewandowsky’s got his back.
    ======

  24. Phil. says:

    Gary Pearse says:
    April 16, 2014 at 12:46 pm
    “..making an email dump. I don’t underestimate that possibility.”

    If the resistance is this strong, I don’t underestimate the possibility that there will be destruction of tier one emails, and at least a few small embarrassing releases would be made to look good. I’m sure after Dr. Phil of UEA advised deleting emails that a lot went into the ether. We know of one former NOAA guy that followed this instruction passed on thru Mann and Mann didn’t volunteer what he did.

    Mann wasn’t at UVa at the time of that email I think he was already at Penn State.

  25. John A says:

    I doubt that there is an FOIA mole in UVa, but I did ask Chris Horner about the e-mails that had been released under this drawn-out tedious discovery whether Mann would be concerned about the contents being widely known – and he thought they certainly would.

    Its a nonsense to suggest that it somehow limits academic’s freedom of expression – unless they regard what they write to each other using their employer’s email system as a form of artistic or political expression.

  26. RalphB says:

    Duster asks: How many of the VSC judges are UVA graduates?

    The seven Active Justices:
    1.Cynthia Dinah Kinser — Law degree from the University of Virginia.
    2. Donald Wayne Lemons — Received both his undergraduate and law degrees from the University of Virginia.
    3. Samuel Bernard Goodwyn — J.D. from the University of Virginia’s School of Law.
    4. LeRoy Francis Millette, Jr. — Undergraduate degree from College of William and Mary and law degree from the Marshall-Wythe School of Law at William and Mary (public research university located in Williamsburg, Virginia).
    5. William Cleveland “Bill” Mims — College of William and Mary, George Washington University School of Law (DC), Georgetown University Law Center (DC).
    6. Elizabeth Ann McClanahan — Undergraduate degree from the College of William and Mary. Law degree from the University of Dayton (1984). Chaired the (VA) State Council of Higher Education and served as vice rector of the College of William and Mary.
    7. Cleo Elaine Powell — Undergraduate degree from the University of Virginia. Juris doctor from the University of Virginia School of Law.

    Sorry, not one from the George Mason University (VA) School of Law!

    Information gathered via links beginning at:
    https://en.wikipedia.org/wiki/List_of_Justices_of_the_Supreme_Court_of_Virginia

  27. DougbyMany says:

    I was browsing the court documents in the case and found Michael Mann’s Affidavit dated July 24, 2012.

    http://eelegal.org/wp-content/uploads/2013/09/Part-1-2012-07-24-Exhibit-1-to-Mann-Affidavit.pdf
    Check out Page 1

    “Co-awarded (with other IPCC report authors) the 2007 Nobel Peace Prize.”

    I guess sworn statements aren’t taken too seriously these days. What ever happened to “under penalty of perjury?”

  28. John Whitman says:

    “[. . .] unless of course somebody like the hero of Climategate “FOIA” decides to take matters into their own hands and stop this abuse of the legal system and FOIA law by making an email dump. I don’t underestimate that possibility.”

    John Kenner, the skeptical hero of the late Michael Crichton’s novel ‘State of Fear’, is fictional. But.

    Are his rational skeptical attributes based on, in part, real alumni (or alumnae) of UVa? That info would be interesting . . .

    John

  29. u.k.(us) says:

    I once made the mistake of answering a jury call in Cook County, Illinois.
    Got picked for a murder trial.
    The defendant showed up for the first two days, when they picked the jurors.
    Then the defendant drove himself into a brick wall, thus delaying his date with destiny.
    They released us after 3 1/2 days.
    The judge admitted that the defendant had been avoiding trial for a long time.
    The judge just wanted to clear her backlog.
    Smartest person that I’ve ever been in the presence of, that judge.

  30. lee says:

    Perhaps Mann’s funding was from the Koch Bros. That would be embarrassing.

  31. mpaul says:

    I can’t see how Mann would have standing to take this to the US Supreme Court. Mann assigned the rights to all of his email utterances to UVa. The only issue before the Va Supreme Court is whether the emails are exempt from FOIA under one of the existing exemptions in the law. There is no issue as to who owns them.

    If the court were to allow the idea that emails produced in connection with a person’s employment are private expression protected under the 1st amendment, then FOIA as a concept would be dead. Every tinpot bureaucrat subjected to a FOIA request would claim protection.

  32. bushbunny says:

    I thought the university of Virginia were suing him because they want their grant back? Oh the result will be interesting, as it may affect Mark’s case too?

  33. Proud Skeptic says:

    Maybe I’m naïve but isn’t public money funding Mann’s research? IMHO, when the public is paying the freight then EVERYTHING is public. if you want privacy, then use private money…preferably your own.

  34. Mark Luhman says:

    Well in this upside down world people keep stating they have a right to privacy in a public place. I always thought private meant private and public meant public, but somehow I am mistake, foolish me to think words might mean something.

  35. kim says:

    We’ll see if the MSM’s heart was in their amicus, whether they are in search of sunshine or darkness.
    ========

  36. dp says:

    The FOIA law in Virginia is a law with no teeth and no bite.
    http://www.courts.state.va.us/opinions/opnscvwp/1130934.pdf

  37. philjourdan says:

    @rogerknights

    Mann doesn’t seem like he’s worried about a sword dangling over his head. (Could it be that he thinks that anything he does just CAN’T be wrong?)

    I do not recall the blog, but a contributor who went to school with Mann provided great insight (if indeed he was being truthful). His summation was that Mann does not think he can be wrong.

  38. philjourdan says:

    @John A

    I doubt that there is an FOIA mole in UVa,

    I am not so sure. I know there are a lot of “strange” folks there in IT. Like a guy who keeps a solarium for his turtles and terrapins? It takes up half his house.

    And yes, I have worked with some of them before.

  39. philjourdan says:

    @RalphB – thanks for the correction. I missed Samuel Goodwyn’s post grad.

    @Duster – never mind.

  40. Duster says:

    philjourdan says:
    April 16, 2014 at 1:25 pm

    @Duster – 3 of the 7 including the Chief Justice.

    Thanks. Not overwhelming but…

  41. Duster says:

    RalphB says:
    April 16, 2014 at 3:04 pm

    Duster asks: How many of the VSC judges are UVA graduates?

    The seven Active Justices:
    1.Cynthia Dinah Kinser — Law degree from the University of Virginia.
    2. Donald Wayne Lemons — Received both his undergraduate and law degrees from the University of Virginia.
    3. Samuel Bernard Goodwyn — J.D. from the University of Virginia’s School of Law.

    7. Cleo Elaine Powell — Undergraduate degree from the University of Virginia. Juris doctor from the University of Virginia School of Law.

    Sorry, not one from the George Mason University (VA) School of Law!

    I count four UVA graduates in your reply, which was all I asked about, all of whom are listing one or more law degrees from UVA as well. What’s this about George Mason U?

  42. RalphB says:

    Duster writes:
    “I count four UVA graduates in your reply, which was all I asked about, all of whom are listing one or more law degrees from UVA as well.”

    I concur in your count. I provided more information than you requested since I like to provide the raw data, so to speak, and let people come to their own conclusions. I thought the non-UVA institutions were interesting too, in that they show varying degree of consanguinity with UVA and alert us to possible collegial sympathy votes, the effects of which relate to the apparent purpose of your question.

    Also: ” What’s this about George Mason U?”

    A justice hailing from George Mason might have been less in awe of the (legal/’scientific’) consensus view. Unlike the universities represented in the Supreme Court of Virgina, George Mason is a Virginia university which actually grants a degree of respect to non-consensus viewpoints on climate change and other intellectual issues as well. This upsets the usual suspects on the left:

    http://www.sourcewatch.org/index.php/George_Mason_University#Related_to_global_warming

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