Decision in the Mann/UVa case, a blow to open science

Supreme Court of VA sides with University, secrecy, and Mann.  The previously claimed destruction of Mann emails now to begin.

In this appeal, we consider whether the Circuit Court of Prince William County (“trial court”) erred by denying a request for disclosure of certain documents under the Virginia Freedom of Information Act (“VFOIA”), Code § 2.2-3700 et seq., and whether a public body may impose charges for the cost of reviewing documents under the statutory exclusions.1

130934 American Tradition Inst. v. Rector and Visitors 04/17/2014

The circuit court was correct in denying a request for disclosure of certain documents under the Virginia Freedom of Information Act. The purpose of the higher education research exemption under Code § 2.2-3705.4(4) for “information of a proprietary nature” is to avoid competitive harm, not limited to financial matters. The definition of “proprietary” in prior case law, that it is “a right customarily associated with ownership, title, and possession, an interest or a right of one who exercises dominion over a thing or property, of one who manages and controls,” is consistent with that goal and the circuit court did not err in applying that definition. Viewing the facts in the light most favorable to the university that prevailed below, it produced sufficient evidence to meet each of the higher education research exemption’s seven requirements. Also, in the context of the Code § 2.2-3704(F) provision allowing a public entity to make reasonable charges for its actual cost incurred in accessing, duplicating, supplying or searching for requested records, “searching” includes inquiry into whether a disputed document can be released under federal or state law, and this statute permits a public body to charge a reasonable fee for exclusion review. The circuit court’s judgment excluding disputed documents and approving such cost recovery is affirmed, and final judgment is entered in favor of the university.

See the document here: http://www.courts.state.va.us/opinions/opnscvwp/1130934.pdf

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106 Responses to Decision in the Mann/UVa case, a blow to open science

  1. Trey says:

    Now.. vote to END support for “higher ed” that does not disclose
    everything.

  2. DayHay says:

    Should still be able to get the emails thru the Steyn case.

  3. tim maguire says:

    Publicly funded educational research is specifically exempted to protect financial interests? Wouldn’t the right of possession be held by the people of Virginia?

    What a strange outcome.

  4. Brad says:

    Sounds rigged, have to wonder how many judges, or family members, or political contributors, are alumni?

    Something stinks…. And Lew-paper won’t make the smell go away.

  5. Tom O says:

    Really, that is an interesting decision. It implies that the university and the staff have ownership of whatever their research develops. I wonder where the breakdown is between how much is “owned” by the univiersity and how much by the staff? I have yet to see it possible for a government worker, as an example – which, oddly enough, is basically what the universtiy staff is since it is paid by taxes – be able to patent or “own” intellectual property developed at the government facility. I don’t see how this bird flies. Next up, since we are talking federal funding here as well, the ruling of the Supreme Court, should it be taken to them and accepted by them. If they agree, then half of all the things that are discovered under federal programs, at the least, belong to the staff. My, just think of all the rich people that this ruling can make after the suits are filed.

  6. Merrick says:

    Tim,

    The “people” is no longer actual people, it’s the liberal juggernaut. Didn’t you know that? Today the “people’s” Atorney General is arguing AGAINST the actual peole of Virginia to uphold the overturning of the definition of marriage that that actual people of Virginia voted into the state Constitution.

  7. Reblogged this on Power To The People and commented:
    What are Mann and the University hiding and why is it trumping the public’s right to know??? The plot thickens.

  8. Merrick says:

    Brad,

    I have no idea how many of the judges on the appellate court are UVa alumna, but one famous UVa Law (after Harvard pre-Law) thinks that the US Constituion is 400 years old: http://www.washingtontimes.com/news/2014/mar/13/sheila-jackson-lee-claims-constitution-400-years-o/

  9. Rob Dawg says:

    If the emails are destroyed Mark Steyn will win his damages. If the emails are not destroyed we will see them in discovery. This is not going away, just delayed.

  10. David in Michigan says:

    After reading the decision by the court, I agree that their interpretation is correct. It’s disappointing, yes, but reasonable and coherent. I also note the caveat by one of the judges at the end of the decision write up that there might be unintended consequences of applying the definition of the word “proprietary” to other sections. So it goes….

  11. Paul Coppin says:

    On a quick read through and without looking at the referenced cases, I note two things: ATI probably argued the case badly, and the ruling is a cautious ruling. Th nut of the last part is in the court’s caution over the meaning of “proprietary”, the ambiguous intent of its meaning as derived from the Va legislature in statute (which the court has asked the legislature to clarify), and the consequence, that because of this ambiguity, the court was obliged to follow the narrower definition established by case law in respect of the specific Codes in the VAFOIA. The competitive issue of public schools vs private schools is an interesting wrinkle. The decision is not a failure of the court to uphold access to publicly funded information, it’s a failure of the state legislature to properly construct statutes with consistent common use terminology.

  12. jeff 5778 says:

    “I have yet to see it possible for a government worker, as an example – which, oddly enough, is basically what the universtiy staff is since it is paid by taxes – be able to patent or “own” intellectual property developed at the government facility.”

    This is common. How better to get beneficial research and development?

  13. Are you surprised? What else should one expect when paddling up stream against such a powerful official current. The system is rigged. Like a judge told me years ago, our legal system is about technicalities and procedure, not justice. The draw bridge is up. Standby for decisive, planet saving executive action.

  14. TomRude says:

    Thank you Paul Coppin for a very informative reading.

  15. DougbyMany says:

    I feel like I am going to vomit.
    It feels like this whole country is on crazy pills.

    Please never donate a penny to this institution again. UVA has moved the goal post so far from their original claims about this situation.

    Here is what they said about climate change FOIA and CID requests years ago to pacify their donors.
    http://www.virginia.edu/foia/climatechange/

    Here is how they describe their commonly used exemptions.
    http://www.virginia.edu/foia/exemptions.html

  16. Dave says:

    “information of a proprietary nature”

    What in God’s name is proprietary about climate research? I thought Mann was trying to enlighten us plebeians as to the dangers of global warming.

  17. Dr C says:

    IANAL, so here’s the question now: Mann is suing Steyn in the Washington DC district. Steyn has sought discovery of Mann’s emails (including those from UVa). Mann is trying to dodge this (even though Steyn has apparently completely complied with Mann’s discovery requests already).

    My question is about jurisdiction. Can the District court in DC order UVa to cease on its stated intent to destroy these emails? Also, is this the kind of decision that can be appealed to SCOTUS, or is this strictly a VA only issue? (It seems that this decision was based on VA FOIA laws, not Federal laws, or am I mistaken?)

    Lawyers only, please.

  18. Greg says:

    Look at the new Governor and AG in VA. All you need to know.

  19. John Whitman says:

    The Supreme Court of VA decided,

    “[. . .] The circuit court’s judgment excluding disputed documents and approving such cost recovery is affirmed, and final judgment is entered in favor of the university.”

    – – – – – – – – – – – –

    ATI has recourse now to raise the bar to the US Supreme Court. Since we are talking virtually all of Mann’s research funding at UVa was ultimately derived from the US Federal Government, it would be appropriate for SCOTUS review.

    NOTE: If the UVa advocates principles of freedom, this ruling is not in its ‘favor’.

    John

  20. tarran says:

    It’s not a blow to open science. It is however a blow to taxpayers who are forced to pony up money to pay for government funded science.

    Science is a process for learning about the universe. If someone keeps their data or their work product secret, it doesn’t really do much other than to slow down science since anybody can conduct an experiment; anybody can make observations. All that a secretive person does is make it harder for others to replicate his results. And in science, when people can’t replicate your results, it tends to make it harder to gain influence.

    However, people doing scientific research or theorizing need resources to use in their endeavors. Of the variety of methods open to them to gather these resources, patronage is the most popular; a patron provides money so that the research can occur.

    A patron, risking his own money, has great incentive to ensure their money is not wasted. In this case, the patrons (government officials) are not spending their own money but forcing other people to provide it. And because they face no loss for wasting the money, the patrons really have no incentive to ensure that the research they command is done with competence and in a valid way. The tax payers will have a more difficult time forming a good judgement of how well the government officials controlling the purse strings are doing, because the taxpayers have been denied a very useful tool to inspect the way their money is being spent.

  21. Supreme Court of VA sides with University, secrecy, and Mann.
    ————
    Where are we going – and why are we in this handbasket?

  22. Steve C says:

    It’s just Establishment Supports Establishment, precisely what you’d expect. Not the Man Bites Dog that many seemed to be hoping for, but it’s as well to be reminded occasionally that faith in any authority is usually misplaced.

  23. Larry Geary says:

    Who would have imagined politicians in robes supporting politicians in lab coats?

  24. gator69 says:

    So the government can monitor all my email and phone calls, as well as all communication of every privately owned company, but WE THE PEOPLE are not permitted to see the work that WE paid for.

    Makes perfect sense.

  25. Eric Worrall says:

    Climategate Email 1106338806.txt

    http://eric.worrall.name/Climategate/FOIA/1106338806.txt

    I wouldn’t worry about the code. If FOIA does ever get used by anyone, there is also IPR to consider as well. Data is covered by all the agreements we sign with people, so I will be hiding behind them. I’ll be passing any requests onto the person at UEA who has been given a post to deal with them. … I got a brochure on the FOI Act from UEA. Does this mean that, if someone asks for a computer program we have to give it out?? Can you check this for me (and Sarah)

  26. Jim Brock says:

    As I read the opinion, FOIA will never apply to Universities. Anyone disagree? Essentially says Universities are not government agencies.

  27. Paul Pierett says:

    People who live in belief of Man-Made Global Warming live in Darkest much described by Plato. Mann won but as in Photography, old Photography, he has more Darkroom time. He lives in a world now of Red Light. Soon he won’t be able to return to the light without much and sincere apology.

    In the long run, the Virginia Commonwealth Higher Education joins Pennsylvania and England in protecting their institutions. Also, in the long run we will have about three or more ignorant generations deep in socialist-police state of mind that true science will be hid through a New Dark Age much as at the end of De Vinci time which lasted 50 generations.

    They voted it into power. They have their just rewards.

    As for us, the present Solar sunspot minimum will be an Equalizer.

    Most Sincerely,

    Paul Pierett

  28. wws says:

    “Like a judge told me years ago, our legal system is about technicalities and procedure, not justice.”

    They start teaching you that on Day 1 of law school. Basically, that’s what “thinking like a lawyer” is all about. (and yes, I am speaking from experience)

  29. Rob says:

    I just posted this on Bishop Hill, but it should more probably be posted here:

    This is potentially very far-reaching in equating “information of a proprietary nature” with anything which could lead to “competitive harm”. Universities in the US are in a competitive market place for students thus anything relating to falling standards or – dare I say it – allegations of sexual abuse by sports coaches can now be kept from FOI as this would lead to competitive harm as it would deter students from applying.

    Absolutely shocking and completely against the intent of the legislation.

    Universities have the right and responsibility to protect their inventions (under Bayh-Dole) if there were any federal funds involved in the research. This is the basis, as far as I can tell, for the exemption of proprietary information from FOI. However, protecting inventions only requires confidentiality to the point where they are made public through patent applications and the whole purpose of the legislation was to encourage disclosure through such applications, while retaining licensing rights to encourage investment in developing products from the invention. At no stage is competitive harm an issue for publicly funded bodies in relation to invention or invention disclosure and the ultimate purpose of University research is full public disclosure – with the only exemption being temporary confidentiality until protection has been sought (patent application).

  30. rbissett777 says:

    Return to base. The tide of history is against you! Imagine how elated Mann and the Team are today. It is very doubtful we can sue our way out of this or vote our way out. We need another Climategate email dump about now. Where are all the hackers?

  31. jauntycyclist says:

    if the emails supported their case would they be destroying the evidence in them?

  32. wws says:

    I should have added, as all smart lawyers have figured out ages ago, if you want to control the outcome, you control the procedure.

    And don’t despair, there are ways of changing this – but only through electing a legislature and a governor that believes in the same things you do, and which will act on them. (For instance, removing the proprietary exemption from public universities, insofar as it relates to the FOIA act) It always all comes down to politics in the end – when Courts decide everything, and governmental procedure controls every outcome, then everything is political, by default.

    or to put it another way – you may not be interested in politics, but politics is interested in YOU. You either fight for what you believe in, based on that knowledge, or you accept the outcomes that other people who are more willing to fight for what THEY want will grant you,

    (and remember – those dedicated to making a lot of money from controlling governmental outcomes to suit their own private purposes will fight very, very hard to keep that gravy train rolling)

  33. Paul Coppins says “ATI probably argued the case badly”

    Whether that is true or not, the people of Viriginia in theory have a freedom of information that exists however poorly that freedom is stated. The fact the court chose not to honour that freedom marks a dark day. Gator says it best, the government monitors you, but you can’t monitor it.

    Freedoms in America are being not so slowly diluted into priviledges doled out when convenient.

  34. Harry Passfield says:

    I am not an American: Is the SCOVA the last step or can this go to SCOTUS? What are the unintended consequences of such a perverse ruling?

  35. Robert Clemenzi says:

    I agree with the decision. Before objecting to it, I suggest that you read the whole thing. In particular, the comments by John Simon (Vice President and Provost of UVA and former Vice-Provost of Duke University) make a lot of sense.

  36. Paul Coppin says:

    Some of you need to actually read the decision. For observers of legal process, there is a ton of insight in this decision, none of it having anything to do with a public right to know anything. The appeal to the Va Supreme Court failed on the varying common use definition of the word “proprietary” as established by the Va legislature in a number of statutes. The consequence of that fact gave the court little wiggle room to vary the interpretation of the lower court because of solid case precedence specifically in its use in the VAFOIA. It appears ATI’s counsel missed the very important point that Virginia has its own common definition of “proprietary” established in case law usage ( actually multiple definitions) and it’s not what they trotted out in their arguments. ATI may have argued oranges, while the appeals court concerned itself with the legislated varieties of apples.

  37. David Ball says:

    What they say; “More transparency in government”.

    What they do; Less transparency in government.

    Surely the information in those emails could only strengthen their position, right?

  38. wws says:

    “I am not an American: Is the SCOVA the last step or can this go to SCOTUS? What are the unintended consequences of such a perverse ruling?:

    Generally, rulings based on State Law stay in State Courts, with the only exception being if the appellant can make a convincing case that there is a core constitutional issue involved. I don’t see that happening here, so this looks like the end of the line, unless the Legislature gets involved.

  39. hunter says:

    Corruption all the way. This is a good heads up about how the AGW social mania has corrupted all it touches.
    This fight is far from over. This is like when abolitionists were losing in court, or the Dredd Scott case that institutionalized racism.
    Be prepared for a long fight.
    Of course, a nice leak right about now would not be a bad thing.

  40. Berényi Péter says:

    I don’t see why the good People of Virgina would be interested in funding generation of “information of a proprietary nature” on their tax money, but it is their business.

  41. John Whitman says:

    Just posted this at Bishop Hill’s blog:

    Why this VA Supreme Court decision ‘favoring’ government funded scientist secrecy?

    In ~1960 Eisenhower warned about the entrenchment of subservient science within government funded programs.

    It appears those scientists listened very carefully and did it.

    It appears the majority of us did not listen.

    John

    John

  42. Resourceguy says:

    This is not that surprising considering the precedence of how science is mangled in the policy and regulations sausage factory by the likes of John C. Beale. Also, imagine what public health would look like if health science was conducted this way. Clearly, there are double standards of conduct, integrity, and process when human health and huge damage litigation are at stake– climate science not so much.

  43. Bad Andrew says:

    Headline: Judge Bound By Legalism To Render Unjust Decision

    Andrew

  44. jauntycyclist says:

    how legal logic works

    in the old days if you opposed the say so of the king then as the king was ordained by god that made you against god’s will thus a heretic. As a heretic you were in league with the devil and associated with demons and practiced witchcraft thus maybe burnt at the stake. All perfectly legal.

    i doubt in any age the legal system hasn’t been used as a hammer to defend the current fashion of truth held by the state. IPCC is state policy. anything that threatens that will be crushed,masked, suppressed etc.

    laws are man made. the truth isn’t. so expect divergence

  45. jdgalt says:

    If there is any justice, this will lead directly to a summary dismissal of Mann v. Steyn.

  46. Schwarze Tulpe says:

    With this ruling an essential scientific credo “Nullius in verba” is effectively dead with regard to the work of the professors at UVa. I would simply suggest that it is entirely apropos to summarily disregard or dismiss any research paper prepared by the university.

  47. Sean says:

    What puzzles me is that people are surprised by this ruling?

    I don’t doubt that there will now be allegations of NWO/Illuminati/Power Elite and perhaps even the Masons, but the real truth of it is “the old boy network covering its arse”

    Money, even “new” money has, and always will, look after it’s own.

  48. mpcraig says:

    “to avoid competitive harm”

    What competitive harm?

  49. Jud says:

    The US government has cause to be wary here.
    If a government funded institution were ever to produce something revolutionary and of significant value the university could claim sole ownership and sell to the highest bidder.

    I suppose the counter to this is that it is extremely unlikely the current batch of government funded ‘research’ universities will ever produce anything of value.
    I can’t imagine the Russian and Chinese governments getting into a bidding war over ‘Recursive Fury’

  50. LadyLifeGrows says:

    This is very sad. It appears that the law is the corruption, not the judges, but there is no justice when Steyn’s RIGHTS to Discovery in a lawsuit have been violated, and not for patent.
    Part of the problem is far too few scientists who really understand and love science as a glorious method of exploration of Nature’s laws. Many who are able to do real science are never-the-less prostitutes who produce apparent science for money. This includes many climate scientists (ok, probably most of them but I can’t prove it). Those “scientists” are politicians, not science lovers.

    Part of what we are trying to do in the Climate Skeptic movement is restore real science. The laws and the courts are two vital parts of that challenge

  51. Merovign says:

    That’s okay, secretive quasi-governmental organizations hardly ever go wrong, do they?

  52. Gunga Din says:

    Dave says:
    April 17, 2014 at 8:19 am

    “information of a proprietary nature”
    What in God’s name is proprietary about climate research? I thought Mann was trying to enlighten us plebeians as to the dangers of global warming.

    ======================================================================
    In the Old West during the various gold rushes a hopeful miner would put down a stake to mark his claim. I guess there’s only room for one at the top of the Mann-made pedestal.
    Let’s hope that Mr. FOIA has a relative.

  53. phlogiston says:

    By this precedent, the FOIA ceases to exist.

  54. mstickles says:

    …provision allowing a public entity to make reasonable charges for its actual cost incurred in accessing, duplicating, supplying or searching for requested records, “searching” includes inquiry into whether a disputed document can be released under federal or state law, and this statute permits a public body to charge a reasonable fee for exclusion review. The circuit court’s judgment excluding disputed documents and approving such cost recovery is affirmed…

    Am I reading this right? It seems to say that not only can the university say “no” to your FOIA request, they can charge you for their time in determining that they can say “no”.

  55. Paul Coppin says:

    @mstickles its a “freedom of information” act, not a “free information” act. Regardless of whether the information gets released or not, somebody has to copy it, read through it all to expunge “un-named third parties” and other information not specifically material to the FOI request, and decide if it meets a range of criteria for release frequently governed by many statutes including a number of privacy acts. There’s a lot of manpower consumed in these. Its a big job lots of times. I’ve seen our clerks spend days copying banker’s box upon banker’s box loaded with paper, all of which somebody has to sit down and read page by page to “sanitize” for release.

  56. wws says:

    “The US government has cause to be wary here.
    If a government funded institution were ever to produce something revolutionary and of significant value the university could claim sole ownership and sell to the highest bidder.”

    Nah, can’t happen. Rules today only exist insofar as they are convenient and useful to the Ruling Elite. The instant they become inconvenient for the Ruling Elite, they cease to be Rules.

  57. bonanzapilot says:

    The four ways to spend money….. http://m.youtube.com/watch?v=5RDMdc5r5z8

  58. cbone says:

    Dr. C asks: “My question is about jurisdiction. Can the District court in DC order UVa to cease on its stated intent to destroy these emails? Also, is this the kind of decision that can be appealed to SCOTUS, or is this strictly a VA only issue? (It seems that this decision was based on VA FOIA laws, not Federal laws, or am I mistaken?)”

    First, UVA is a third party to the suit between Stein and Mann. If Stein has served them with a subpoena they can not destroy the files until the subpoena is finally adjudicated. Either they produce the documents or they successfully object to production. They can’t delete them until these processes have been completed and their normal document retention policies fulfilled.

    Second, I doubt this will get appealed to SCOTUS. I don’t see there being any Constitutional issues involved. I skimmed through the opinion and did not see any Constitutional arguments, it was all State Law and interpretation of State Law.

    CB

  59. Phil. says:

    Trey says:
    April 17, 2014 at 7:29 am
    Now.. vote to END support for “higher ed” that does not disclose
    everything.

    Would you apply this to Ross McKitrick (Steve McIntyre’s collaborator) who hides behind Canadian FOI law to avoid providing his data?

  60. john robertson says:

    I see yet another decision by a “public Authority” that supports my contention; CAGW is an intelligence test.
    More fools and bandits exposed for the pleasure of the taxpaying public.
    Sooner or later the ever suffering payee for this rubbish will conclude, as government compliance with law is selective, contributions to government will be too.
    Voluntary taxes?
    Whatever point of law or nuance as to the definition of proprietary, the public owns this institution and the work of all who sponge from their wealth.
    No disclosure will equal no tax support.
    Kleptocracy will always produce this kind of feedback.
    Probably the reason government by thieves for thieves never lasts very long.

  61. Dan Toppins says:

    M Mann conducts science research!? I thought it to be politcal pandering/lobbying myself.

  62. MangoChutney says:

    If a publicly funded body is allowed to withhold data from the public who paid for that data, are the public allowed to calculate their tax, deduct the percentage that goes to public funding of that body, and inform the tax office of their reasons doe withholding?

    Nahhhh, thought not, but you should.

  63. MangoChutney says:

    @phil

    “Would you apply this to Ross McKitrick (Steve McIntyre’s collaborator) who hides behind Canadian FOI law to avoid providing his data?”

    Any work by McKitrick that is funded by the University of Guelph, should be subject to the same laws as anybody else working in publicly funded positions in Canada or elsewhere in the world where FOIA applies.

    Now please demand the release of all Mann’s data under US FOIA

  64. Steven Mosher says:

    “The competitive issue of public schools vs private schools is an interesting wrinkle. The decision is not a failure of the court to uphold access to publicly funded information, it’s a failure of the state legislature to properly construct statutes with consistent common use terminology.”

    Ditto.

  65. bonanzapilot says:

    CB: But if you take the VA FOIA argument to the extreme, what is there to prevent any State’s individual law from containing so many exclusions that essentially has no FOIA at all?

  66. Phil. says:

    MangoChutney says:
    April 17, 2014 at 12:06 pm
    @phil

    “Would you apply this to Ross McKitrick (Steve McIntyre’s collaborator) who hides behind Canadian FOI law to avoid providing his data?”

    Any work by McKitrick that is funded by the University of Guelph, should be subject to the same laws as anybody else working in publicly funded positions in Canada or elsewhere in the world where FOIA applies.

    But it isn’t! Also the research data that is demanded of Mann was not funded by his university.
    It’s hypocritical of McKitrick to organize a mass submission of FOI requests to others when he himself knows that he’s protected against similar requests. See below foe example.

    “UNIVERSITY of GUELPH OFFICE OF THE PROVOST

    Dear Mr. xxxxxxx,

    I write in response to your request which was received by the University on May 3, 2010 under the Freedom of Information and Protection of Privacy Act (FIPPA) for access to the following:
    “…copies of all letters written to and received from Stephen McIntyre, Patrick J. Michaels and Anthony Watts for the period of 2002 to current date by Ross McKitrick of the University of Guelph. The information is to include all copies of documents that may be backed up in mail servers.”

    Your request for access to the responsive records is denied. The reasons for this decision are outlined below.

    Subsection 65(8.1) of FIPPA states that the Act does not apply to “a record respecting or associated with research conducted or proposed by an employee of an educational institution, or by a person associated with an educational institution”. This exclusion is intended to preserve academic freedom and competitiveness; in particular with respect to specific, identifiable research projects that have been conceived by a faculty member of the University. Records identified as responsive to your request are in regard to research being conducted or proposed by the authors, thereby excluding them from the scope of the Act.

    Additionally, s.21(1) of the Act requires that the University refuse to disclose personal information to any person other than the individual to whom the information relates. Responsive records that were not respecting or associated with research conducted or proposed by Professor McKitrick were personal in nature; therefore, the University is obliged to protect these records.

    In light of these factors, your request for access to responsive records is denied. “

  67. Resourceguy says:

    The honorable thing to do in climate science fraud, if there was any honor about.
    http://thepluripotent.com/2014/04/16/scientist-apologizes-for-mistakes-in-stem-cell-research/

  68. Joseph Bastardi says:

    When I was at PSU I had to list all my sources for a 1 credit paper on estimating the highest wind gusts on the eastern side of of a recurving hurricane ( though the method worked, I was shown the physical reasons so often accepted are not the reasons.. you cant tack on the forward movement of a storm as a tropical cyclone is not a solid sphere rotating through space, but a gas within a a gas. Even today, that argument is nonsense. Wind speed around a recurving storm has to do with alignment of the wind and where enough turbulence from the tropical source forcing can still get the winds down to the surface. Its the reason for why it rains hard with less wind on the northwest side and rains less with more wind on the southwest side of the storms.. as the storms become post tropical the rapid sinking can bring the strong winds down to the surface behind the storm for a time.. while to the east, enough banding can hold on for streaks of powerful winds) Most of the peak wind gusts on the mid atlantic coast of hurricanes passing to the east occur after precip is done and are out of the northwest!) In any case 1) I had to list all my sources, every storm with peak wind gusts on the eastern side ( it was what I was looking at..the other aspects disproving me came later in my career) and B) SUBSEQUENT INFORMATION REVEALED I WAS WRONG.

    My point Has it come down to the fact a 1 credit paper would get more scrutiny at PSU than something that has so many other studies to disprove it as Manns idea at UVA? Is that what they are about? It seems to me like its been decided that if the information comes out showing that it can easily be disproved, alot of problems occur, and not only with Dr Mann.. but implications at UVA and PSU. Then there is the little problem of a tax payer funded project that has lead to alot of the missive on agw, being challenged and rebuked. Dr Mann still refuses to answer how so many other studies do not show what he does. He has not answered as to how he knows the medieval warm period was “local” if he can not find a compensating cooler area to balance out the earths temperature! After all if he is telling us that was a local event, where is the counter cooler area to make sure the global temps were as he says? And that no one seems to press him on this matter even on his side of the issue is truly astounding to me. If you are going to tell us the earth s temp was constant, but say there was a warm area, where is the colder area.

    And so now we see a situation where basically people that wish to challenge Dr Mann can not even have access to what it is they are challenging him over.

    As for me.. I just want to see a nice open minded debate on this. A modern day court of Katherine the Great. Heck even then , scientists would go at it, rather than avoiding it.

  69. Lil Fella from OZ says:

    America was the land of the free. Over in Australia they ‘fight’ for democracy, they blow the trumpet to fight for democracy in many overseas countries but it depends on whose definition. It is systems based not democracy. Democracy is heavily reliant on truth and transparency.

  70. Paul Coppin’s ad hominem attack on me, lead attorney in the case, demonstrates complete ignorance with regard to the pleadings filed in the case. We will likely ask for a rehearing before the Court at least as to who made the argument that the Court adopted regarding the meaning of “a proprietary interest”. We made the argument the Court adopted and not only did UVA not make the argument, they rejected the argument.

    On the independent issue as to whether release of the emails themselves would harm the competitive advantage of the university, the Court simply did not look at the actual emails. Had they done so, they would have found nothing that would cause any competitive harm to UVA in any marketplace. Instead, the Court accepted the fear of a chilling effect, one not supported by any facts, as placing UVA at a competitive disadvantage to private universities. The practical effect of that decision is to write UVA out of the virginia FOIA.

    As for Mr. Coppin, I have no polite response to his ad hominem. I have many impolite ones and if he has the guts, he can call me and I’ll be happy to share every one of them with him.

    David W. Schnare, Esq. PhD
    General Counsel
    Energy & Environment Legal Institute

  71. Mann manages to lower the bar for all science originating in Academia to less than zero. The Climate Industrial Complex erupts in cheering.

  72. Lauren R. says:

    Not really a blow to “open science.” It’s just a setback to accessing Mann’s e-mails. As far as I can tell, it seems to be a good decision based on Virginia Law. See paragraph 4:

    https://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+2.2-3705.4

    Mann and his serially bad science notwithstanding, universities have a compelling reason to protect proprietary research. They frequently patent the technology they develop. That’s a good thing.

    “Science” has never been as “open” as many would like to think and there’s nothing wrong with that. Some things are better developed through openness and collaboration and others through private research in competition with other groups. There are merits and faults to both and neither is better at avoiding erroneous conclusions. Even the seemingly more open collaborative method produces cliques that ascribe to a specific group think that impedes progress; see for example the current histrionics of so-called climate science.

    As for Mann’s strange science, the best takedowns haven’t come from FOI requests. They’ve come from skeptics trying to replicate his research like Ross McKitrick and Steve McIntyre.

  73. David W. Schnare’s remarks are interesting and appreciated. I wonder if the judges took ‘judicial notice’ of commonly known facts behind closed doors without mentioning it in their decision….like, CAGW is an accepted fact. FOI suits like this which hope to poke holes in the science are nothing more than a nuisance and contrary to the public interest and well being. Not that it matters; they were able to rule based on other things.

  74. Theo Goodwin says:

    mstickles says:
    April 17, 2014 at 10:32 am

    Very funny, Of course, there will be a separate charge to each person making a request even if that request is number 1,000,000 with the exact same wording and the response has been boiler-plate for years.

  75. Theo Goodwin says:

    Lauren R. says:
    April 17, 2014 at 2:38 pm

    Sorry, but you are engaging in apologetics for the “new” university where the line between university and business gets blurrier and blurrier daily. That institution should not exist. If the research is worth dollars then it should be done through a private corporation. Scientists are extremely good at fund raising. They have no need to depend on the university.

  76. WilliamL says:

    The hicks on the Virginia bench don’t understand that research which is conducted at the expense of and for the benefit of the public may not be withheld from the public.

    UVa thrives on federal dollars, which it collects on the supposed grounds of benefiting US citizens. Sue it in federal court and have issued a forthwith injunction to freeze all records.

  77. Richard G says:

    Why is this process so disturbingly like Calvinball? For rules see http://www.bartel.org/calvinball/

    The Unofficial Official Rules of Calvinball

    Permanent Rule: You may not play the Calvinball the same way twice.

    Primary Rule: The following rules are subject to be changed, amended, or deleted by any player(s) involved. These rules are not required, nor necessary to play Calvinball.

    1.0. The following words in these rules are mostly freely interchangeable, the Primary Rule applies:

    Can

    May

    Must

    Shall

    Should

    Will

    Would
    (Cont)

  78. Alan Robertson says:

    None of you peons have any say. None. Get back in line.

  79. Paul Coppin says:

    I understand Mr. Schnare is quite appropriately upset at the decision at trial, however, I do not accept that my opinion expressed earlier constitutes an ad hominem attack against Mr. Schnare personally. I did not name him in my comments and my reference to counsel was generic.

    Mr. Schnare is correct; I have not read his pleadings in the file. My opinion, as stated, was based on a quick read of the decision. No doubt further refinement of my opinion would follow upon a more in depth review. From my perspective as a foreign observer, there are several things in this decision of legal interest to me, irrespective of the emotional impact of the decision. I am not a lawyer; I enforce a number of federal statutes in my own jurisdiction and therefore have considerable interest in legal definitions, particularly when the same phraseology acquires different meanings in different statutes within the same compendium of law.

    As to Mr. Schnare’s last comment, I won’t acquiesce to the taunt of a schoolyard bully on an internet forum. Where I come from, that comment may form the basis of a prosecutable threat.

    Adverse court decisions are always personal to those who have to suffer them, especially when the counsel is as personally engaged as Mr. Schnare is. Hopefully good judgment, logic and reason can follow once the emotions have settled, and effective next steps can be crafted through this legal quagmire.

  80. dbstealey says:

    Paul Coppin says:
    April 17, 2014 at 8:06 am
    On a quick read through and without looking at the referenced cases, I note two things: ATI probably argued the case badly, and the ruling is a cautious ruling.

    Paul gives them far too much benefit of the doubt. As Mark Steyn correctly stated today, this was a heavily political decision.

    As Larry Geary says:

    Who would have imagined politicians in robes supporting politicians in lab coats?

    That is exactly what happened. Ever since that snake in the grass John Roberts called 0bamacare a “tax” and singlehandedly approved it, it is clear that the fix is in. The Judiciary is corrupted.

    There is no sugar-coating this. This decision was made by politicians on the take, masquerading as judges. There are always ‘reasons’ that can be found to justify corruption. This sort of undermining of our laws is accelerating. Now it is rule by decree.

    Further, judges rule on the Legislature’s intent all the time. It is disingenuous to claim in this instance that the court couldn’t understand the intent. The intent of FOI is that taxpayers should see what they are paying for. In the event, Alan Robertson said it best:

    None of you peons have any say. None. Get back in line.

    If Paul Coppin has a good argument, he needs to produce it. Making excuses based on “a quick read” is enabling this sort of anti-American behavior. Stop it.

  81. TImothy Sorenson says:

    How long before, “Mann exonerated”, in one more investigation of his research?

  82. dbstealey says:

    Phil. says:
    April 17, 2014 at 12:40 pm [ ... ]

    It does not surprise me in the least that Phil. comes down on the side of withholding science from the public that paid for it. Open review by the taxpaying public should be the number one priority, above anything else. But as we know, ‘reasons’ for hiding data and methods can always be fabricated.

    Mann is a liar, a coward, a charlatan, and a corrupt scientist. That is my considered opinion, and I stand by it. Any ‘scientist’ who refuses to disclose his methodology and data for more than seventeen years is corrupt. Honest scientists do not do that. Honest scientists do not claim to have won the Nobel prize when they didn’t. Honest scientists follow the Scientific Method, which requires public validation of one’s work in order to verify whether there were errors. That is the only way that science progresses. Otherwise, it is Lysenkoism.

  83. yirgach says:

    I estimate we’re about three more 1200-page bills from a revolution.

    — David Burge (@iowahawkblog) June 25, 2013

  84. John says:

    So there’s no proof that Mann’s calculations are correct? We just have to take his dubious word for it? Mighty suspicious…

  85. crosspatch says:

    Don’t they have to search for them in order to destroy them? Once collected in a file, there is no more cost to using the “copy” command to duplicate them than there is to use the “delete” command to destroy them.

  86. dbstealey says:

    I note that Mango Chutney replied to “Phil.”:

    Any work by McKitrick that is funded by the University of Guelph, should be subject to the same laws as anybody else working in publicly funded positions in Canada or elsewhere in the world where FOIA applies. Now please demand the release of all Mann’s data under US FOIA.

    But I didn’t notice Phil. demanding the release of anything. As usual when Phil. is cornered, all we hear are crickets.

    Mango Chutney illustrates the big difference between honest scientific skeptics, and apologists for the alarmist clique. apologists. It has to do with integrity.

  87. Richard Weiss says:

    Freedom Dies one ruling at a time. Either wake up and refuse to be sheep led to the slaughter at the hands of the totalitarians or fall in line!

  88. Stacey says:

    Every cloud has a silver lining?
    Mann’s nature and his deceit are clear for all to understand.
    The fact that this decision is bad does not detract from the fact that Mann is frightened to show his work. Thus his work is meaningless just as his trickery to hide the decline.
    What’s he got to hide?

  89. Gunga Din says:

    You’d think that if Mann “et al” really believed the doom and gloom being preached they would be eager to put the data out there so as to prove their case and save us all.
    Why would an egotist refuse to open himself up to all the accolades from a grateful world?….unless….

  90. Paul Coppin says:

    To the mods or Anthony: I don’t appreciate David Schnare’s open threat to me and my family being quietly edited from his post and his subsequent partial retraction removed without an indication of a redaction to the posts. Sober second thought is not routinely offered to posters on this forum and the edit ability disappeared as fast as it appeared. We all say things from time to time we regret once we hit the post button. Life doesn’t always offer a redo…

    [What evidence of quiet editing? Mod]

  91. beng says:

    “Judges” are as biased as anyone else. Lately they just uphold the current culture to “get along”. Don’t hold your breath for any courageous decisions.

  92. beng says:

    ***
    Phil. says:
    April 17, 2014 at 11:30 am

    Would you apply this to Ross McKitrick (Steve McIntyre’s collaborator) who hides behind Canadian FOI law to avoid providing his data?
    ***

    Go ask at ClimateAudit. I’m sure Steve McIntyre or Ross McKitrick would grace you w/a response.

  93. Paul Coppin says:

    “[What evidence of quiet editing? Mod]” Really? Are we now going to have to screencap everything here too?

  94. mike says:

    Will they actually begin destroying the emails already? or is there further delaying action possible? The longer it is delayed, the greater chance there is of final release. But if they’re destroyed, obviously not….

  95. Matthew R Marler says:

    Paul Coppen, thank you for good posts.

    I am disappointed, but that’s the way the law reads.

  96. Matthew R Marler says:

    Theo Goodwin: Sorry, but you are engaging in apologetics for the “new” university where the line between university and business gets blurrier and blurrier daily. That institution should not exist. If the research is worth dollars then it should be done through a private corporation. Scientists are extremely good at fund raising. They have no need to depend on the university.

    Maybe yes, maybe no, but that isn’t the way state and federal laws are worded now. The laws have been publicly debated for decades now, and your view was voiced. The majority of legislators disagree with you.

  97. Matthew R Marler says:

    David Schnare: We will likely ask for a rehearing before the Court at least as to who made the argument that the Court adopted regarding the meaning of “a proprietary interest”. We made the argument the Court adopted and not only did UVA not make the argument, they rejected the argument.

    I appreciate your rebuttal and I shall follow the story.

    One question: We hear the phrase “chilling effect” all the time. Does it generally have to be supported by some or many facts?

  98. Phil. says:

    dbstealey says:
    April 17, 2014 at 4:26 pm
    Phil. says:
    April 17, 2014 at 12:40 pm [ ... ]

    It does not surprise me in the least that Phil. comes down on the side of withholding science from the public that paid for it.

    And where exactly did I do that?

    dbstealey says:
    April 17, 2014 at 8:15 pm
    I note that Mango Chutney replied to “Phil.”:

    Any work by McKitrick that is funded by the University of Guelph, should be subject to the same laws as anybody else working in publicly funded positions in Canada or elsewhere in the world where FOIA applies. Now please demand the release of all Mann’s data under US FOIA.

    But I didn’t notice Phil. demanding the release of anything.

    Like you haven’t demanded that McKitrick stop his hypocrisy of making FOI demands of others knowing that he can hide behind the FOI laws which apply to him! Note that Mango thinks that McKitrick should release only that work that is funded by the University of Guelph but Mann should release data from non university sources. Conditions applied to grants from government entities such as NOAA and NSF usually require that the investigators submit their data to the granting body, why not ask them for the data?
    With regard to MBH 98, Mann wasn’t even the PI of the study, he was just a grad student, why not ask Bradley for the data?

    As usual when Phil. is cornered, all we hear are crickets.

    Who’s cornered? Just because you can’t understand what you read, doesn’t mean that I should jump to your or Mango’s tune. When McKitrick and McIntyre release their data/email I’d have more sympathy for their demands.

  99. Disclaimer: Please remind any elite hackers whom you may know that, while it may be tempting to demonstrate skill and achieve fame, albeit anonymously, breaking into UVA’s servers, hard-drives, etc. to retrieve emails is highly illegal and punishable under law. The excuse that you did it for the good of mankind, truth and justice will fall on deaf ears. You will go to the crowbar hotel. Nothing on this forum should be construed as condoning or recommending any such illegal act.

  100. Dr C says:

    Phil. says:

    [snip] With regard to MBH 98, Mann wasn’t even the PI of the study, he was just a grad student, why not ask Bradley for the data?

    Anyone who works in and understands academia knows that it is always the first author who has primary responsibility for a paper. First author handles any press inquiries, requests for data, whatever.

    I find it amazing that after 12 years of Mann being the primary focus of the critiques of MBH98 that some moron comes along now and suggests that people have been contacting the wrong person all along.

  101. Phil. says:

    Dr C says:
    April 18, 2014 at 8:28 pm
    Phil. says:

    [snip] With regard to MBH 98, Mann wasn’t even the PI of the study, he was just a grad student, why not ask Bradley for the data?

    Anyone who works in and understands academia knows that it is always the first author who has primary responsibility for a paper. First author handles any press inquiries, requests for data, whatever.

    As one who has worked in academia for several decades I know that it is frequently not the first author who has primary responsibility for the paper! The more usual practice is to have the grad. student as the first author and the advisor as the last. Looking at the latest issue of Nature, which separately indicates who the corresponding author is, the last author is always the corresponding author. Different journals have different policies (Science apparently has a similar policy) but it is absolutely not true to say:
    “it is always the first author who has primary responsibility for a paper.”

    I find it amazing that after 12 years of Mann being the primary focus of the critiques of MBH98 that some moron comes along now and suggests that people have been contacting the wrong person all along.

    If you want information about a paper you do ask the corresponding author, if you want information regarding the results of a grant supported research study you ask the PI not a grad student! Several posters here, such as Mango, have said that the results of publicly funded research should be accessible to FOI requests, for that you would go to the PIs not grad. students. I find it amazing that you would think otherwise.

  102. Mervyn says:

    This comes as absolutely no surprise to me.

    This news is as bad as the ‘Kiwigate’ temperature fudging case decision in New Zealand in which the New Zealand High Court judge, Geoffrey Venning, ruled that the High Court was not competent to rule on questions of science.

  103. Gail Combs says:

    Fine if they OWN it they can PAY FOR IT!

    CUT ALL FUNDING OF ACADEMIA! And while you are at it cut all grants for science too.

  104. Gail Combs says:

    Lauren R. says: @ April 17, 2014 at 2:38 pm

    …Mann and his serially bad science notwithstanding, universities have a compelling reason to protect proprietary research. They frequently patent the technology they develop. That’s a good thing….
    >>>>>>>>>>>>
    You are completely missing the entire point. if the research is “proprietary research” you do not write a paper on it and submit it to a journal until AFTER the patent number has been assigned. If it is submitted to a journal it darn well include ALL the information or it is not science.

    It really is that simple.

  105. Patrick Shoemaker says:

    “Research withheld” … “Mann’s nature and his deceit” … “Judges on the take” … What a bunch of whiners. Mann’s data and conclusions have been published in multiple peer-reviewed papers. The court has LOOKED AT the evidence and applied legal standards regarding public disclosure in order to make a ruling. Now, if I were to send a personal email to an academic colleague stating “half the people commenting on Wattsupwiththat are friggin’ idiots clamoring for the fossil fuel-funded Mann witch hunt”, while it might be fine with me if it became public, the colleague might reasonably not wish my email or his/her replies to be made public. This whole effort is a FISHING EXPEDITION to try to embarrass a scientist whose research threatens powerful interests — not some deeply principled exercise of FOI rights. Get over it.

  106. Andrew Mc. says:

    Not sure if Mr Schnare will see this, but as an interested lay reader in another country I’d like to know how the Virgina court justified their use of this Green definition.

    I would try to argue the lower court and the appeals court have erred in applying this broader “Green” definition because this broader interpretation of “proprietary” :
    • A) is no longer specific to the objectively defined individual piece of information that was requested, but is then an open-ended subjective definition including anything which if divulged under any circumstance for any as-yet-unimagined purpose could be interpreted by anyone anywhere in any manner with subsequent institutional harm of a value which is totally speculative, AND
    • B) is broad enough to be inconsistent with the specificity of the other financial, copyright, and patentability requirements of the VFOIA exemption, and
    so can be used to defeat the wide-ranging original public accountability purpose of the FOIA in all other publicly funded institutions.

    One of the purposes of FOIA is to uncover waste in government, which means divulging expenses, which implies releasing the “institution’s financial or administrative records”. A court could easily find that a university was justified in concealing the identities of its major donors and their donations, but was not justified in concealing the expense of a $2400/night hotel room in the Bahamas for a research trip. The original intent of the legislation affects the interpretation of the wording.

    To understand the meaning of the word “copyrighted” in the FOIA exemption 7 you would have to know the original intent was to exclude works copyrighted by an entity other than the public institution, where redistribution under FOIA would violate copyright. Without that background you could assume a literalist interpretation of exemption requirement 7, which would imply all information would be excluded from FOIA because all information is automatically copyrighted by someone. The terms in FOIA can’t be retroactively shoe-horned into some different meaning beyond their original intent.

    The non-patented requirement suggests the narrower interpretation of “proprietary”, because any information portion of an email that could be the subject of a patent would be valuable enough to increase the reputation of the host institution when it becomes publicly known, not decrease it. The “original intent” principle that is clearly needed by the term “copyright” can then be applied to the “proprietary” clause too. The FOIA exemption is intended to protect commercially valuable information up until the time the realisation of that value requires it to be divulged to the market anyway (eg patent). The term “proprietary” should be interpreted in that context. Therefore, show us the business plan or show us the emails.
    Could that argument work?

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