The Climate Wars and the University of Delaware

Guest essay by Jan H. Blits

May a public university manipulate a Freedom of Information (FOIA) request of a faculty member in an effort to squelch the politically incorrect side in the on-going climate wars?

The University of Delaware, which has a long, sorry history of political correctness, seems to think that it may—even if its actions violate the faculty member’s academic freedom, Delaware’s FOIA law, and the University’s own FOIA policy, while the University offers a bogus, incoherent, disingenuous, and arbitrary justification for its actions.

In December, 2009, David Legates, a University of Delaware professor who was the Delaware State Climatologist from 2005 to 2011, received a FOIA request from Greenpeace. Greenpeace sought Legates’ “e-mail correspondence and financial and conflict of interest disclosures” that were “in the possession of or generated by the Office of the Delaware State Climatologist” from January 1, 2000, concerning “global climate change.” Legates is an outspoken critic of the evidence used to show the human effect on climate.

Under Delaware state law, FOIA requests to the University for a faculty member’s academic materials are limited to activities supported by state funding. During Legates’ tenure, the State Climate Office received no state (or University) funding. Nor did Legates receive any state funds for his work as State Climatologist, and the State Climate Office never undertook activities concerning “global climate change.” In short, none of Legates’ work fell within the scope of the FOIA request.

Nevertheless, UD Vice President and General Counsel. Lawrence White, decided that Legates must provide more than Greenpeace had requested. White summarily informed Legates that he was required to submit not only all State Climate Office documents, but all documents in his possession relating to global climate change, whether or not Greenpeace had requested them. White’s expansive list, covering all of Legates’ teaching, research and service materials going back to 2000, included work unrelated to the State Climate Office, whether conducted on Legates’ own time or on University time, through his personal e-mail or his University e-mail, on his personal computer or a University computer, both in hard files and on computer disks. According to White, Legates had no choice. As a faculty member, White instructed him, Legates had to comply with the request of “a senior University official.” It seemed not to matter to White that the Delaware FOIA law limits requests to state-funded activity and UD’s own policy limits it further to research that is state-funded.

The Virginia Supreme Court recently ruled that, despite Virginia’s FOIA law, the University of Virginia was correct in refusing to comply with a FOIA request for the records and e-mails of a former faculty member, Michael Mann, famous (or infamous) for his alarmist “hockey stick” image of the recent rise in global air temperature. The Virginia law had made all UVA faculty members subject to FOIA requests. The Delaware law, in contrast, restricts requests to faculty who are state-funded and to the work they carry out with state funds. (State money accounts for only a small portion of UD’s revenue.) For many years, the University administration has designated some faculty as doing state-funded work, but kept or removed faculty members from the list if administrators believed that they were likely to receive an unwanted FOIA request. For reasons administrators have declined to explain, a small portion of Legates’ teaching salary was, curiously, placed on the list of state-funded activity shortly before Greenpeace filed its FOIA request in 2009.

A month after Greenpeace’s request to Legates, the Competitive Enterprise Institute, an opponent of Greenpeace, filed a nearly identical FOIA request with UD for information on three other Delaware faculty members. These three had contributed to the Intergovernmental Panel on Climate Change, a United Nations group often (and recently) warning of the catastrophic effects of global warning. White, wasting no time, “answered with a short ‘no’” (his words). “[B]ecause the information you seek does not relate to the expenditure of public funds,” he told CEI, “the University respectfully declines your request.” When asked to explain the disparate treatment, White advised Legates that he (Legates) did not understand the law. Shifting ground and muddling his own argument, White said that while the law did not require him to give Greenpeace all the documents he had requested from Legates, the law did not prohibit him from requiring Legates to produce them for White’s own review and for potential release to Greenpeace. Although having no more than the law’s silence to justify his trampling of Legates’ rights, White, once again, ordered Legates to comply. His authority as a “senior University official” evidently trumped Delaware law and University policy. Under pressure, Legates submitted all the demanded materials in March, 2010.

Under Delaware law, FOIA requests must be answered within ten days (unless there is need to consult with an agency counsel), but White did nothing with Legates’ materials for more than 15 months. In June, 2011, he hired a third-year law student to sort through them. “We have interpreted that language [of the Delaware FOIA law] to mean that we are obliged to produce records, otherwise nonprivileged, that pertain to work by Dr. Legates that is supported through grants from state agencies,” White wrote. The law-student’s trolling came up short. The resulting file contained, in its entirety, 1) two e-mail exchanges about federal, not state, funding sources, 2) an invitation from a state agency to give a talk on climate change, for which Legates was not paid, and 3) a report to the Governor and General Assembly on the Delaware Water Supply Coordinating Council, which Legates had no hand in writing and in which he is not mentioned, but which he was simply given when he joined the Council.

White had listed a second category of documents, however, which he said the University was also “obliged” to produce. “[A]nd class-room related work such as syllabi, instructional materials, and class postings, (because a small portion of his salary was paid out of state-appropriated funds).” The file of these teaching documents contained 1) materials from Legates’ introductory course on “Climatic Processes,” 2) two e-mail exchanges with two off-campus professors about climate change and the classroom, and a third about his speaking in a graduate course, 3) his 2010 CV, and 4) his Climatologist agreement and related correspondence with the Governor’s Chief of Staff. Again, contrary to White’s false claim, the University has no obligation to produce teaching materials. Its own FOIA policy excludes requests for such materials. Teaching has always enjoyed the full protection of academic freedom. Administrators may not examine it except for cause. Despite claiming that he was “obliged” to produce the materials, White, unable to square his action with official policy, state law or rules of academic freedom, tried to trivialize it as harmless: “[T]hese materials strike me as innocuous in the extreme, and I propose to turn them over all over the Greenpeace.”

That was not all. White also decided “to produce copies of speeches, papers, presentations and other materials that were created by Professor Legates and subsequently published, delivered in lecture form, or otherwise made public.” Many of these public items were gathered from the internet by the third-year law student. The files included articles by, about and quoting Legates, his U.S. Senate testimonies, an open letter signed by him, schedules and materials from various conferences and workshops in which Legates participated, presentations and posters, etc., produced by others, and more than three thousand pdf files of journal and magazine articles Legates accumulated over the years on topics ranging from climate change and climatology to statistics and numerical analysis. While conceding that the state FOIA does not require the disclosure of public materials and Greenpeace had not requested them, White said that he would “turn them over [to Greenpeace] only because it seems potentially provocative to me NOT to surrender documents that are already in the public domain” (his caps). Never at a loss for a pretext to trample faculty rights, White, having claimed that it was harmless to violate Legates’ rights, now claimed that it would be harmful NOT to violate his rights.

This is not the first time the University of Delaware has violated a faculty member’s academic freedom and tried to silence controversial research. Twenty-five years ago, the University banned receiving grants from the foundation supporting the research of a faculty member, Linda Gottfredson. In banning the funding, the University granted that for it to “direct…its attention to the content or method of any faculty member’s research or teaching” would violate the faculty member’s academic freedom. Gottfredson won at federal arbitration when she showed that the University did precisely what it stipulated it must not do (full disclosure: I was her co-plaintiff). When reminded of this precedent and the University’s own stipulation, White, reaching for still another excuse to violate Legates’ rights, said that academic freedom does not impede FOIA requests. State law trumps University policy, he said. When reminded that Legates’ materials included nothing that was subject to the Delaware FOIA law, White dismissed the objection out of hand, without answering it. As he disdainfully declared yet again, the faculty member did not adequately understand the intricacies of the law.

It would be bad enough had White properly applied the FOIA law and UD policy to Legates, but only Legates, and exempted the three politically correct faculty from the burden he levied on Legates. But, much worse, in the guise of asserting his administrative authority and his superior understanding of the law, White repeatedly misrepresented and ignored the established policy and law. Again and again, he fabricated his own policy and law, and justified his actions against Legates on specious grounds. He used his position as Vice President and General Counsel to transform faculty protections against political interference into a cudgel to silence one side in the current climate debate.


 

Jan H. Blits, professor in the University Honors Program at the University of Delaware, is the winner of the 2011 Jeane J. Kirkpatrick Academic Freedom Award.

About these ads

43 thoughts on “The Climate Wars and the University of Delaware

  1. Wow! But I’m not surprised. Does he have any legal standing for the private documents/emails? Could he sue the University for violating the law?

    Not sure if that is the wisest move, but it sure sounds like it would be warranted. I hope that CEI can use this ‘change’ in FOIA policy to get the other professors documents then.

  2. and the outcome of all this is??………not sure myself. However, the article has proved that there’s a prat who’s General Counsel at U Delaware and should have been ignored at every turn.

  3. This is White wanting to find an excuse to fire Legates and asking Greenpeace to produce a FOIA request to serve as the excuse. I would counter attack by sending a FOIA request for correspondence between White and Greenpeace.

  4. In other words, all roads lead to GreenPeace radicals and their manipulation in academia and public policy.

  5. Dr. Blits, very one sided actions from the University’s legal “counsel”. To be expected from a lawyer. After all, they have a world to save, and all that…..

    PS: I was in the first Honors Class (1977), a very formative experience for me. I am now an engineer helping to design and built the satellites that produce the Google Earth(tm) satellite images. Who knew back in 77 that “climate change” would be the “biggest threat evah….”

    I’m sure I heard back then from folks smarter than me that we would be all out of oil by now, I must have misunderstsood.

    Nice essay, thanks Kevin

  6. This is the worst case of selective abuse I have read. What has happened since? Where is the faculty union/association that is supposed to protect members. I would love to see how much money flows through UD relating to CAGW research. My best to Prof. Legates -wish I could help from Canada.

  7. AleaJactaEst says:
    May 19, 2014 at 6:41 am

    and the outcome of all this is??………not sure myself. However, the article has proved that there’s a prat who’s General Counsel at U Delaware and should have been ignored at every turn.

    The intended outcome? Intimidation, harassment, outreach and support of Greenpeace (here) to enable them to intimidate and harass elsewhere, national socialist power over all in the “name of the poor, oppressed and minorities – as long as they are our poor, suppressed and minorities.” and not capitalist nor republican.

  8. Some people acquiesce in the persecutions of others through cowardice. Then there are those who are the cheerleaders of the baying mob, or their enthusiastic foot soldiers. When ordinary folk learn of these stories they experience revulsion and incomprehension.

    If White lived in 1940s Holland, he would have been at the front of the line when it came to uncovering the Jews hiding places. If asked if there were Jews living in his apartment block, he would name all those who lived in his neighbourhood as well.

  9. “This is White wanting to find an excuse to fire Legates and asking Greenpeace to produce a FOIA request to serve as the excuse. I would counter attack by sending a FOIA request for correspondence between White and Greenpeace.”

    this is a fantastic idea!

  10. Now imagine that wrong-side-of-history abortion ban activism by conservatives allows even more of these university partisans into real government power. Remember guys, it’s rape if you were both drunk, on campus, and will become legally rape if these university presidents become a mainstream super-majority in government. A history of anti-scientific activism by the religious right is now why skepticism has hit a bit of a wall, I’m afraid. It’s not as if we can turn low information voters around and the informed ones who are temperamentally collectivist in outlook require us to first pressure scientists to reverse course, but most scientists are utopian liberals at the very core of their self-image, so conservative politics is not the best approach to adopt.

  11. Abortion ban activism (has led? will lead?) to university lawyers playing games and arbitrarily interpreting relevant law to suit their agenda?

    Huh?

    A FOIA request to White for his correspondence with Greenpeace is definitely worth filing.

    I haven’t heard of too many state university lawyers whose salaries were paid exclusively from outside money.

  12. Junk: Forgive the pointy-headed dude from NYC. I escaped from there, and know his ilk. Elitists know how everyone else should operate. So sad. Sirens of Titan revisited.

  13. It’s good to hear at WUWT what FOIA looks like from the other side. This article makes many assertions about how Legates’ documents were not required for FOIA, since not produced with State funding etc. But who decided that was true? The thing is, it is the University that has to decide that, in the first place, and take responsibility for the decision. And how can they do that without seeing them?

  14. The hilarious thing is that they found NOTHING even remotely sensational or controversial. But to use your argument Nick, professors would ALWAYS have to give over all documents in order to let the University decide right? So my question to you is this: “Why don’t the other 3 scientists have to release their documents?”

  15. mark in toledo says: May 19, 2014 at 12:32 pm
    “So my question to you is this: “Why don’t the other 3 scientists have to release their documents?””

    I don’t think we have the facts here. But it looks as if CEI were specifically requesting IPCC materials. It may be possible to answer immediately that that is not state funded.

  16. Someone ought to FOIA White, requesting all documents relating to his understanding of these “intricacies of the law” which “the faculty member [does] not adequately understand”. I’m sure it would make his job a lot easier if all those pesky faculty members could understand and co-operate with his actions as he implements those “intricacies”.

  17. but Nick, you said: “The thing is, it is the University that has to decide that, in the first place, and take responsibility for the decision. And how can they do that without seeing them?”

    Why does that only apply in your reasoning to Legates?

  18. mark in toledo says: May 19, 2014 at 1:47 pm
    “Why does that only apply in your reasoning to Legates?”

    As I say, we don’t have the facts. You don’t know that the University didn’t see the documents.

  19. Once again, the “Stokes Knot”.

    REPLY: Well yes, even though he denies it, I’m pretty sure he’s paid to come on WUWT and other blogs and practice his craft. When I see his comments, I always think of that “how can you be so obtuse? famous scene in “The Shawshank Redemption”. -Anthony

  20. Apart from effectively harassing this academic to no obvious end, its so easy to produce a FOIA all the academic’s work and research was laid bare to Greenpeace.
    Perhaps Greenpeace was interested in not only a fishing expedition, but also to learn anything of conflicts in this academics work,so manifest in the Climate Gate emails, to use against him.
    Not a very peaceful approach if so.
    What is worrying is the Administration’s use of power.
    It is seen here as illegitimate and onerous.

  21. As concerns Mr. Stokes….”.No, father Abraham,’ he said, ‘but if someone from the dead goes to them, they will repent”.’

    “He said to him, ‘If they do not listen to Moses and the Prophets, they will not be convinced even if someone rises from the dead.’” ”

    There are none so blind….As those who WILL not see.”

  22. I am just amused at the bizarre logic. I am at a total loss by what you mean Nick. So somehow it is ok for the University to require something of Legates that they don’t require of other scientists? Why?

    Are you in favor of a FOIA being filed on behalf of all of White’s correspondence with Greenpeace? Why or why not?

  23. mark in toledo says: May 19, 2014 at 3:27 pm
    “I am just amused at the bizarre logic. I am at a total loss by what you mean Nick. So somehow it is ok for the University to require something of Legates that they don’t require of other scientists?”

    No, I’m saying that you don’t have the facts there. All you know is that UD said to CEI that they had nothing responsive. You don’t know anything about their interaction with the scientists. They may well have required them to produce responsive documents. Or to say they had none, if that was the case.

    It’s not a matter of inflicting equal burdens on staff. It’s a matter of gathering the information they need. We don’t know what was needed or how they got it.

  24. Nick Stokes says:
    “It’s not a matter of inflicting equal burdens on staff. It’s a matter of gathering the information they need. We don’t know what was needed or how they got it.”
    =======================================
    From the posting:

    “These three had contributed to the Intergovernmental Panel on Climate Change, a United Nations group often (and recently) warning of the catastrophic effects of global warning. White, wasting no time, ‘answered with a short ‘no’’ (his words). ‘[B]ecause the information you seek does not relate to the expenditure of public funds,’ he told CEI, ‘the University respectfully declines your request.’ ”

    Isn’t it curious that White could make such a rapid determination in the case of the other 3 researchers and yet it took over a year for White to respond at all in the case of Legates?

    You haven’t refuted anything in the posting. Simply stating that we don’t have all of the facts is a feeble attempt at a smokescreen. But that helps the narrative along, doesn’t it?

  25. UD Vice President and General Counsel Lawrence White would appear to be a very nasty piece of work.

    There is sometimes nothing worse than a righteous man with what he sees as a righteous cause.

  26. Nick Stokes say:…. “No, I’m saying that you don’t have the facts there.”

    Well Nick, you must feel a little embarrassed by this effort.

    I’d say it is some of your weakest work so far.

  27. Hypocrisy and fanaticism go together like hands and gloves. Our spoiled brat over paid academics excel at both fanaticism and hypocrisy.

  28. I’m not sure I understand the various forms of intrigue implied by this article, although I get a strong sense of the irony in the differences between this release and the non-release of Michael Mann’s U. of Virginia e-mails. Basically, I’m in favor of releases. If public employees have multiple roles, it’s certainly incumbent on them to organize their communications to differentiate between those roles for the purposes of satisfying public accountability needs within each role. I condemn all efforts to deceive and thwart such public accountability, as Sheila Jackson did at the EPA.

    If Greenpeace is merely fishing through his communications to find something embarrassing, then while I would stipulate that it’s a waste of time and resources (presuming that the professor hasn’t done anything embarrassing), nevertheless, the professor’s publicly funded work should not be presumed a state secret, exempt from public accountability. State secrets must be the exception, not the rule.

    “Just give it to him.” – Gavin Schmidt (to Joelle Gergis when she queried what to do with Steve McIntyre’s data request)

  29. Minor correction. I confused the first name of Lisa Jackson, head of the EPA, with Sheila Jackson-Lee, a Democratic Congresswoman from Texas (though they are both cut from the same ideological cloth).

  30. Nick Stokes, you ask a fair question that deserves a proper answer.

    Nothing was ever required of the three listed in the CEI FOIA even though Larry White agreed, in writing, that he would treat the three the same way he treated me. The fact is that the University NEVER uses state funds to fund anything except the teaching portion of our salaries. And that is done on a random basis, to protect those they wish to protect.

    The sheer fact that the University requested research materials that could not possibly have fallen under a FOIA and evaluated them violates a federal ruling in an earlier case that involved the University of Delaware. They agreed they had no right to look at research unless a formal charge of fraud or plagiarism had been filed. There may yet be legal action. See:

    AAA Case No. 14 390 1935 90 A; Arbiter’s decision available at

    http://www.udel.edu/educ/gottfredson/academicfreedom/Arbitrator_decision%288-5-91%29.pdf

    There is much more to this story which will come out in the coming months…

  31. The University of Delaware has the obligation to review UD Vice President and General Counsel Lawrence White’s conduct as he appears to have violated State and University laws and standards. The University should then inform the public if they condone White’s actions and if they plan to rectify the deplorable outcome that resulted from those actions.

  32. We’ve all seen this before. This behavior by White, and in fact the University of Delaware at large, appears to have substantial cover provided by the political players above and beyond the campus. The utter lack of respect for rules of governance and subsequent abuse of the rights of the governed, whether it be law or university policy is couched typically in a three steps. One, apply with an iron fist, any part of the governance that serves the political purpose. Two, arrogantly ignore any part of the rules of governance that are not specifically useful politically. The third,and the one seemingly used most by White, claim certain rules of governance exist when they do not but apply them with the same vigor as law.
    History is full of the cowards who bastardize governance and we usually refer to them as totalitarians. The one thing these cowards have all been fearful of was, truth of fact and Dr. Legates seems to have a mountain of facts piled up on his side of the board.

  33. The Viscount Monckton of Brenchley raises to The Hon. Beau Biden, Attorney General, State of Delaware Tough questions about FOIA abuse to the University of Delaware

    Sir, Title 29 Ch. 100: Freedom of Information Act §10005 (e) (enforcement) Refusal of a request for public information by the University of Delaware
    Under §10005 (e) of the Act, I petition you to determine whether a violation has occurred. . . .
    Whether or not you can help under §10005 (e), I also request criminal investigation of the University’s conspiracy in false accounting and in evading its FOIA obligations. . . .
    60. In what sense can the University’s misconduct towards one of its Professors, and its discrimination in favor of a totalitarian advocacy group and against a free-market advocacy group, be regarded as anything other as hostile, intimidatory, prejudiced, totalitarian, and contrary to its own declared policies and those of its relevant officials on the question of academic freedom?

  34. http://wattsupwiththat.com/2014/05/21/tough-questions-about-foia-abuse-to-the-university-of-delaware/#more-109916

    The Viscount Monckton of Brenchley raises to The Hon. Beau Biden, Attorney General, State of Delaware Tough questions about FOIA abuse to the University of Delaware

    Sir, Title 29 Ch. 100: Freedom of Information Act §10005 (e) (enforcement) Refusal of a request for public information by the University of Delaware
    Under §10005 (e) of the Act, I petition you to determine whether a violation has occurred. . . .
    Whether or not you can help under §10005 (e), I also request criminal investigation of the University’s conspiracy in false accounting and in evading its FOIA obligations. . . .
    60. In what sense can the University’s misconduct towards one of its Professors, and its discrimination in favor of a totalitarian advocacy group and against a free-market advocacy group, be regarded as anything other as hostile, intimidatory, prejudiced, totalitarian, and contrary to its own declared policies and those of its relevant officials on the question of academic freedom?

Comments are closed.