Virginia Attorney General Ken Cuccinelli has told a judge that his request for documents related to the work of former University of Virginia climate scientist Michael Mann should be granted because neither academic freedom nor the First Amendment “immunizes” a person from a fraud investigation.
The university has petitioned a judge to set aside Cuccinelli’s “civil investigative demand,” essentially a subpoena, in which he sought seeking emails sent to and from Mann before he left the university in 2005, as well as information about five public grants Mann received while at the school.Cuccinelli made a lengthy response to the university’s petition in an Albemarle Circuit Court on Tuesday. In his answer, a top staff attorney for Cuccinelli rejects several arguments that had been made by the university’s lawyers–hired specially to handle the case, which has received national attention.
Cuccinelli notes some documents he has sought are public records that could ordinarily be released through a Freedom of Information request. He also uses Mann’s own resume to indicate the grants he has asked about were awarded through the university, even though some involved federal money.
But the core of Cuccinelli’s initial response is a rejection of the university’s position that turning over Mann’s documents would violate his academic freedom. The university had been under significant pressure from academics who believed Cuccinelli’s attempt to get the documents was part of a politcally-motivated crusade scientists who have researched global warming. “Academic freedom is neither implicated nor threatened by the CIDs” Cuccinelli’s lawyer wrote, arguing that academics have no shield against allegations that they have committed fraud.
BillD: What, exactly, is an “expetition”?
I’m not sure the AG is engaging in that.
I work with FOI requests all day long in Florida. Although I don’t know how it works in Virginia, I know how it works here. First, most government employees I know seem to have little understanding of the law. Second, we are not allowed to use our opinion of the validity of the request to determine whether we will fill the request. Even if we could prove that the person making the request was up to no good, that he was going to use the information for devious and harmful purposes, we still have to provide the information quickly and completely. I suspect that the law in Virginia is essentially the same.
It doesn’t matter whether the FOI request constitutes a fishing expedition, or whether the person making the request has any reasonable hope of putting that information to good use. All the person has to do is be able to identify the documents he is looking for (such as, all the emails that Joe Blow wrote). Whether he wanted to use them to make wallpaper or whether he wanted to use them to write a character assassination of the person who wrote the emails, the law DEMANDS that we provide the information. And such is how it should be.
Barry:
At June 21, 2010 at 8:16 am you say:
“I think it will be impossible to prove fraud by Michael Mann. Re the hockey stick and M&M’s rebuttal, incompetence is the worst charge that could be declared, if that. MBH 98 was a pioneer study using new statistical techniques. If we start punishing scientists for attempting new methodologies that may or may not be valid, we neuter science, which proceeds by trial and error.”
With respect, your comment is an irrelevance. I explained why it is not relevant at June 21, 2010 at 5:06 am above.
Firstly, Dr Mann is not being investigated by the AG: the university is. So, there is no purpose in attempting to prove “fraud by Michael Mann” because he is not being investigated for fraud.
However, as I said in my post at June 21, 2010 at 5:06 am :
“It would also be true that fraud was committed if
(a) the results of past studies were cited by the University as evidence in support a claim to obtain grant monies for further research at the University,
and
(b) the University had reason to suppose the past studies were flawed
but
(c) the University did not reveal to the potential funding agency that the University had reason to suppose the past studies were flawed.”
So, the only significant issues to determine are if the University had reason to suppose Dr Mann’s studies were flawed and if the University revealed that suspicion when citing the work of Dr Mann as evidence to support a grant application.
The significant point is whether or not the university had reason to suspect the work was flawed. And it does not matter if the work of Dr Mann were suspected of being flawed because it was fraudulent or because it was incompetent or for some other reason.
Richard
What I would like to know is this:
Did Mann/Jones/Briffa/etal. produce/publish/store/turn in/report on the items they promised to produce when they received their grants.
From reading the emails it appears to me that with respect to Jones research one of the following is true:
1. He produced everything that was required. To me, this means that the requirements of his grants were way too low. Especially the ones financed by the US Government using our tax money. He should produce/publish/make public all of his results/data/reports.
2. He did not produce everything that was required. This IS fraud.
If Mr. Mann did produce everything required and fulfilled all of the requirements of his grant that’s great. What we may learn from this is that our government is handing out lots of money without sufficient controls on what the grantees are required to produce. YMMV.
Gail Combs says:
June 21, 2010 at 3:09 am
artwest says:
June 20, 2010 at 8:32 am
BillD: “In general, the sucess of grants is judged by publications and weak performance (few or weak publications) reduces one’s chance with further grant proposals. ”
Let’s assume BillD has only bothered to read what the peer review clique, “Realclimate” had to say about the emails, “nothing here move along”. BillD go read The Assassination of Science There is every reason to believe grant funds were misused, or rather used to generate political propaganda material and not to advance science.
That anyone can put this idea forward with a straight face after the proof of “the team” at least attempting to pervert peer review is astonishing.
Gail:
Most of my info on grants comes from acting as a reviewer, mostly for the National Science Foundation, but also for state foundations and for proposals from other countries (UK, Netherlands, Japan, Russia, Finland and other countries). I have also submitted numerous grant proposals, some of which have been funded. Many agencies only fund 10-15% of proposals which might take a couple of months to research and write. My most recent NSF proposal cited about 200 articles, which I had to read and understand.
Scientists need to work very hard to get grants and chose topics and research programs which are likely to pay off in terms of scientific findings, publications and satisfaction. Reviewers are very critical and are more likely to be unfairly critical of proposals from their closest competitiors or on topics which seem like band wagons. I am not a climate scientists, but I do not believe that climate science is different from other areas of US and world science.
You are right that I don’t pay much attention to email that has been posted without the authors’ permission. Mainly I pay attention to scientific journal articles. I tend to quickly get very skeptical of bloggers who, on purpose or through lack of understanding distort scientific papers.
I’ve explained my position earlier. I think Cuccinelli has the right to have a look-see, but that it would be inadvisable for him to proceed further unless Mann has committed a clear-cut and purely procedural violation. It’s an incredible dangerous slippery slope to start getting the legal system involved in hounding dodgy science, because the standard can be applied selectively, according to political and popular bias.
However, here is something interesting (linked to a few days ago by Climate Depot), from http://tertiumquids.blogspot.com/2010/06/cuccinellis-uva-investigation-yields.html
barry says:
June 21, 2010 at 8:16 am
(…)
MBH 98 was a pioneer study using new statistical techniques.
——-Reply:
Do we know what these “new statistical techniques” even are?
When acting as a reviewer of a scientific paper, I don’t care much about who wrote the paper, whether I like or dislike or don’t know this person. It doesn’t bother me if the paper contradicts my own published studies or not. Mostly I look at the quality of the science and the data analysis and the appropriate interpretation of results and use of the scientific literature. If I don’t really believe the conclusions of a scientific manuscript but cannot find fault with the science and the analysis, I will ususually give it a positive vote, even if it contradicts my own publications. In a fairly long career, I have been a peer reviewer for over 600 manuscripts for at least 31 journals and have also been an editor or subject matter editor for 5 journals and hundreds of additional manuscripts. I am often impressed by the quality of reviews and their contributions to improving the clarity and quality of scientific publications. Occasionally manuscripts are rejected unfairly, but authors can always try a different journal, taking into acccount the input from editors and reviewers. It’s also my opinion that the prominance of American science is based in part on a very competitive allocation of research funds. Unlike other countries, reasearch dollars are allocated largely on the basis of scientific merit, rather than one’s position or name.
Gail Combs says:
June 21, 2010 at 6:12 am
Richard S Courtney says:
June 21, 2010 at 5:06 am
Friends:
There are several errors of logic in the above comments, and I write to point out one of them because it is fundamental to several of the discussions in postings on this thread….
_____________________________________________________
Thank you for pointing this out. If any of Mann’s grants were based on work that had been invalidated by M & M, then after their peer reviewed study of his work was published, the University would be skating on thin ice.
Not meaning to pick on Gail–but do any of you really think that any university is competent to review the research of its professors or that a lawyer with no training in science can judge the scientific validity of Mann’s research or any other scientific publication? The way that science works is that editors select reviewers who are experts on a particular topic.
When a scientific paper is rejected for weaknesses (or insufficient impact) for a specific journal, that hardly means that the paper or the funding was based on fraud. Perhaps the results are not interesting, the data collection or experiment has weaknesses or the writing is poorly crafted. Univesities do not evaluate the technical aspects of their professors’ grant proposals. This is done by grant reviewers and grant agencies.
Often I read scientific studies that I discount because of weaknesses in the data analysis, statistics etc. Poor work only very rarely is due to fraud.
PS: Cuccinelli’s CID has already justified itself by uncovering an attempted cover-up:
That’s what nearly all outsider scientists believe, and it mainly explains why national scientific societies have endorsed warmist science.
But is it true?
The target of Cuccinelli’s CID is Michael Mann.
http://www.scribd.com/doc/30755623/Untitled
The University is instructed to verify the documents, but is not itself under investigation by the terms of the CID.
You, I and others have concluded, contrary to the thrust of the CID, that the buck stops with the university.
I posted my comments about Mann’s alleged fraud in response to the top post, which reiterates the position,
and in response to the many following comments fashioned likewise. If our opinion is correct, allegations of fraud by committed by Mann may be an ‘irrelevance’ WRT the probe, but it is clearly not irrelevant to Cuccinelli, Steve Mosher and a good number of the people replying in this thread.
PS: Cuccinelli’s CID has already justified itself by uncovering an attempted cover-up:
Hell of a crystal ball you have. Why, then, did the university not delete the emails in the back up server. Why did they even admit they discovered it?
Seems to be no distance between allegation and conviction for some people.
Even though I am not a climate scientist, I have reviewed a number ecological studies on the impacts of climate warming on ecological communities. These are not studies about predicted changes, but rather, articles about populations changes over the last 20-40 years. I am the first to admit that such studies don’t say anything about the cause of climate warming, only that the changes in temperature and strong enough too significantly effect many populations and ecosystems. I don’t have the interest or expertise to critique much of the physics modeling. I feel fairly well qualified to evaluate and understand much of the proxy work, including statistical analysis.
After reading maybe 80-100 of the mainline journal articles on climate change published in the past 10 years, I feel comfortable with most of the analysis and conclusions. It’s important to look at serious criticism, but I don’t see the point in reading criticism from people who feel free to twist and distort the conclusions of a paper or to put it down without having carfully read the introduction, methods, results discussion and conclusions. I wonder how many people have read Mann’s more recent Nature paper, that included 9 pages of supplementary data and made an effort to overcome the criticisms of the earlier studies. A web site called “skeptical Science” has a list of 104 arguments against ACW with one or many scientific articles that debunk each of the 104 reasons. Perhaps some of these 104 arguments have validity, but anyone who wants to make a case against ACW should read over these articles, just to be sure.
BillD,
Sounds like you mean well, but when you say, “…anyone who wants to make a case against ACW should read over these articles, just to be sure,” doesn’t understand how the scientific method – or the corrupt climate peer review process – works.
You see, scientific skeptics have nothing to prove [and the alarmist blog calling itself “skeptical” wouldn’t know scientific skepticism if it bit ’em on the ankle].
According to the Scientific Method, it is the purveyors of AGW [in truth: CAGW] who must make their case. They have failed. Even planet Earth herself is falsifying their catastrophic AGW globaloney: as CO2 rises, temperatures are not rising as the the models insist they should. In fact, there is no credible evidence showing that the increase in temperature over the past couple of centuries is anything other than recovery from the LIA. No one has falsified the hypothesis that the temperature rise and the CO2 rise is anything but coincidental.
The central problem is that the purveyors of this CAGW scam adamantly refuse to allow other scientists to test their data and methods. Their unscientific message: “Trust us.” Sorry, no can do. They need to open the books – completely – or expect the public to look at them like they have plenty to hide.
The day the insufferably incompetent Michael Mann of Hokey Stick fame opens his taxpayer-paid books, wake me. Until then, IMO he is defrauding the public that paid for his work product.
OK, I shouldn’t have used the word coverup without being surer. Maybe it was something else–inadvertence, laziness, or carelessness–that was behind UVA’s prior denial of having his e-mails.
But OTOH it’s not reasonable to conclude that if they had knowingly denied it to Penn State, they’d have been consistent and done the same to an attorney general. That would be equivalent to lying under oath. It’s well known that lawyers make damn sure their clients don’t do that, even if it involves contradicting their prior assertions. (White House aides’ fear of committing perjury is what unraveled Watergate, for instance.) Changing ones tune under oath is therefore suspicious.
So I’d keep an open mind on what accounted for their initial denials. Until Cuccinelli’s (effective) subpoena, UVA had “plausible deniability.” They were under no requirement to have a formal search made of their backup files, so they could offhandedly say, “We don’t have ’em” without formally checking, even though they knew or suspected better. Once their IT team had located the backed up e-mails, or even once their IT people knew from press accounts that Cuccinelli had requested them, UVA had no choice but to fess up. So they might have been “playing dumb” initially, hoping they could get away with it.
I repeat, though, that this probe should go no further than being a probe. If “incorrect” science were to come under the purview of the legal system, only PC science would survive.
PS: Make that:
“Changing ones tune once under oath is therefore suspicious.”
barry:
Thankyou for your comments at June 21, 2010 at 6:33 pm.
Yes, you are right in your literal interpretation of what the AG is doing.
I said;
“Firstly, Dr Mann is not being investigated by the AG: the university is.”
And, as you have pointed out (with quotation to prove your point);
“The University is instructed to verify the documents, but is not itself under investigation by the terms of the CID.”
However, we seem to be in some agreement because you immediately follow that statement by saying;
“You, I and others have concluded, contrary to the thrust of the CID, that the buck stops with the university”.
Before responding, I think I should point out that I am not a lawyer and all my comments here are on the basis of logic. Law is not always logical and, therefore, a lawyer may be able to refute what I am saying (although I doubt it).
You assert;
“If our opinion is correct, allegations of fraud by committed by Mann may be an ‘irrelevance’ WRT the probe, but it is clearly not irrelevant to Cuccinelli, Steve Mosher and a good number of the people replying in this thread.”
I do not think it matters what is considered significant to “Cuccinelli, Steve Mosher and a good number of the people replying in this thread.” The only point of significance is whether or not a fraud has been committed according to the law.
As I said;
“However, as I said in my post at June 21, 2010 at 5:06 am :
“It would also be true that fraud was committed if
(a) the results of past studies were cited by the University as evidence in support a claim to obtain grant monies for further research at the University,
and
(b) the University had reason to suppose the past studies were flawed
but
(c) the University did not reveal to the potential funding agency that the University had reason to suppose the past studies were flawed.”
So, the only significant issues to determine are if the University had reason to suppose Dr Mann’s studies were flawed and if the University revealed that suspicion when citing the work of Dr Mann as evidence to support a grant application.
The significant point is whether or not the university had reason to suspect the work was flawed. And it does not matter if the work of Dr Mann were suspected of being flawed because it was fraudulent or because it was incompetent or for some other reason. ”
So, in my view the only questions to be resolved by the investigation of the AG are these three.
Did the University make a grant proposal that cited the work of Dr Mann?
At the time of any such grant proposal, did the University have a reason to suspect that the work of Dr Mann was flawed?
Did the grant proposal mention that suspicion?
Richard
andrew adams says:
June 21, 2010 at 12:15 am
mpaul,
I stand corrected over the opinion of the ICO, but the fact remains that if an offence was committed under the UK FOI act (and a prima facie case is not the same as hard evidence) it was commited by UEA, not U-Va or anyone employed by U-Va.
And now you stand corrected over prima facie. http://en.wikipedia.org/wiki/Prima_facie . Unless rebutted, the evidence is sufficient for a prosecution to be obtained. That actually goes a little bit beyond hard evidence. The CRU has made no attempt to rebut the evidence, just relying on the six-month limitation to avoid prosecution.