Updated: 8:30PM PST, statement from ATI received via email, see below. – Anthony
BREAKING:
Steve McIntyre sends word that University of Virgina has been ordered to produce the Mann emails and documents sought by the lawsuit from the America Tradition Institute (ATI). Only one little hitch. Get a load of this excerpt from the court consent order:
“All Exempt Information contained or discussed in any pleading, motion, exhibit, or other paper filed with the Court shall be filed under seal.”
Steve writes:
==============================================================
A consent order was entered into today in respect to FOI requests to the University of Virginia under Virginia FOI legislation from the American Tradition Institute. The order in case CL-11-3236 dated May 24, 2011 stated:
it is therefore ADJUDGED ORDERED and DECREED as follows: The Respondent [UVA] shall complete its supply of requested documents no later than 90 days after the date of this order and will supply them in electronic form.
As I understand the order, information claimed to be Exempt Information will be filed under seal and, after examination of the Exempt Information, the Parties have an opportunity for in camera review.
===========================================================
For those not familiar with the legal language, in camera means:
In camera (Latin: “in a chamber”) is a legal term meaning “in private“.It is also sometimes termed in chambers or in curia.
In camera describes court cases (or portions thereof) that the public and press are not admitted to.In camera is the opposite of trial in open court where all the parties and witnesses testify in a public courtroom, and attorneys make their arguments in public to the trier of fact.
UPDATE: First impressions about “sealed” may be wrong. Apparently, there is another way to look at this. Sealed documents may not be the permanent situation, just the initial one, to give a chance for both parties to get a handle on some information that may need to be withheld for a valid reason. Reader JD writes:
Anthony, I am a lawyer in Ohio and a climate realist. (don’t claim to be an expert in Virginia law, but from a general perspective as a lawyer, I think I see the gist here) I see this order as being a decent preliminary step forward in transparency. Apparently, the court has indicated that it is rejecting blanket exemptions by UVA. To save time, the court is telling the parties to see how much they can agree is subject to disclosure. Following the UVA’s almost certain claim that some of the information requested is exempt, the court will initially have the claimed exempt materials reviewed in private (in camera).
This is only logical because if some information is to be truly exempt (for instance, the names of informants, potentially in criminal cases), the only way to give meaning to the exemption is to have some sort of private review. When the court rules on the virtually inevitable exemption claims of UVA, then we will have a good idea of whether justice and common sense will be achieved. At this point in time, the court is merely following a sensible preliminary procedure.
STATEMENT FROM ATI:
Statement:
http://www.atinstitute.org/court-orders-university-of-virginia-to/
Chris Horner writes:
In short, the University was forced to part ways from supporting the PFAW/ACLU/AAAS/AAUP demands and Mann’s interests, and start working to make itself look less bad to a court. Beginning by agreeing to let us see it all — ‘it’ being the records as described in the AG’s CID — and begin the process of identifying what within that ‘all’ it was going to fight over and why. See attached.
So we get it all, and electronically, including the coded material oddly delivered in printed form when mailed to us last week.*
They must isolate and declare what they declare exempt and we’ll present what of that that’s withheld, that we want released, to the judge to decide whether it is rightly exempt under a specific FOIA exemption. What isn’t stamped is ours at that time w/o further fight. It is the University’s burden to argue that what they’ve claimed an exemption for must not be released, i.e., be returned to them.
*On Friday, with a hearing looming, they turned over a stack of records, apparently hurriedly produced, after we filed suit on Monday, with enough having become enough. Although a few decent items slipped through, inter alia affirming that ClimateGate appeared on its face to be, at least a couple of respects, they clearly turned over as much chaff as they could scrape together from the review they had largely been avoiding undertaking in the first place (pages and pages of ads in email threads, and the like) to show volume if not actual cooperation. But that era is over.
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The breadth and depth of the political inroads into everyday life should not be underestimated
The establisment rules !!!
This implies there is information contained within these emails that they wish to hide from public view.
Now I can understand this if there are communications contained within that are more to do with “business”-related activities which might be considered as being “important to be kept confidential”.
But what I don’t understand is, if the research was funded by public money, why can’t the public then see HOW this money has been distributed and used.
Some Fear Facts.
Others search for Facts.
It is just that clear.
Demand Searches.
There is only one reason for this. UVA does not want the emails released via WUWT’s website. Wouldn’t want the truth in wide distribution!!!
The Vatican’s action in 1600 towards Galileo was nothing compared to UVA hostility to truth and the general scientific community. I have a message for the neanderthals at UVA, “yet it moves”.
Sounds to me like a judge that knows which side of his bread has the butter.
amazing hubris 🙁
Ya gotta learn…Ya don’t mess widh da Mann!
Could a FOIA request be made some time in the future, for those documents, after all the investigations are complete?
Failing that, if there were to be a trial based on information contained within the documents, then surely all the dirty laundry will come out eventually?
Is it possible to read this in another way?
Judge to UVA: Enough! Deliver the documents within 90 days.. Anything you think is exempted will be reviewed by this court and if it still exempted, it will be available in camera. Anything that fails exemption will be released as per FOI.
It would be hard for climate science to sink any farther than it already has but I think they’ve done it again. Wow.
They have something to hide. I smell gun smoke.
Anthony, I am a lawyer in Ohio and a climate realist. (don’t claim to be an expert in Virginia law, but from a general perspective as a lawyer, I think I see the gist here) I see this order as being a decent preliminary step forward in transparency. Apparently, the court has indicated that it is rejecting blanket exemptions by UVA. To save time, the court is telling the parties to see how much they can agree is subject to disclosure. Following the UVA’s almost certain claim that some of the information requested is exempt, the court will initially have the claimed exempt materials reviewed in private (in camera).
This is only logical because if some information is to be truly exempt (for instance, the names of informants, potentially in criminal cases), the only way to give meaning to the exemption is to have some sort of private review. When the court rules on the virtually inevitable exemption claims of UVA, then we will have a good idea of whether justice and common sense will be achieved. At this point in time, the court is merely following a sensible preliminary procedure.
JD
They just buried FOI under a mountain of legal mumbo-jumbo.
That alone will throw a truckload of jet fuel on every conspiracy theory out there, as well as engender contempt and disbelief at every turn.
crosspatch says:
May 24, 2011 at 6:45 pm
Sounds to me like a judge that knows which side of his bread has the butter.
———————————————————
I wouldn’t be so harsh on the judge. Their legal team probably made a very formidable argument that this information getting all over the internet would prejudice a jury from both sides of the debate*.
(* formerly known as “the debate that is over”.)
Also, I think it would be interesting to hear from our resident lawyers about this. Would it not be true that attorneys who read the sealed documents can still call in witnesses and question them on what they read in them at depositions and on the stand, as long as there was no breach of intellectual property, which in this case would not apply ??
Sorry, even at the risk of prejudicing a jury, I couldn’t resist this. I think it should be called TheDebateIsOver.jpg
http://www.ucar.edu/news/releases/2009/images/Fig.final_11.jpg
I think this order is being misinterpreted. It states that:
“The Respondent may designate as Exempt Information any requested public
record.”
“”Exempt Information” means any requested public records the Respondent has not disclosed under authority of the Act, including any laws or constitutional provisions that apply to those public records.””
“Within 30 days after the date on which Respondent supplies Disclosed Information, the Respondent shall provide the Petitioners’ counsel designated pursuant to Paragraph (C) (3), above, copies of all Exempt Information in a form to be agreed upon between the parties.”
“The Petitioners shall have 90 days after receipt of the Exempt Information to review it, negotiate with the Respondents, and, if they choose, file a petition with the Court for in camera review for determination as to whether the Respondent properly designated the records as Exempt Information as defined herein.”
Based on my reading of this, it is standard and reasonable, i.e. Respondent has to produce everything and provide it all to the Petitioners, however Respondent has the right to mark documents that they don’t think should be subject to the FOI as Exempt Information. The Petitioners then have 90 days to review the Exempt Information, negotiate with Respondent and if they can’t agree whether a certain document is subject to the FOI, Petitioners can “petition with the Court for in camera review for determination as to whether the Respondent properly designated the records as Exempt Information.”
This is reasonable, as we are going to get to see all the tree ring studies, as they are not Exempt Information, and even if UVA marks them as Exempt Information, the Petitioners can review them with the judge and get the exemption overruled. However, we are not going to get to see the email that Micheal sent to his wife, doctor, etc. having nothing to do with tree ring studies, and this is the way it should be.
Yet another reason why I will never return to the “commonwealth” of “Virginia.
Corruption runs deep there.
Now I know why I turned down acceptance to UVa in 1968 and went to VMI instead, graduated with a Civil Engineering degree and became a Marine.
Step one: Get the documents archived out of UVA’s possession
Step two: Review the documents for continuity, to ascertain if any destruction of evidence has taken place
Step three: Content analysis – exemptions, privacy, etc.
Step four: Comply with law and release documents
Step five: ?
JD Ohio says:
May 24, 2011 at 7:23 pm
What you are saying makes good sense. Let us all have the patience to see how this thing unfolds.
JD is right. Nothing evil going on here. There do seem to be some broad exemptions in VA FOIA law and some will be undoubtedly claimed. This is probably the fairest way to resolved any disputes.
Note that a consent decree means that both parties have agreed to the terms. This is a negotiated settlement.
LOL. Methinks “In camera,” in this instance is equivalent to “Watergate files.” LOL, again. Instantly, the phrase “Kinetic Military Action” came to mind.
This “breach of belief” (for wont of a better phrase) is happening on many fronts right now in the world. It is very worrisome, indeed!
I’ve updated the body of the post to include JD’s take on it. Legalspeak often needs an interpreter, and I think he did a good job of interpreting what really the need for sealed documents is for.
Two other observations.
Firstly, to the power of WUWT, within an hour and 15 minutes of this article going up 5 readers had offered countervailing perspectives and the article was updated. Echo chamber my ass…
Secondly, given that this order exists, it is likely that Disclosed Information has either been produced or is forthcoming in the coming days. Per a May 16th press release from the American Tradition Institute:
“More than one month ago, on April 6, 2011, the University informed us in writing that it expected to begin producing responsive records ‘shortly,’” said Christopher Horner, the senior director of litigation for ATI’s Environmental Law Center. “Then came a pressure campaign in which groups including People for the American Way and ACLU sought political intervention in the process. On May 2, 2011, UVA promised they would send some documents three days later. As of May 13, 2011, ATI had not received a single document under their request.”
http://www.atinstitute.org/ati-law-center-asks-court-to-dislodge-university-of-virginia-%E2%80%98climategate%E2%80%99-and-other-documents-that-pertain-to-climate-scientist-michael-mann/
Today’s order states that, “Within 30 days after the date on which Respondent supplies Disclosed Information, the Respondent shall provide the Petitioners’ counsel designated pursuant to Paragraph (C) (3), above, copies of all Exempt Information in a form to be agreed upon between the parties.” Judges are not known for their patience, thus “the date on which Respondent supplies Disclosed Information” is likely quite near…
Couldn’t someone just break in and copy the stuff onto an FTP site? Or is this another inside job?
Thanks Anthony,
I think you are right about JD’s comment, and would like to point out, as Rattus has mentioned, this is a consent decree. This is a negotiated settlement of one of the most significant issues in the case i.e. what record exists at UV regarding the information underlying this case. Assuming Mann has some of the highest paid attorney’s in the US on his case, why would they settle on this point if they did not see fundamental weaknesses in their argument of privileged information.
The information is coming out. This agreement describes the procedure, including mutual check points, by which the judge will ultimately decide what information is truly subject to privilege.
We should also keep in mind that there have been several arguments put forth by these folk about why certain information is privileged because of private agreeements pertaining to the rights of the collectors of the data sets. I suspect that that issue is still on the table, but will now be subject to judicial review.