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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It’s about time the big money lawyers were brought in to get them, eh? These people should have no shred of privacy, or freedom.
Agree with JD. The court’s order about filing under seal is a very common procedure in certain sensitive situations or circumstances where further review is needed to determine whether it should be filed with the court as publicly available.
Policyguy says:
May 24, 2011 at 8:36 pm
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.
I’d be surprised if Mann had any lawyers working on it, why would you suppose that he had? Judging by the ATI’s webpage they seem to have some strange ideas about what material they will receive. For example they think that Mann published the ‘Hockey Stick’ paper while at UVA, and that the graph disappeared from the IPCC reports.
The fact that two liberal groups (People for the American Way and the ACLU) tried to block the FOI request confirms that AGW is largely a political and not a scientific issue. I was really surprised however that the ACLU would attempt to quash our civil liberties by blocking the release of information that should be available to the public. It indicates that there is likely something in the information that could put the first nail in the coffin of AGW. Let’s hope so. We have enough real problems and don’t need a fabricated one.
91 days from now would be a good time for Mikey Mann to start his summer vacation, somewhere deep, deep in the woods where there is no cell phone coverage. Otherwise, he’s gonna have some `splainin to do!
Wondering aloud.. Assuming a lot..
If Mann had a side business (many academics do get paid for consulting, speaking, book writing..) then he and UVA might not want to disclose those activities if it would point out that UVA haven’t supervised the Chinese Wall that is supposed to separate academia and for profit activities. Since Mann is no longer at UVA, they could have thrown him under the bus long ago with a timely FOI response. Assuming there is a bus they don’t want to catch or go under.
Academic Freedom doesn’t apply to commercial activities of their staff. That (assumed) mismanagement of their researchers’ commercial activity is what UVA doesn’t want to show. IMO. Assuming a lot.
In the political fight against AGW, there is probably nothing there in the UVA documents & emails that we don’t already know. What the ruling really means is the Virginia universities are subject their state’s (commonwealth of Va.) laws. Penn State will be holding executive meetings.
Thanks for the legal perspective, JD! This is good news and (hopefully!) will yield a more detailed look into a small man(n)’s participation in climate change fraud.
Now is the time to follow a phillipino aphorism:
“Softly….Softly….Catchy Monkey!”
Anthony,
Those readers interested in some of the history and details of fact
proffered in court that led to the UVa/ATI consent decree can
review the “Verified Petition for Mandamus and Injunctive Relief”
filed May 15, 2011, by the American Tradition Institute with the
Prince William County Circuit Court.
The 19 page “Petition” in PDF format can be found here:
http://www.atinstitute.org/wp-content/uploads/2011/05/ATI_v_UVA_FOIA_First_Petition_final_5-15-11.pdf
I feel that there is no way Mann and Co. will hand over anything damaging. They will be madly running the “virtual” shredders over there attempting to cover their tracks. The only question really is, how well will they cover those tracks, and how much will investigators be able to piece together exactly what is missing…
I agree and I retract my earlier bread and butter statement.
Nothing will happen. We are not going to see any of the incriminating records.
Shredders are buzzing in the University of Virginia, and disk drives are being re-formatted.
The court gave the Respondent more than enough time to destroy the evidence (if it hasn’t been destroyed already).
This is good news.
Discovery can be a very far reaching process since material referred to in non privileged documentationn becomes disclosable. If in that material, further material is referred to then that further material becomes disclosable etc. There can be quite a long and extending paper chase.
The Order to me sounds pragmatic and fair. Whilst I am not an Expert in Virginia State Law, it sounds to me that the Order effectively works as follows:
Anything that UVA accepts is not privileged is released (within the 90 day period) openly to the other side. Anything over which UVA claims privilege will be identified and will then be reviewed in private with the other party in effect being able to argue that this or that document is not properly privileged. At this stage UVA may accept what the other side says about its non privileged status (and in which case the relevant document will then be released openly), or if the parties cannot at that stage agree on the status, the issue wilol no doubt be referred to the Court for a formal ruling on privilege. If that happens and the Court holds that a document is not privileged, it will then be formally released on open basis.
Whilst ATI cannot strictly use knowledge obtained from the in camera review, human nature being as it is, this may lead to independent investigations and enquiries which may in turn unearth some of the privileged material.
The real issue is what are the effective grounds for claiming privileg over any piece of documentation
Paul Westhaver said @ur momisugly May 24, 2011 at 6:44 pm
“The Vatican’s action in 1600 towards Galileo was nothing compared to UVA hostility to truth and the general scientific community.”
OK, I’ll bite. What action in 1600 did the Vatican take towards Galileo? It was the year his daughter Virginia was born (out of wedlock).
This is going to be explosive! Either there is a good reason why they spent an awful lot of money trying to hide information …. or they spent an awful lot of money trying to hide information from sceptics (but not greenpeace) for no good reason.
Is this “90 days” or “90 working days” or “90 days excluding weekends, holidays, days the secretary is away, days when its not convenient to work as the sun is shining”?
For info … I noticed the google ad was:-
Your FREE report on how easy it is to profit from carbon offsets.
So I clicked on it. I just love the thought that their advertising is helping to fund your site!
I have a question. Is it possible for the university to just leave out ( erase ) any inconvenient e-mails, eventually by erasing them ?
@Robert M
I wouldn’t be so certain that virtual shredding is the inevitable consequence: it’s one thing to passively keep your mouth shut and quite another to engage in an active deceit.
Eliminating evidence of this kind involves a few people, and many of those will want to play with a straight bat for good reasons and / or be unwilling to take risk to cover for someone else – why should they?
And email exchanges involve at least two parties – there’s a risk of something coming to light through another means and that would involve a lot of explaining and repercussions.
The process of law in Virginia is grinding on. I know nothing of the mysteries of Virginia law, but JD’s interpretation gives me the impression that the negotiations between the UVA and the AG have born fruit and progress will now be made toward establishing whether criminal acts took place, or not. But I am constantly amazed at the effrontery of those organisations who have attempted to confuse the possible misuse of what ultinately comes from tax revenue with ‘academic freedom’.
Well, I was under the impression that a FOI request got you the information you requested not a delay to enable the regime in question to hide, destroy, alter or whatever the object of the FOI request.
Obviously the law in the US is as ‘flexible’ as that in the UK.
SSam above said Virginia was corrupt. No–what we see here is that corruption is being fought, by Attorney General Cuccinelli and his staff. UVA is obviously governed by Political Correctness and the Correct Party Line, and will go to any feasible length to conceal Mann’s transgressions with public money; but the state is not corrupt. It is being as well governed as I have yet seen, and I have been living in Virginia since 1981. Cuccinelli really is acting for the public good, as he sees it, and UVA is clearly and totally in the wrong on this issue, as fine an institution as it is in many ways.
To: Just the Facts:
>>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.<<
Hmmm. I certainly don't know anything about Virginia law. However, I have an email account which is supplied to me by a public agency with whom I contract independently here in Colorado. I use that email account to communicate with other professionals within the agency about our work. It was explained to me long ago that NO email exchanges made on that account could ever be considered private under ANY circumstances as it could potentially be viewed by anyone. I keep my private life and work separate from my work at the agency and that rule is applied to my email.
Heck. This is information gathered and paid for with public money, sent over publicly owned servers, presumably during time payed for with public money, etc., etc. The information belongs to the public. If something was sent of a private nature that someone didn't want made public, TOO BAD. All this "in camera review" stuff seems unnecessary and indefensible.
Political support for global warming has been draining away at an astonishing rate since the double whammy of Climategate and the recession. As any racketeer can tell you, once you lose your political protection, Rikers Island comes into view.
Pointman
I am not sure that people should get too excited.
The probability is that within the emails that the UVA release, there is no smoking gun. One of the issues raised will be whether it is possible to see whether the disclosure is full and complete and if not how to pursue what appears to be missing documents.
I think that before crowing too loudly one shoud wait and see. Scottish Sceptic has a point that if it transpires that there is nothing in the emails then questions arise as to why UVA spent so much money digging their heels in. As regards the 90 day point (whilst not an expert on Virginian law), this is presumably 90 calendar days, ie., simply running days.
Cecil Coupe says:
May 24, 2011 at 10:03 pm
What the ruling really means is the Virginia universities are subject their state’s (commonwealth of Va.) laws.
Do you suppose that they apply to GMU too? Somebody should ask for all Wegman’s emails concerning his report to Congress, perhaps then we can find out what McIntyre’s contribution to it was.
Just a thought, if there are any e-mails that they do not mind releasing do you think they would release them without going through the “in camera” procedure?
I think no, I think they will try and release the whole lot together to make the job of untangling them harder. But as there is no reason not to release them, then why not?