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:
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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.
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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.
OMG!
Thanks JD on the finer legal point…I guess this still has some way to go. Damn!
Robert M: at 10.35pm
Re the virtual shredders and reformatted hard drives – if this is so the perpetrators need to be very careful. The modern information trails leave their DNA everywhere – it would be very hard to eliminate all evidence and copies of an exchange of information. It will only take one missed shredding to be found and the whole blanket will unravel. The Federal investigation that inevitably follows such an obvious obstruction of justice and probably conspiracy would add orders of magnitude of hurt to the perpetrators. I think even Mann and his mates would not take that path.
I can accept that some of the “info” may not be usefully or desirably sidplayed in public; so I will wait and see.
The real benefit
We have all been talking about the information itself. But there is something far more important than past communications … it is how the climategate team will talk to each other in the future.
They have been living in a fairytale world under the mistaken belief that they are above the law, in the sense that they are only answerable to other members of the team and not to the standards set by any wider audience. This has allowed them to indulge in speculation, half truths, a world where it really was possible to believe “hiding the decline” and manipulation of peer review was not only entirely acceptable but “good”.
You can only get that type of perspective in an isolated group with little of no oversight from outside.
It doesn’t matter if anything is found in this Virginia disclosure. In a sense it doesn’t matter if they have “lost” the smoking gun … because that smoking gun is now useless because they can never use it again for fear of being exposed.
But, more importantly, they will be continually looking over their shoulder trying to second guess how their actions will appear “if exposed”. That cannot act in any other way than to continually force them to assess their actions by the widest acceptable standards and not just by their introverted “everything goes” standards of the team.
This will do what we expected the climategate inquiries to do which singularly failed to materialise. It will impose real scientific discipline on a group of rogue “scientists” who have abused the name of science to spread their malicious hysteria. No, doubt the imposition of real standards by “public review” in place of their failed “peer review”, will tip the balance of power away from the charlatan publicity seekers like Mann and Hansen and toward those who espouse real scientific value like speaking from the evidence (not making the evidence fit what you would like to say).
Jay Curtis says: May 25, 2011 at 2:28 am
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.
This is definitely a prudent approach, as discovery is often a far reaching/encompassing process and in this case ATI’s attorneys should get to see everything, even Mann’s personal emails.
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.
However, we diverge here. People need and deserve the right to a degree of privacy. Sometimes it is impractical not to use company email for personal communications, e.g. your child is ill and your spouse is trying to reach you whereever you are by emailing your work email. In such circumstances, our public employees should have confidence that their personal, non-relevant information will not be shared with the public due to an FOI.
OK once you open the door, that sheds light on what is there, what is not, and even if something is exempt as argued, then the contents have been seen, discussed, argued, and a ruling made on the document. That also means that even if exempt, there is nothing to stop them being produced at say a congressional hearing, or to be produced under supoena for additional discovery purposes.
I’m rather hoping there are unexplained gaps in the information. Gaps indicating significant documents have been “shredded” would most probably give good reason for searching forensic examination.
Tampering with records, if proven, would cause more damage to the credibility of the “tamperers” than the deleted documents most likely. So lets see how it goes!!
I agree with this. There is probably nothing in the UVA emails. The university may have been fighting this over principle.
Alexander Feht says:
May 24, 2011 at 10:48 pm
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.
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Not likely
ATI may already have some copies of what they are asking for, and if the known list does not match what is supplied by UVA………………………..
My hunch is that these documents will uncover suggestions of sloppy record keeping, and in some cases, lost records. These documents may also lead one to wonder if poor scientific methods were used. However, FOI requests for these additional documents referred to in this new release will eventually end up thus: they will be declared lost and the University will have a stain on its reputation for conducting science in a way decidedly not as it should be conducted.
I really, really appreciate the hard work being performed here to get the truth into the public eye. I applaud this breakthrough and wait for the final outcomes with great expectations. I really hope it puts the Mann papers in the right perspective and provide us with a clear view on the ongoing conspiracy of scientific misrepresentation of the true state of our climate providing us with the legal means to end the green political doctrine of power and money grabs at the costs of the consumer and the tax payer.
A great opening! But when courts are involved, I do not count on common sense to prevail.
I’ll reserve judgement on this until we start to see why the University of Virginia and Michael Mann have been so desperate to keep under wraps. If only the UofV had been so determined to preserve the academic privileges of Pat Michaels, this might have had a different result.
Now, the big question is the honesty and loyalty of the court.
As Matthew W. points out, being dishonest with the court can have some nasty consequences. If it is shown to be concealing documents known to be in its possession, UVA could piss off a judge…if that judge isn’t owned by the university….and THAT is a HUGE potential problem!!!
At least one judge so far has had to recuse himself in the case of Terri Patraw at the University of Nevada, Reno because of associations with UNR’s legal team and misc. friendships with the administration.
I’d strongly recommend to Steve M. et al to look into the background of the judge to see if he’s a big donor, or if there are other allegiances which could taint the process.
Otherwise, I’d look at this as a good thing. At least there’s a spotlight on it!
It takes a long time for these new light bulbs to shed light but they get there.
None of this would be happening if they had done honest work in the first place. And no one would care if the consequences of the work were not so great.
Looks bad for Virginia If they find documents that allude to other documents that have been shredded, the destruction of documents can become sticky. Fighting the court orders also looks bad for the school.
My two cents on it is: even if all the data shows Mann was pure as the wind driven snow on all aspects of his research conduct, the precedence needs to be set that public funded research is the property of the public (perhaps with a national security exemption – wouldn’t want nuclear designs propagating everywhere). Governments need to be prodded out of the idea that what they do “for the public good” can ever be a secret from the people. Their can be no “some animals more equal than others” in a free and open society.
Because UVA is a public institution, it is perfectly legitimate to put reasoned political pressure on it to do what is proper. Mann advocates the spending of trillions of dollars to remake the world’s economy. Anyone who mixes that political goal with science has to expect that his work for a public university on matters of great public interest will be public. Additionally, it is reasonable to check his work for evidence of bias.
I would expect that there are political advocacy groups at UVAs law school (such as the National Lawyer’s Guild) or in the general University itself that have argued that corporations working for or with the state should be required to be transparent. I would also expect that these same groups might be taking exactly the opposite position now. So I would check what has happened in Virginia (am aware of Pat Michaels case) and maybe the discovery of double standards will shame some CO2 advocates and will provide a convincing basis for members of the public to force the UVA to do the right thing and become transparent.
I would also add that the consent order is mostly an agreement to privately exchange information. It states: “Nothing in this Order shall be construed to effect an abrogation,waiver or limitation of any kind on the right of the Respondent to assert any applicable authorization to exclude the public records from disclosure.” So at this stage, the parties have not agreed to anything that is significantly substantive.
JD
I don’t know a great deal about much of the science discussed at the site. Certainly less than I’d like to. But I do know a great deal about litigation discovery. This means UVA has 120 days to turn over all requested documents and make any claims of privilege or exemption to “claw back” any produced documents. All their arguments about media, recoverability, cost, undue burden, etc. have already been made – and rejected. They now have a hard, court ordered, deadline. No more evasion. The documents and priv logs must be in the possession of the plaintiff and/or court 120 days hence. Period.
It seems likely to me that the delay/obstruct tactics by the university in this case were motivated by knee-jerk reactions all universities take when trying to protect sources of research funding. Somehow I doubt the university has spent much time investigating their exposure on this at all, and in fact have at this point increased their exposure with delay tactics. I suspect if the university were ever told that no more federal funding were coming until it fully complies with the requirements of law, they would throw Mann to the wolves.
imho
I believe all weather/climate information world wide should be made public to enable everybody the chance to ask questions, add data and maybe find the truth and a way to prepare for our future.
This information was gained by our tax dollars and placed in the university’s computers, therefore it belongs to the people.
Mann has no right to enter into secret deals with tax dollars paying the bills. Therefore he has no right to hide or keep secret any information.
The information must be made public including any secret deal info that’s there.
If it’s in the taxpayers computers, if it relates to weather or this climate change debate in any way, shape or form …..it belongs to the public.
I cannot in any way imagine a government or people who would stand in the way except for their private gain.
Ignore – following comments
My concern is how much editing, purging, etc. has gone on since the first FOI request. Will there be an unexplained Watergate gap?
The Virginia Freedom of Information Act has many exemptions, (http://www.opengovva.org/virginias-foia-the-law) and I have not read the University’s briefs. There may be good grounds for exemption of some of the documents. Let’s let the judge do his/her job before we bring out the tar and feathers.