Yes, Virginia, there is an FOIA

Guest Post by Willis Eschenbach

A judge has ordered the University of Virginia to release Professor Michael Mann’s emails pursuant to a Freedom of Information Act (FOIA) request. Mann is the climatologist who developed of the “Hockeystick” graph, which became the icon of the IPCC climate alarmism … until it was shown to be what Dr. Richard Muller of the Berkeley Earth Surface Temperature [BEST] project called “an artifact of bad mathematics”. Mann claimed that the ring widths of a few trees in the US Southwest somehow revealed the temperature history of the planet. Seems extremely doubtful. Mann also features in the Climategate scandal as (inter alia) the scientist who (at a minimum) forwarded a request to illegally destroy emails that showed Mann and other scientists conspiring to subvert the IPCC process.

Me, I’m opposed to going the legal route to solve scientific problems. I’d like to think that scientific disputes could be settled between scientists. I have a very deep aversion to what in my childhood was known as “calling the law on a man.” I grew up in the old tradition of the American West, which held (and for me still holds) that calling the law should be the last resort, when all other methods have failed.

However, in this case, all other methods have failed. Professor Mann is famous for saying that asking him to reveal his data is “intimidation”. Even a Congressional committee hardly dented him. And the climate science community is famous for never, ever, ever saying anything negative about another climate scientist. Bad form to speak ill of someone’s work or actions, don’cha know, they might return the favor. And given those two facts, I fear that the legal route is the only one open for those who want to find out what Mann did while on the Virginia taxpayers’ dime. However, taking this route immediately raised a veritable poolpah of claims that this is invading Mann’s privacy, or that it is treading on Mann’s intellectual rights, or inimical to his scientific freedom, or other claims along those lines.

For me, the issue in this case is very simple. It is generally spelled out in the Employee’s Manual of almost any large organization, institution, or business. It says that while you are working for your employer, your time is not your own. What you write is not your own. What you produce is not your own. What you patent is not your own. What you email is not your own. What you discover is not your own. None of what you produce on company time belongs to you.

It belongs to whoever is paying you. Period. It’s that way for the majority of employees of virtually every large concern, and has been for many years.

So all of the squawking about “privacy” and “intellectual rights” and “private emails” is nonsense. If Michael Mann wants his emails to be private, he should be self-employed. If he works for a business, those emails are the property of the business. And if he works for the taxpayer, if the taxpayer is funding his work, then nothing done on “company time”, none of his work and none of his emails and none of his data or his computer code, are “private” or “personal” or “his intellectual property”. They are, as the court ordered, subject to Freedom of Information Act requests.

Mann, however, has found a curious ally in this fight, as reported in the “Old Virginia Watchdog“, which says:

ATI [the organization that brought the suit] hailed the decision as a victory for transparency, but there are concerns in the academic world that such measures could threaten the scientific community.

The faculty at UVA issued a statement the day of the ruling to that effect. Mann also has found an unlikely ally in University of California Berkeley physicist Richard A. Muller, who famously denounced the hockey stick graph as “an artifact of poor mathematics.”

“We need some degree of privacy,” Muller said Thursday in an exclusive interview with Old Dominion Watchdog. “Scientists alone should decide how and what to publish in their results, looking at private files in a public setting is an unfair standard.”

Whoa, whoa, whoa, Dr. Muller. If this was Court TV, I’d expect the lawyer to say “Assumes facts not in evidence”.

Who said anything about whether or not scientists should “decide how and what to publish”? As far as I know, no one has told Mann, or threatened to tell him, what or when to publish. Dr. Muller is falsely casting the issue as one of “prior restraint on publication”. He is wrongly claiming that someone is trying to decide what Mann can publish, which is a very serious charge with First Amendment implications.

Where is the evidence for that, for prior restraint? The FOIA request is nothing of the sort. It is a request for emails from six years ago and older. How Dr. Muller got from a request for six-year-old emails, to his claim of prior restraint or conditions on publication, is difficult to understand without drawing perhaps unwarranted conclusions.

The article continues:

Muller said he believes that public oversight could interfere with the scientific process and sees the FOIA request as an “indirect attempt to shut down Mann’s scientific work.”

If Mann ever gets around to actually doing some scientific work, as opposed to churning out endless attempts to justify his “artifact of bad mathematics”, I suppose that someone might try to shut him down. But that’s just a fantasy about an improbable future.

More to the point, again Muller is spinning this as being about the future, when it is about the past. People want and have a right to know exactly what transpired between Mann and his partners in “crimate” (the intersection of climate and crime). It’s not about trying to shut down Mann’s future work. The Climategate emails pulled back the curtain on a host of very ugly, anti-scientific, and possibly criminal actions. Mann was shown to be up to his neck in them, and the taxpayers have a right to know just what he did and didn’t do while they were paying his salary. Has nothing to do with an “indirect attempt” to do anything. We want to know what he did.

“I may disagree with his scientific analysis, but I object to him coming under public inquiry,” [Muller] said, invoking Voltaire.

Voltaire is famous for saying (but it seems never actually said)

I disapprove of what you say, but I will defend to the death your right to say it.

Voltaire didn’t mention public scrutiny, however. Nor did Voltaire mention trying to evade responsibility. Mann’s work is one of the cornerstones of the AGW movement, which aims to restructure the economy of the entire planet … and Dr. Muller doesn’t think that every aspect of Mann’s work that was paid for by the taxpayer should receive the closest scrutiny possible? Why is that?

I do not know why Muller doesn’t want people to look into Mann’s past, but he’s definitely concerned about it. Perhaps he is concerned that people might look into his own past actions, I don’t know. Maybe it’s just paranoia, the university variant of the fear of the MIB coming to spy on them. Whatever it is, it is important enough for Muller to invent a claim that the issue is prior restraint, which is very odd regarding a request for old emails. In any case, the article continues:

Muller said he is glad the emails came to light, but feels the “ends — snooping in on private conversations — do not justify the means.”

What is it with these guys and their idea of “it’s mine, mine, mine, you can’t see it!”. Those are NOT PRIVATE CONVERSATIONS, Dr. Muller. They are part of the work product of Dr. Mann’s paid employment. They are the property of the University of Virginia, they were paid for by the Virginia taxpayer, and (as the Court has ruled) they are subject to inspection by private citizens. Why is that so hard to grasp? Heck, I can paraphrase Voltaire myself, try this:

“I may disagree with Mann’s scientific analysis, but I will defend to the death the public’s right to see what he has done.”

The article goes on to say:

ATI’s request is separate from the investigation launched last year by Attorney General Ken Cuccinelli, who battled the university for similar documents in 2010 in the hopes of prosecuting Mann.

As I said above, I don’t like the legal route, particularly the Cuccinelli route. But the other so-called scientific safeguards have failed, leaving little option.

Muller stands by his rival even more stridently in that case.

“A public reprimand is unnecessary,” he said. “Their reputations in the science community have already suffered; that is the most appropriate punishment.”

That is patent nonsense. Mann is still feted and lauded, his papers are still accepted without the kind of suspicion appropriate to his past deceptions. Phil Jones is still churning along in his job. Trenberth is agitating to try to reverse the null hypothesis. The idea that the reputations of Mann and the other the Climategate conspirators have suffered is absolutely untrue.

But even if their reputations had suffered, Mann and the Climategaters are still leading the charge to impoverish the world and restructure the global economy, and Dr. Muller wants to make the claim that Mann should not face responsibility for his (perhaps criminal) actions because his reputation has supposedly suffered?

My goodness, a suffering reputation. Does it hurt a lot when that happens? Those university professors must be the real sensitive types. See, outside the ivy halls when someone does the things that Mann and the Climategate folks did, they can’t just whine “I’m an oppressed scientist and my reputation hurts already!” and expect to walk away scot free.

Beyond the ivory tower, people who deceive and subvert and collude end up hurting in more than their reputations. So I fear that Dr. Muller’s elitist claim, that the most appropriate punishment is to spank them across their academic reputations (and besides they’ve already been spanked enough), just reveals how truly distant the mainstream climate scientists are from the real world.

Mann and the other Climategate participants have never taken responsibility, much less apologized, for their actions. They have stage-managed the so-called “Investigations” so well that nothing at all was investigated. Yes, the investigation found nothing in Mann’s emails … because the investigators didn’t even look at the emails. In addition, not only did Mann never answer the important questions about the emails, he was never even asked about the emails. That’s not an investigation, that’s a joke.

And now Dr. Muller wants us to just forget about it and move on, because he thinks that the poor scientist babbies have suffered enough …

Suffered enough? They haven’t suffered at all, Dr. Muller. So far they have denied responsibility entirely. They have skated completely, to the applause of their co-conspirators and well-wishers, and go around proclaiming their innocence. And Dr. Muller, now you want to pat them on the head and say poor oppressed scientists, your reputations have suffered enough, go and sin no more?

I’m sorry, that’s not going to happen.

Given what we know, that Mann and others stand convicted by their own words for some actions spelled out in the Climategate emails, and that there is very strong circumstantial evidence of him and the others having done a variety of other unethical or perhaps illegal things, the reputations of Mann and the rest of the Climategate crowd have not suffered nearly enough. In this Climategate list I include any actual criminals, as well as the lesser malfeasants, corrupters, and data manipulators; those who looked the other way as others manipulated the IPCC results; those who aided and abetted them to do things like pack the peer review panels and intimidate editors; those who conducted sham “investigations” and covered up the egregious actions; and those who merely cheered them on in their dirty fight.

If this had happened in a business setting, where their loss in reputation would truly be commensurate with their actions, after the things that they have done few of the whole crew would be either employed or employable.

w.