ATI Statement on Results from Today’s Hearing in Freedom of Information Act Case Against U. of Virginia
FOR IMMEDIATE RELEASE
Friday, September 16, 2011
Contact: Paul Chesser, paul.chesser@atinstitute.org
Today in Prince William County court Judge Gaylord Finch delayed arguments and the scheduled production of documents in American Tradition Institute’s Freedom of Information Act lawsuit against the University of Virginia. A brief hearing was held to discuss a Motion to Intervene in the case by lawyers for former UVA professor Michael Mann, whose records that were created while employed there are what ATI seeks. Judge Finch, recognizing the important precedent-setting potential of the case, said he wanted to schedule a longer hearing — two hours — to hear arguments about whether to allow Dr. Mann, now at Pennsylvania State University, to enter the case.
Judge Finch granted ATI a sur reply in the case, which allows ATI Environmental Law Center director David Schnare to place additional materials before the court as Judge Finch considers whether to allow Dr. Mann to intervene. The two-hour hearing is scheduled for Nov. 1.
Statement by ATI Environmental Law Center director Dr. David Schnare about today’s developments:
“If it wasn’t clear before, it should now be clear to everybody. This is an extremely important case, and we appreciate Judge Finch’s careful attention to detail as we proceed.”
See case documents, press releases, media coverage, commentary, broadcast interviews, etc. pertaining to ATI v. University of Virginia by clicking here: http://bit.ly/mLZLXC
h/t to Bob Ferguson
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For a man who stands by what he said, he fights awfully hard to prevent people from finding out what he said.
@Latitude,
re re-writing the law.
The VFOIA already has certain exclusions in it that could (emphasis on could) preclude release of those items that fall within each exclusion. As I understand the case, and Mann’s motion to intervene, UVa agreed to provide items of Mann’s that are within an exclusion. While I’m no fan of Michael Mann, he should have an opportunity to prevent such excluded items from being handed over. Without leave to intervene, he is powerless to prevent that from occurring.
As to the Constitutional aspect and Free Speech, yes, this very well could result in the Supreme Court carving out another exception to the existing list pertaining to Free Speech. The existing limitations on Free Speech include but are not limited to Defamation, Obscenity, Clear and Present Danger, Inciting Rebellion, Fighting Words, False and Misleading Advertising, and Presidential Threats. Each of these was created after balancing the good to the speaker who utters the speech against the harm to society if such speech were allowed. The Court clearly concluded that the harm to society would be greater than the good to the speaker in each case.
With that background, it is conceivable that the Supreme Court could conclude that academics’ need for freedom to conduct research, teach students, write and publish, engage in scholarly dialogue, and other activities inherent in the academic world would be limited if a law such as VFOIA were to allow public disclosure of the correspondence at question in this case. The harm to the academics could be a reluctance to pursue research into controversial topics, for example.
No one knows how this will turn out, but it appears to me that Mann’s attorneys are on fairly weak ground because they cited a case, Sweezy v New Hampshire, from 1957. The age of that case alone indicates there is not much case law on point, that is, that supports their argument. Most of the academic freedom cases decided by the Supreme Court had to do with things like subject material for class lectures, qualifications to be a professor or teacher – especially political leanings, qualifications of students to be admitted or denied admittance, etc.
However, this is a long, long way from being before the Supreme Court. The Court hears a very small percentage of all cases brought to it. Many times, even if an issue is one the Court would like to hear and decide, it will be denied certioari simply because the particular case does not satisfy the Court as to the facts that occurred. The Court will wait until a better, stronger case is brought before it.
Roger Sowell says:
September 16, 2011 at 5:59 pm
I repeat my earlier comment on an earlier thread:
http://wattsupwiththat.com/2011/09/06/mann-hires-attorneys-to-halt-foia-document-production/#comment-737917
This request to intervene by Dr. Mann has much more substance than at first appears. His attorneys are invoking a First Amendment right of professors to have academic freedom. The attorneys quoted a 1957 Supreme Court case, Sweezy v. New Hampshire (354 U.S. 234, 250) where the Court wrote, “To impose any straight jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. . . Teachers and students must always remain free to inquire, to study, and to evaluate.”
Mann also claims that UVa has agreed to hand over emails that it knows are exempt from such disclosure under Virginia’s Freedom of Information Act. Mann wants to halt that. ”
I’m not a lawyer however i did study law and the argument of “First Amendment” is just meaningless for the most part. He can invoke the the first amendment when it comes to things NOT covered under the FOIA act in private matters and have an argument. Such as saying UVA is going to purposely give away private non-FOIA email however the court is already supposed to be reviewing the case in that matter so unless his argument is the court is willfully conspiring to violate Virginia’s FOIA laws he’s got nothing… add in he wouldn’t be filing that type of respond in that court he would goto another court to demand that a different judge hear the case.
The other issue is that the court case you site is basically the very basis for FOIA in science to begin with… how can you counter an argument that blacks aren’t human or jews belong in ovens if you can’t get the data, freely inquire, study and evaluate the matter.
FOIA was designed to PREVENT groups from straight jacketing intellectual leaders and others.
What an outrage! This is not science. This is some kind of foolishness unrelated to the joy of discovery. I no longer am interested in the contents of these emails. The die is cast, CAGW is junk science. Let the lawyers feast on the dead carcass.
Please…oh PUHLEEZE tell me that the two hour hearing will allow witnesses to be called?
ATI: You honor, we would like to call a witness, but he is refusing to appear. We’d like you to issue an order compelling him to appear.
Judge: So this is a hostile witness?
ATI: Yes your honor.
Judge: What is the relevance of this witness?
ATI: He is one of the most respected and widely quoted climate scientists in the world. He was acclaimed as chairman of the prestigious wedex science committee by acclamation. His opinion on climate matters is so highly respected that the Editor-In-Chief of an academic journal resigned and apologized to him just for letting a paper that disagreed with his artificial computer models be published. This is THE climate scientist of all time.
Judge: I do not understand why you would want him to appear. You are claiming that he is the highest possible authority on climate, and that he is hostile to your case….
ATI: The witness was recently quoted in an academic journal as follows…”Moreover, the description of their method was incomplete, making it impossible to fully reproduce their analysis. Such reproducibility and openness should be a benchmark of any serious study.” We’d like him, as the world’s leading climate scientist, to comment on Michael Mann’s work and attempted suppression of the data and communications in our FOI request.
Judge: Well, that makes some sense. I’ll consider the order. What is this gentleman’s name?
ATI: Kevin Trenberth, your honor. That’s with a “T”, as in “Travesty”.
Dr. Michael Mann is the Reggie Jackson of Climate pseudo-Science–there’s not enough mustard in the world to cover that hotdog.
Roger Sowell says:
“The existing limitations on Free Speech include but are not limited to Defamation, Obscenity, Clear and Present Danger, Inciting Rebellion, Fighting Words, False and Misleading Advertising, and Presidential Threats. Each of these was created after balancing the good to the speaker who utters the speech against the harm to society if such speech were allowed. The Court clearly concluded that the harm to society would be greater than the good to the speaker in each case.”
Yes, but each of those examples were already covered by existing law. Slowly but surely, the 1st Amendment [and the entire Bill of Rights] is being undermined by fallible judges. By not adhering to the original Constitution, we are headed straight for a dictatorship, and that is not a ‘conspiracy theory’.
Bob Diaz asks:
“Do all scientists hide their data OR only the ones that have ‘hidden the decline’?”
Answer: Michael Mann deliberately and mendaciously hid contrary proxies that debunked his MBH98 paper in an ftp file labeled “Censored“. If that [much better, and more extensive] data had been used, there would never have been a “hockey stick” chart – and Mann’s subsequently debunked conclusions would have been negated. Mann fraudulently eliminated the MWP and the LIA, and he blatantly cherry-picked only selected data to acheive his desired result. [IMHO, of course; prove me wrong.]
@temp on September 16, 2011 at 8:15 pm
re “the argument of “First Amendment” is just meaningless for the most part”
Actually, the Supreme Court has decided a number of cases on First Amendment Free Speech grounds over the decades, each pertaining to some aspect of academic freedom. I mentioned the topics in my earlier comment. Sweezy is but one such case.
Mann is making yet another argument, and that is that the emails and other correspondence to be turned over have not yet been vetted. That is, it has not yet been determined if an exclusion applies to each one. Normally, such items are reviewed by the attorneys for both sides, with the attorneys sworn not to divulge what they see to their clients. Where the attorneys cannot agree, then the judge rules on the disputed documents.
In this case, ATI’s lawyers are also de-facto principals at ATI. Mann objects (through his attorneys) that allowing ATI’s lawyers to see the emails is tantamount to showing them to all of ATI. ATI may have made a tactical error in this case by not hiring outside counsel to represent them.
Roger Sowell says:
September 16, 2011 at 8:11 pm
“…As to the Constitutional aspect and Free Speech, yes, this very well could result in the Supreme Court carving out another exception to the existing list pertaining to Free Speech…”
Wouldn’t Mann still be in breach of the conditions of his employment? Essentially liable for breech of contract by refusing to follow the guidelines of his employment? Isn’t his lawsuit simply an attempt to bypass those conditions?
I am not knowledgeable regarding computer or server backup technology, so maybe somebody with expertise can help me out. Can these delays be an attempt to buy time in order to alter, delete or otherwise hide incriminating emails? How difficult would this be from a technical aspect, or is it impossible?
So much secrecy around MBH98 makes it alchemy instead of Science. Making a ‘golden’ hockey stick out such leaden data is certainly a form of magic.
Hiding evidence is proving the opposite.
@Smokey on September 16, 2011 at 8:40 pm
“Yes, but each of those examples were already covered by existing law.”
Yes, that is the way the Free Speech Clause is slowly fleshed out, and has its limits defined. Some of those areas had long-existing common law, that is, judge-made law from ancient England. When the government – federal or state – passed statutes prohibiting something such as defamation, for example, a lawsuit was brought that challenged the statute as violating the Free Speech Clause of the First Amendment. As we all know, the Court upheld the statute. In the case of Defamation, the Court also added some conditions in the landmark case of New York Times v Sullivan.
In this case, the existing law is VFOIA. It may, but is by no means certain, that the Constitutionality of some aspects of VFOIA will be heard and considered by the Supreme Court. I believe that this is at least one of Mann’s goals.
“Slowly but surely, the 1st Amendment [and the entire Bill of Rights] is being undermined by fallible judges. By not adhering to the original Constitution, we are headed straight for a dictatorship, and that is not a ‘conspiracy theory’.”
The First Amendment and the rest of the Bill of Rights is a very complicated body of law, and I’m not sure I agree that it is being undermined by activist (my word, not yours of course) judges. The Takings Clause in the Fifth Amendment was certainly hammered recently, though, in Kelo v City of New London. But, the Miranda warnings, part of the Fourth Amendment jurisprudence, were strengthened. There are long arguments over these issues.
I would like to see fewer activist judges creating law, and instead have the Constitution changed by the amendment process as was intended by the Framers.
@SSam at September 16, 2011 at 9:44 pm
“Wouldn’t Mann still be in breach of the conditions of his employment? Essentially liable for breech of contract by refusing to follow the guidelines of his employment? Isn’t his lawsuit simply an attempt to bypass those conditions?”
Well, I haven’t seen Mann’s employment contract, but generally, a contract cannot over-ride a state law. Otherwise, for example, it would be easy to form a contract to hire someone to dump toxic chemicals, or break some other law. So, even if Mann agreed in his contract to have all his professional work be subject to the University’s discretion as to being revealed to the public, the VFOIA would invalidate that part of the contract. Therefore, Mann would not be in breach of contract because those parts of the contract are unenforceable.
This actually occurs fairly often, where a contract contains clauses that are void or unenforceable in a court. This is why it is critical to retain an attorney to review a contract. Many, many times the attorneys for one party draft a contract with unenforceable provisions or even illegal provisions, in the hopes that an un-knowledgeable other party will not know this. The party without an attorney generally assumes the contract must be “legal” and he must abide by all of its terms. This can be detrimental to the party without an attorney. There are more than a dozen ways to “get out of” a contract, that is, legally not perform under the terms of the contract.
It seems Michael ‘Hockey Stick’ Mann is indeed squealing like a stuck pig, as I said a few months ago. ‘Banjo Time’ draws near….
BTdubs, love the judge’s first name – if only his surname was Clinch instead of Finch, it’d be up there with matey off of Meet The Fokkers.
Smokey says:
September 16, 2011 at 8:40 pm
Spot On, My Friend!
Roger Sowell says:
September 16, 2011 at 9:32 pm
@temp on September 16, 2011 at 8:15 pm
re “the argument of “First Amendment” is just meaningless for the most part”
Actually, the Supreme Court has decided a number of cases on First Amendment Free Speech grounds over the decades, each pertaining to some aspect of academic freedom. I mentioned the topics in my earlier comment. Sweezy is but one such case.”
Expect current case law is overwhelmingly clear that they must be turned over… it would be one thing if this was the very first FOIA filed in context however it is not even close.
“Mann is making yet another argument, and that is that the emails and other correspondence to be turned over have not yet been vetted. That is, it has not yet been determined if an exclusion applies to each one. Normally, such items are reviewed by the attorneys for both sides, with the attorneys sworn not to divulge what they see to their clients. Where the attorneys cannot agree, then the judge rules on the disputed documents. ”
Thats not much of an argument because they are already covered under a gag order so he is basically arguing they will breach it if given the info… Plus the fact theirs an issuing of standing if UVA were arguing that I could see the merit of their argument however they aren’t Mann has not legal “excuse” to whine about anything going on.
Also as to the vetting the court is in the process of vetting them thus unless he’s saying the court isn’t working in good faith then once again a meaningless argument.
Mac the Knife says: “Well, it looks like Judge Gaylord Finch may be less than the ‘honorable judge’ he should be… […] Pitchfork rebellion against Judge Finch […] The complaints are coming close to critical mass.”
Truly, America, you are the Wild West… I thought someone told you the farmer and the cowman should be friends?
(I do concede we probably do exactly the same in Australia; but hide it better…and what a wonderful expression: pitchfork rebellion!)
Roger Sowell, thanks for your commentary. It’s good to have some idea what the legal issues really are.
They claim their data is robust and then fight like wildcats to hide it!
Just how long can this situation be allowed to continue?
The great thing is while Mann is wriggling within the legal world he is being kept away from research. Its a win/win situation!
“Chilling effect”. This was the argument of Ward Churchill’s defenders when he was removed from his position for a long list of reasons unrelated to his politics. It didn’t work for him and hopefully, it will not work for Dr. Mann.
The reality, for those of us who have had to sign the document stating our electronic communications should not be expected to be private (I’ve done it at least twice), is we heed our mothers’ warnings to never put anything in writing that we wouldn’t want the entire world to read. If we don’t expect the rules to apply to everyone but ourselves, we tend to be more balanced, factual and to the point in our emails.
It has been my personal experience that some directors and project managers think they are exempt. They are not and are always surprised when they find it out. Why don’t they use their personal computers or cell phones when they wish to have a less formal, private and frank conversation? Because they think the rules don’t apply to them. They are too important to follow rules. I could tell you stories 😛
Well, Ward Churchill’s First Amendment rights are still being argued. This case has been going on since January, 2005 🙁 Sorry for the misinformation.
Ockham says: I am not knowledgeable regarding computer or server backup technology, so maybe somebody with expertise can help me out. Can these delays be an attempt to buy time in order to alter, delete or otherwise hide incriminating emails? How difficult would this be from a technical aspect, or is it impossible?
It’s certainly not impossible. I can imagine technical factors that would make it difficult (whether they actually exist is another question), but the main difficulties would be non-technical: They wouldn’t want the wrong people to know about it or even suspect it, but this might be unavoidable. For example, what if some backups are held offsite by a contracting company?
Notice the warmist crickets chirping on this thread…
Richard Verney,
ATI has already received 3,800 pages of Mannian material underwritten by the tax payer. Instead of posting it immediately online, they informed us that they will review the material and decide whether or not to post any of it on their website.
Will you be leading the call to have ATI release all of the material they have embargoed? What do you think the chances are that anyone here will demand that ATI post all the information immediately, seeing that it is publicly owned?
Is it not strange that although the regulars of WUWT are quite aware ATI is in possession of this material, they are not requesting ATI to post it all, as they suggested they might?
Incredibly, it appears no one here is interested in the actual contents of the emails etc. Why might that be, do you think?