Statement/Update on ATI v. UVa/Mann

From The American Tradition Institute – September 18th, 2012

Yesterday the American Tradition Institute (ATI) participated in more than four hours of oral argument in the Prince William County Circuit Court, in its effort to have faculty emails which were paid for by the taxpayer, in pursuit of taxpayer funded employment, declared public records, declared subject to the Virginia Freedom of Information Act (VFOIA) and released under that Act. The trial-court level judge ruled from the bench, siding with ATI on the first two questions, with theUniversityofVirginiaon the third, while rejecting the arguments of intervenor Michael Mann. ATI’s comments on this development are as follow.

ATI sought to provide the supposedly missing “context” to the Climategate scandal that, all are told, would explain away as non-problematic the revelations of “hide the decline”, “Mike’s Nature (Magazine) trick,” “recruiting” journalists to go after opponents, have journal editors dismissed and challengers suffer professionally.

The parties insisting that this missing context would clear Climategate up as being nothing at all opposed release of this missing context. Regardless, ATI has succeeded in obtaining hundreds of records from other state schools and government agencies, including several hundred of Mann’s emails while at UVa. The University of Arizona, employer of two lead players in Climategate including one of the co-authors of the infamous “Hockey Stick”, has also produced an index of email records a professor has refused to turn over, laying out a helpful chronology of the mysterious, supposedly exculpating but secret-at-all-costs “context.”

The Virginia court came down in agreement with ATI on the threshold questions: the university is indeed covered by VFOIA, as is the department at issue, as are those very records ATI seeks. The judge rejected all arguments by Intervenor Michael Mann whose intervention, the Court said from the bench, unnecessarily complicated matters, and without impact.

The Court then stated that, under VFOIA’s exemption 4 for “proprietary” information, so long as the discussions somehow reflect discussion about research among academics — even ‘hide the decline’ — they may be withheld or disposed of so long or however the university sees fit.

The court did not accept any “academic freedom” or First Amendment arguments. Its ruling was purely grounded in the meaning of the term ‘proprietary’ in the Virginia statute, and the reading of that provision the Court suggests means that public universities can hide from the taxpayer even what the Telegraph’s Christopher Booker called ‘the greatest scientific scandal of our generation’.

ATI is troubled by this implication, as should be all Virginia taxpayers and supporters of transparency in government, science and public policy.

The transcript should emerge soon. This alone delineates what the Court did and did not say, as there will be no written opinion (the Court made clear this was due to the flood of ancillary if ultimately irrelevant issues raised by outside parties). It should guide assertions about the ruling and its meaning. It will be useful for considering ATI’s options for appeal and other requests for emails among the located UVa records, but also other next steps because the Court’s language provided a roadmap going forward for, among other things:

• it reflected judicial disdain for, and flat, serial and often stern cautions against the global warming industry’s preferred tactic of argumentum ad hominem;
• it recognized that many local, state and federal policies have flowed from the work at the center of Climategate (and ATI’s request);
• the Court seemed to acknowledge and sanction release of emails under, e.g., ATI’s requests seeking correspondence between academics and media, which recent requests have already revealed close coordination between activist academics and reporters, a practice reflected in Mann’s Climategate email;
• the Court also seemed somewhat unnerved by what it learned about Mann’s behavior in pursuit of what the Court also quoted as “the cause”, also noting more than once that Mann made clear he knew his emails might get out.

However, the offense at, and the many, clearly deeply seated rebukes to Mann’s regrettable tactics, and rejection of the taxpayer-dependent establishments’ rhetorical hand-waving does not for now make that substantive conclusion — in Virginia, the school is free to do what it wishes, including about ‘tricks to hide the decline’, etc. — much sweeter for the Virginia taxpayer.

ATI will review the transcript and work with the University on the order to conclude the best course for appeal of a seemingly broad reading ofVirginia’s exemption 4, and how its specifics fit with the court’s acknowledgement that all exceptions must be narrowly interpreted.

Until that is concluded, and/or any other requests for records in the discovered Mann cache (for example, such emails as those to, from or mentioning the PR firm Fenton Communications, to reflect Mann’s relationship with the Washington operation coordinating the advocacy of a group of activist academics and other government employees, along with the Union of Concerned Scientists), the school cannot destroy the records.

And then, they can. Possibly in the interim voices inVirginia will address this now that the court has stated what the law of transparency and disclosure is in the Commonwealth.