Supreme Court of VA sides with University, secrecy, and Mann. The previously claimed destruction of Mann emails now to begin.
In this appeal, we consider whether the Circuit Court of Prince William County (“trial court”) erred by denying a request for disclosure of certain documents under the Virginia Freedom of Information Act (“VFOIA”), Code § 2.2-3700 et seq., and whether a public body may impose charges for the cost of reviewing documents under the statutory exclusions.1
130934 American Tradition Inst. v. Rector and Visitors 04/17/2014
The circuit court was correct in denying a request for disclosure of certain documents under the Virginia Freedom of Information Act. The purpose of the higher education research exemption under Code § 2.2-3705.4(4) for “information of a proprietary nature” is to avoid competitive harm, not limited to financial matters. The definition of “proprietary” in prior case law, that it is “a right customarily associated with ownership, title, and possession, an interest or a right of one who exercises dominion over a thing or property, of one who manages and controls,” is consistent with that goal and the circuit court did not err in applying that definition. Viewing the facts in the light most favorable to the university that prevailed below, it produced sufficient evidence to meet each of the higher education research exemption’s seven requirements. Also, in the context of the Code § 2.2-3704(F) provision allowing a public entity to make reasonable charges for its actual cost incurred in accessing, duplicating, supplying or searching for requested records, “searching” includes inquiry into whether a disputed document can be released under federal or state law, and this statute permits a public body to charge a reasonable fee for exclusion review. The circuit court’s judgment excluding disputed documents and approving such cost recovery is affirmed, and final judgment is entered in favor of the university.
See the document here: http://www.courts.state.va.us/opinions/opnscvwp/1130934.pdf
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In the Old West during the various gold rushes a hopeful miner would put down a stake to mark his claim. I guess there’s only room for one at the top of the Mann-made pedestal.
Let’s hope that Mr. FOIA has a relative.
By this precedent, the FOIA ceases to exist.
“…provision allowing a public entity to make reasonable charges for its actual cost incurred in accessing, duplicating, supplying or searching for requested records, “searching” includes inquiry into whether a disputed document can be released under federal or state law, and this statute permits a public body to charge a reasonable fee for exclusion review. The circuit court’s judgment excluding disputed documents and approving such cost recovery is affirmed…”
Am I reading this right? It seems to say that not only can the university say “no” to your FOIA request, they can charge you for their time in determining that they can say “no”.
@mstickles its a “freedom of information” act, not a “free information” act. Regardless of whether the information gets released or not, somebody has to copy it, read through it all to expunge “un-named third parties” and other information not specifically material to the FOI request, and decide if it meets a range of criteria for release frequently governed by many statutes including a number of privacy acts. There’s a lot of manpower consumed in these. Its a big job lots of times. I’ve seen our clerks spend days copying banker’s box upon banker’s box loaded with paper, all of which somebody has to sit down and read page by page to “sanitize” for release.
“The US government has cause to be wary here.
If a government funded institution were ever to produce something revolutionary and of significant value the university could claim sole ownership and sell to the highest bidder.”
Nah, can’t happen. Rules today only exist insofar as they are convenient and useful to the Ruling Elite. The instant they become inconvenient for the Ruling Elite, they cease to be Rules.
The four ways to spend money….. http://m.youtube.com/watch?v=5RDMdc5r5z8
Dr. C asks: “My question is about jurisdiction. Can the District court in DC order UVa to cease on its stated intent to destroy these emails? Also, is this the kind of decision that can be appealed to SCOTUS, or is this strictly a VA only issue? (It seems that this decision was based on VA FOIA laws, not Federal laws, or am I mistaken?)”
First, UVA is a third party to the suit between Stein and Mann. If Stein has served them with a subpoena they can not destroy the files until the subpoena is finally adjudicated. Either they produce the documents or they successfully object to production. They can’t delete them until these processes have been completed and their normal document retention policies fulfilled.
Second, I doubt this will get appealed to SCOTUS. I don’t see there being any Constitutional issues involved. I skimmed through the opinion and did not see any Constitutional arguments, it was all State Law and interpretation of State Law.
CB
Trey says:
April 17, 2014 at 7:29 am
Now.. vote to END support for “higher ed” that does not disclose
everything.
Would you apply this to Ross McKitrick (Steve McIntyre’s collaborator) who hides behind Canadian FOI law to avoid providing his data?
I see yet another decision by a “public Authority” that supports my contention; CAGW is an intelligence test.
More fools and bandits exposed for the pleasure of the taxpaying public.
Sooner or later the ever suffering payee for this rubbish will conclude, as government compliance with law is selective, contributions to government will be too.
Voluntary taxes?
Whatever point of law or nuance as to the definition of proprietary, the public owns this institution and the work of all who sponge from their wealth.
No disclosure will equal no tax support.
Kleptocracy will always produce this kind of feedback.
Probably the reason government by thieves for thieves never lasts very long.
M Mann conducts science research!? I thought it to be politcal pandering/lobbying myself.
If a publicly funded body is allowed to withhold data from the public who paid for that data, are the public allowed to calculate their tax, deduct the percentage that goes to public funding of that body, and inform the tax office of their reasons doe withholding?
Nahhhh, thought not, but you should.
@Phil
Any work by McKitrick that is funded by the University of Guelph, should be subject to the same laws as anybody else working in publicly funded positions in Canada or elsewhere in the world where FOIA applies.
Now please demand the release of all Mann’s data under US FOIA
“The competitive issue of public schools vs private schools is an interesting wrinkle. The decision is not a failure of the court to uphold access to publicly funded information, it’s a failure of the state legislature to properly construct statutes with consistent common use terminology.”
Ditto.
CB: But if you take the VA FOIA argument to the extreme, what is there to prevent any State’s individual law from containing so many exclusions that essentially has no FOIA at all?
MangoChutney says:
April 17, 2014 at 12:06 pm
@Phil
“Would you apply this to Ross McKitrick (Steve McIntyre’s collaborator) who hides behind Canadian FOI law to avoid providing his data?”
Any work by McKitrick that is funded by the University of Guelph, should be subject to the same laws as anybody else working in publicly funded positions in Canada or elsewhere in the world where FOIA applies.
But it isn’t! Also the research data that is demanded of Mann was not funded by his university.
It’s hypocritical of McKitrick to organize a mass submission of FOI requests to others when he himself knows that he’s protected against similar requests. See below foe example.
“UNIVERSITY of GUELPH OFFICE OF THE PROVOST
Dear Mr. xxxxxxx,
I write in response to your request which was received by the University on May 3, 2010 under the Freedom of Information and Protection of Privacy Act (FIPPA) for access to the following:
“…copies of all letters written to and received from Stephen McIntyre, Patrick J. Michaels and Anthony Watts for the period of 2002 to current date by Ross McKitrick of the University of Guelph. The information is to include all copies of documents that may be backed up in mail servers.”
Your request for access to the responsive records is denied. The reasons for this decision are outlined below.
Subsection 65(8.1) of FIPPA states that the Act does not apply to “a record respecting or associated with research conducted or proposed by an employee of an educational institution, or by a person associated with an educational institution”. This exclusion is intended to preserve academic freedom and competitiveness; in particular with respect to specific, identifiable research projects that have been conceived by a faculty member of the University. Records identified as responsive to your request are in regard to research being conducted or proposed by the authors, thereby excluding them from the scope of the Act.
Additionally, s.21(1) of the Act requires that the University refuse to disclose personal information to any person other than the individual to whom the information relates. Responsive records that were not respecting or associated with research conducted or proposed by Professor McKitrick were personal in nature; therefore, the University is obliged to protect these records.
In light of these factors, your request for access to responsive records is denied. “
The honorable thing to do in climate science fraud, if there was any honor about.
http://thepluripotent.com/2014/04/16/scientist-apologizes-for-mistakes-in-stem-cell-research/
When I was at PSU I had to list all my sources for a 1 credit paper on estimating the highest wind gusts on the eastern side of of a recurving hurricane ( though the method worked, I was shown the physical reasons so often accepted are not the reasons.. you cant tack on the forward movement of a storm as a tropical cyclone is not a solid sphere rotating through space, but a gas within a a gas. Even today, that argument is nonsense. Wind speed around a recurving storm has to do with alignment of the wind and where enough turbulence from the tropical source forcing can still get the winds down to the surface. Its the reason for why it rains hard with less wind on the northwest side and rains less with more wind on the southwest side of the storms.. as the storms become post tropical the rapid sinking can bring the strong winds down to the surface behind the storm for a time.. while to the east, enough banding can hold on for streaks of powerful winds) Most of the peak wind gusts on the mid atlantic coast of hurricanes passing to the east occur after precip is done and are out of the northwest!) In any case 1) I had to list all my sources, every storm with peak wind gusts on the eastern side ( it was what I was looking at..the other aspects disproving me came later in my career) and B) SUBSEQUENT INFORMATION REVEALED I WAS WRONG.
My point Has it come down to the fact a 1 credit paper would get more scrutiny at PSU than something that has so many other studies to disprove it as Manns idea at UVA? Is that what they are about? It seems to me like its been decided that if the information comes out showing that it can easily be disproved, alot of problems occur, and not only with Dr Mann.. but implications at UVA and PSU. Then there is the little problem of a tax payer funded project that has lead to alot of the missive on agw, being challenged and rebuked. Dr Mann still refuses to answer how so many other studies do not show what he does. He has not answered as to how he knows the medieval warm period was “local” if he can not find a compensating cooler area to balance out the earths temperature! After all if he is telling us that was a local event, where is the counter cooler area to make sure the global temps were as he says? And that no one seems to press him on this matter even on his side of the issue is truly astounding to me. If you are going to tell us the earth s temp was constant, but say there was a warm area, where is the colder area.
And so now we see a situation where basically people that wish to challenge Dr Mann can not even have access to what it is they are challenging him over.
As for me.. I just want to see a nice open minded debate on this. A modern day court of Katherine the Great. Heck even then , scientists would go at it, rather than avoiding it.
America was the land of the free. Over in Australia they ‘fight’ for democracy, they blow the trumpet to fight for democracy in many overseas countries but it depends on whose definition. It is systems based not democracy. Democracy is heavily reliant on truth and transparency.
Paul Coppin’s ad hominem attack on me, lead attorney in the case, demonstrates complete ignorance with regard to the pleadings filed in the case. We will likely ask for a rehearing before the Court at least as to who made the argument that the Court adopted regarding the meaning of “a proprietary interest”. We made the argument the Court adopted and not only did UVA not make the argument, they rejected the argument.
On the independent issue as to whether release of the emails themselves would harm the competitive advantage of the university, the Court simply did not look at the actual emails. Had they done so, they would have found nothing that would cause any competitive harm to UVA in any marketplace. Instead, the Court accepted the fear of a chilling effect, one not supported by any facts, as placing UVA at a competitive disadvantage to private universities. The practical effect of that decision is to write UVA out of the virginia FOIA.
As for Mr. Coppin, I have no polite response to his ad hominem. I have many impolite ones and if he has the guts, he can call me and I’ll be happy to share every one of them with him.
David W. Schnare, Esq. PhD
General Counsel
Energy & Environment Legal Institute
Mann manages to lower the bar for all science originating in Academia to less than zero. The Climate Industrial Complex erupts in cheering.
Not really a blow to “open science.” It’s just a setback to accessing Mann’s e-mails. As far as I can tell, it seems to be a good decision based on Virginia Law. See paragraph 4:
https://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+2.2-3705.4
Mann and his serially bad science notwithstanding, universities have a compelling reason to protect proprietary research. They frequently patent the technology they develop. That’s a good thing.
“Science” has never been as “open” as many would like to think and there’s nothing wrong with that. Some things are better developed through openness and collaboration and others through private research in competition with other groups. There are merits and faults to both and neither is better at avoiding erroneous conclusions. Even the seemingly more open collaborative method produces cliques that ascribe to a specific group think that impedes progress; see for example the current histrionics of so-called climate science.
As for Mann’s strange science, the best takedowns haven’t come from FOI requests. They’ve come from skeptics trying to replicate his research like Ross McKitrick and Steve McIntyre.
David W. Schnare’s remarks are interesting and appreciated. I wonder if the judges took ‘judicial notice’ of commonly known facts behind closed doors without mentioning it in their decision….like, CAGW is an accepted fact. FOI suits like this which hope to poke holes in the science are nothing more than a nuisance and contrary to the public interest and well being. Not that it matters; they were able to rule based on other things.
mstickles says:
April 17, 2014 at 10:32 am
Very funny, Of course, there will be a separate charge to each person making a request even if that request is number 1,000,000 with the exact same wording and the response has been boiler-plate for years.
Lauren R. says:
April 17, 2014 at 2:38 pm
Sorry, but you are engaging in apologetics for the “new” university where the line between university and business gets blurrier and blurrier daily. That institution should not exist. If the research is worth dollars then it should be done through a private corporation. Scientists are extremely good at fund raising. They have no need to depend on the university.
The hicks on the Virginia bench don’t understand that research which is conducted at the expense of and for the benefit of the public may not be withheld from the public.
UVa thrives on federal dollars, which it collects on the supposed grounds of benefiting US citizens. Sue it in federal court and have issued a forthwith injunction to freeze all records.