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
Why is this process so disturbingly like Calvinball? For rules see http://www.bartel.org/calvinball/
The Unofficial Official Rules of Calvinball
Permanent Rule: You may not play the Calvinball the same way twice.
Primary Rule: The following rules are subject to be changed, amended, or deleted by any player(s) involved. These rules are not required, nor necessary to play Calvinball.
1.0. The following words in these rules are mostly freely interchangeable, the Primary Rule applies:
Can
May
Must
Shall
Should
Will
Would
(Cont)
None of you peons have any say. None. Get back in line.
I understand Mr. Schnare is quite appropriately upset at the decision at trial, however, I do not accept that my opinion expressed earlier constitutes an ad hominem attack against Mr. Schnare personally. I did not name him in my comments and my reference to counsel was generic.
Mr. Schnare is correct; I have not read his pleadings in the file. My opinion, as stated, was based on a quick read of the decision. No doubt further refinement of my opinion would follow upon a more in depth review. From my perspective as a foreign observer, there are several things in this decision of legal interest to me, irrespective of the emotional impact of the decision. I am not a lawyer; I enforce a number of federal statutes in my own jurisdiction and therefore have considerable interest in legal definitions, particularly when the same phraseology acquires different meanings in different statutes within the same compendium of law.
As to Mr. Schnare’s last comment, I won’t acquiesce to the taunt of a schoolyard bully on an internet forum. Where I come from, that comment may form the basis of a prosecutable threat.
Adverse court decisions are always personal to those who have to suffer them, especially when the counsel is as personally engaged as Mr. Schnare is. Hopefully good judgment, logic and reason can follow once the emotions have settled, and effective next steps can be crafted through this legal quagmire.
Paul Coppin says:
April 17, 2014 at 8:06 am
On a quick read through and without looking at the referenced cases, I note two things: ATI probably argued the case badly, and the ruling is a cautious ruling.
Paul gives them far too much benefit of the doubt. As Mark Steyn correctly stated today, this was a heavily political decision.
As Larry Geary says:
Who would have imagined politicians in robes supporting politicians in lab coats?
That is exactly what happened. Ever since that snake in the grass John Roberts called 0bamacare a “tax” and singlehandedly approved it, it is clear that the fix is in. The Judiciary is corrupted.
There is no sugar-coating this. This decision was made by politicians on the take, masquerading as judges. There are always ‘reasons’ that can be found to justify corruption. This sort of undermining of our laws is accelerating. Now it is rule by decree.
Further, judges rule on the Legislature’s intent all the time. It is disingenuous to claim in this instance that the court couldn’t understand the intent. The intent of FOI is that taxpayers should see what they are paying for. In the event, Alan Robertson said it best:
None of you peons have any say. None. Get back in line.
If Paul Coppin has a good argument, he needs to produce it. Making excuses based on “a quick read” is enabling this sort of anti-American behavior. Stop it.
How long before, “Mann exonerated”, in one more investigation of his research?
Phil. says:
April 17, 2014 at 12:40 pm [ … ]
It does not surprise me in the least that Phil. comes down on the side of withholding science from the public that paid for it. Open review by the taxpaying public should be the number one priority, above anything else. But as we know, ‘reasons’ for hiding data and methods can always be fabricated.
Mann is a liar, a coward, a charlatan, and a corrupt scientist. That is my considered opinion, and I stand by it. Any ‘scientist’ who refuses to disclose his methodology and data for more than seventeen years is corrupt. Honest scientists do not do that. Honest scientists do not claim to have won the Nobel prize when they didn’t. Honest scientists follow the Scientific Method, which requires public validation of one’s work in order to verify whether there were errors. That is the only way that science progresses. Otherwise, it is Lysenkoism.
I estimate we’re about three more 1200-page bills from a revolution.
— David Burge (@iowahawkblog) June 25, 2013
So there’s no proof that Mann’s calculations are correct? We just have to take his dubious word for it? Mighty suspicious…
Don’t they have to search for them in order to destroy them? Once collected in a file, there is no more cost to using the “copy” command to duplicate them than there is to use the “delete” command to destroy them.
I note that Mango Chutney replied to “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.
But I didn’t notice Phil. demanding the release of anything. As usual when Phil. is cornered, all we hear are crickets.
Mango Chutney illustrates the big difference between honest scientific skeptics, and apologists for the alarmist clique. apologists. It has to do with integrity.
Freedom Dies one ruling at a time. Either wake up and refuse to be sheep led to the slaughter at the hands of the totalitarians or fall in line!
Every cloud has a silver lining?
Mann’s nature and his deceit are clear for all to understand.
The fact that this decision is bad does not detract from the fact that Mann is frightened to show his work. Thus his work is meaningless just as his trickery to hide the decline.
What’s he got to hide?
You’d think that if Mann “et al” really believed the doom and gloom being preached they would be eager to put the data out there so as to prove their case and save us all.
Why would an egotist refuse to open himself up to all the accolades from a grateful world?….unless….
To the mods or Anthony: I don’t appreciate David Schnare’s open threat to me and my family being quietly edited from his post and his subsequent partial retraction removed without an indication of a redaction to the posts. Sober second thought is not routinely offered to posters on this forum and the edit ability disappeared as fast as it appeared. We all say things from time to time we regret once we hit the post button. Life doesn’t always offer a redo…
[What evidence of quiet editing? Mod]
“Judges” are as biased as anyone else. Lately they just uphold the current culture to “get along”. Don’t hold your breath for any courageous decisions.
***
Phil. says:
April 17, 2014 at 11:30 am
Would you apply this to Ross McKitrick (Steve McIntyre’s collaborator) who hides behind Canadian FOI law to avoid providing his data?
***
Go ask at ClimateAudit. I’m sure Steve McIntyre or Ross McKitrick would grace you w/a response.
“[What evidence of quiet editing? Mod]” Really? Are we now going to have to screencap everything here too?
Will they actually begin destroying the emails already? or is there further delaying action possible? The longer it is delayed, the greater chance there is of final release. But if they’re destroyed, obviously not….
Paul Coppen, thank you for good posts.
I am disappointed, but that’s the way the law reads.
Theo Goodwin: 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.
Maybe yes, maybe no, but that isn’t the way state and federal laws are worded now. The laws have been publicly debated for decades now, and your view was voiced. The majority of legislators disagree with you.
David Schnare: 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.
I appreciate your rebuttal and I shall follow the story.
One question: We hear the phrase “chilling effect” all the time. Does it generally have to be supported by some or many facts?
dbstealey says:
April 17, 2014 at 4:26 pm
Phil. says:
April 17, 2014 at 12:40 pm [ … ]
It does not surprise me in the least that Phil. comes down on the side of withholding science from the public that paid for it.
And where exactly did I do that?
dbstealey says:
April 17, 2014 at 8:15 pm
I note that Mango Chutney replied to “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.
But I didn’t notice Phil. demanding the release of anything.
Like you haven’t demanded that McKitrick stop his hypocrisy of making FOI demands of others knowing that he can hide behind the FOI laws which apply to him! Note that Mango thinks that McKitrick should release only that work that is funded by the University of Guelph but Mann should release data from non university sources. Conditions applied to grants from government entities such as NOAA and NSF usually require that the investigators submit their data to the granting body, why not ask them for the data?
With regard to MBH 98, Mann wasn’t even the PI of the study, he was just a grad student, why not ask Bradley for the data?
As usual when Phil. is cornered, all we hear are crickets.
Who’s cornered? Just because you can’t understand what you read, doesn’t mean that I should jump to your or Mango’s tune. When McKitrick and McIntyre release their data/email I’d have more sympathy for their demands.
Disclaimer: Please remind any elite hackers whom you may know that, while it may be tempting to demonstrate skill and achieve fame, albeit anonymously, breaking into UVA’s servers, hard-drives, etc. to retrieve emails is highly illegal and punishable under law. The excuse that you did it for the good of mankind, truth and justice will fall on deaf ears. You will go to the crowbar hotel. Nothing on this forum should be construed as condoning or recommending any such illegal act.
Phil. says:
[snip] With regard to MBH 98, Mann wasn’t even the PI of the study, he was just a grad student, why not ask Bradley for the data?
Anyone who works in and understands academia knows that it is always the first author who has primary responsibility for a paper. First author handles any press inquiries, requests for data, whatever.
I find it amazing that after 12 years of Mann being the primary focus of the critiques of MBH98 that some moron comes along now and suggests that people have been contacting the wrong person all along.
Dr C says:
April 18, 2014 at 8:28 pm
Phil. says:
[snip] With regard to MBH 98, Mann wasn’t even the PI of the study, he was just a grad student, why not ask Bradley for the data?
Anyone who works in and understands academia knows that it is always the first author who has primary responsibility for a paper. First author handles any press inquiries, requests for data, whatever.
As one who has worked in academia for several decades I know that it is frequently not the first author who has primary responsibility for the paper! The more usual practice is to have the grad. student as the first author and the advisor as the last. Looking at the latest issue of Nature, which separately indicates who the corresponding author is, the last author is always the corresponding author. Different journals have different policies (Science apparently has a similar policy) but it is absolutely not true to say:
“it is always the first author who has primary responsibility for a paper.”
I find it amazing that after 12 years of Mann being the primary focus of the critiques of MBH98 that some moron comes along now and suggests that people have been contacting the wrong person all along.
If you want information about a paper you do ask the corresponding author, if you want information regarding the results of a grant supported research study you ask the PI not a grad student! Several posters here, such as Mango, have said that the results of publicly funded research should be accessible to FOI requests, for that you would go to the PIs not grad. students. I find it amazing that you would think otherwise.