Guest essay by Jan H. Blits
May a public university manipulate a Freedom of Information (FOIA) request of a faculty member in an effort to squelch the politically incorrect side in the on-going climate wars?
The University of Delaware, which has a long, sorry history of political correctness, seems to think that it may—even if its actions violate the faculty member’s academic freedom, Delaware’s FOIA law, and the University’s own FOIA policy, while the University offers a bogus, incoherent, disingenuous, and arbitrary justification for its actions.
In December, 2009, David Legates, a University of Delaware professor who was the Delaware State Climatologist from 2005 to 2011, received a FOIA request from Greenpeace. Greenpeace sought Legates’ “e-mail correspondence and financial and conflict of interest disclosures” that were “in the possession of or generated by the Office of the Delaware State Climatologist” from January 1, 2000, concerning “global climate change.” Legates is an outspoken critic of the evidence used to show the human effect on climate.
Under Delaware state law, FOIA requests to the University for a faculty member’s academic materials are limited to activities supported by state funding. During Legates’ tenure, the State Climate Office received no state (or University) funding. Nor did Legates receive any state funds for his work as State Climatologist, and the State Climate Office never undertook activities concerning “global climate change.” In short, none of Legates’ work fell within the scope of the FOIA request.
Nevertheless, UD Vice President and General Counsel. Lawrence White, decided that Legates must provide more than Greenpeace had requested. White summarily informed Legates that he was required to submit not only all State Climate Office documents, but all documents in his possession relating to global climate change, whether or not Greenpeace had requested them. White’s expansive list, covering all of Legates’ teaching, research and service materials going back to 2000, included work unrelated to the State Climate Office, whether conducted on Legates’ own time or on University time, through his personal e-mail or his University e-mail, on his personal computer or a University computer, both in hard files and on computer disks. According to White, Legates had no choice. As a faculty member, White instructed him, Legates had to comply with the request of “a senior University official.” It seemed not to matter to White that the Delaware FOIA law limits requests to state-funded activity and UD’s own policy limits it further to research that is state-funded.
The Virginia Supreme Court recently ruled that, despite Virginia’s FOIA law, the University of Virginia was correct in refusing to comply with a FOIA request for the records and e-mails of a former faculty member, Michael Mann, famous (or infamous) for his alarmist “hockey stick” image of the recent rise in global air temperature. The Virginia law had made all UVA faculty members subject to FOIA requests. The Delaware law, in contrast, restricts requests to faculty who are state-funded and to the work they carry out with state funds. (State money accounts for only a small portion of UD’s revenue.) For many years, the University administration has designated some faculty as doing state-funded work, but kept or removed faculty members from the list if administrators believed that they were likely to receive an unwanted FOIA request. For reasons administrators have declined to explain, a small portion of Legates’ teaching salary was, curiously, placed on the list of state-funded activity shortly before Greenpeace filed its FOIA request in 2009.
A month after Greenpeace’s request to Legates, the Competitive Enterprise Institute, an opponent of Greenpeace, filed a nearly identical FOIA request with UD for information on three other Delaware faculty members. These three had contributed to the Intergovernmental Panel on Climate Change, a United Nations group often (and recently) warning of the catastrophic effects of global warning. White, wasting no time, “answered with a short ‘no’” (his words). “[B]ecause the information you seek does not relate to the expenditure of public funds,” he told CEI, “the University respectfully declines your request.” When asked to explain the disparate treatment, White advised Legates that he (Legates) did not understand the law. Shifting ground and muddling his own argument, White said that while the law did not require him to give Greenpeace all the documents he had requested from Legates, the law did not prohibit him from requiring Legates to produce them for White’s own review and for potential release to Greenpeace. Although having no more than the law’s silence to justify his trampling of Legates’ rights, White, once again, ordered Legates to comply. His authority as a “senior University official” evidently trumped Delaware law and University policy. Under pressure, Legates submitted all the demanded materials in March, 2010.
Under Delaware law, FOIA requests must be answered within ten days (unless there is need to consult with an agency counsel), but White did nothing with Legates’ materials for more than 15 months. In June, 2011, he hired a third-year law student to sort through them. “We have interpreted that language [of the Delaware FOIA law] to mean that we are obliged to produce records, otherwise nonprivileged, that pertain to work by Dr. Legates that is supported through grants from state agencies,” White wrote. The law-student’s trolling came up short. The resulting file contained, in its entirety, 1) two e-mail exchanges about federal, not state, funding sources, 2) an invitation from a state agency to give a talk on climate change, for which Legates was not paid, and 3) a report to the Governor and General Assembly on the Delaware Water Supply Coordinating Council, which Legates had no hand in writing and in which he is not mentioned, but which he was simply given when he joined the Council.
White had listed a second category of documents, however, which he said the University was also “obliged” to produce. “[A]nd class-room related work such as syllabi, instructional materials, and class postings, (because a small portion of his salary was paid out of state-appropriated funds).” The file of these teaching documents contained 1) materials from Legates’ introductory course on “Climatic Processes,” 2) two e-mail exchanges with two off-campus professors about climate change and the classroom, and a third about his speaking in a graduate course, 3) his 2010 CV, and 4) his Climatologist agreement and related correspondence with the Governor’s Chief of Staff. Again, contrary to White’s false claim, the University has no obligation to produce teaching materials. Its own FOIA policy excludes requests for such materials. Teaching has always enjoyed the full protection of academic freedom. Administrators may not examine it except for cause. Despite claiming that he was “obliged” to produce the materials, White, unable to square his action with official policy, state law or rules of academic freedom, tried to trivialize it as harmless: “[T]hese materials strike me as innocuous in the extreme, and I propose to turn them over all over the Greenpeace.”
That was not all. White also decided “to produce copies of speeches, papers, presentations and other materials that were created by Professor Legates and subsequently published, delivered in lecture form, or otherwise made public.” Many of these public items were gathered from the internet by the third-year law student. The files included articles by, about and quoting Legates, his U.S. Senate testimonies, an open letter signed by him, schedules and materials from various conferences and workshops in which Legates participated, presentations and posters, etc., produced by others, and more than three thousand pdf files of journal and magazine articles Legates accumulated over the years on topics ranging from climate change and climatology to statistics and numerical analysis. While conceding that the state FOIA does not require the disclosure of public materials and Greenpeace had not requested them, White said that he would “turn them over [to Greenpeace] only because it seems potentially provocative to me NOT to surrender documents that are already in the public domain” (his caps). Never at a loss for a pretext to trample faculty rights, White, having claimed that it was harmless to violate Legates’ rights, now claimed that it would be harmful NOT to violate his rights.
This is not the first time the University of Delaware has violated a faculty member’s academic freedom and tried to silence controversial research. Twenty-five years ago, the University banned receiving grants from the foundation supporting the research of a faculty member, Linda Gottfredson. In banning the funding, the University granted that for it to “direct…its attention to the content or method of any faculty member’s research or teaching” would violate the faculty member’s academic freedom. Gottfredson won at federal arbitration when she showed that the University did precisely what it stipulated it must not do (full disclosure: I was her co-plaintiff). When reminded of this precedent and the University’s own stipulation, White, reaching for still another excuse to violate Legates’ rights, said that academic freedom does not impede FOIA requests. State law trumps University policy, he said. When reminded that Legates’ materials included nothing that was subject to the Delaware FOIA law, White dismissed the objection out of hand, without answering it. As he disdainfully declared yet again, the faculty member did not adequately understand the intricacies of the law.
It would be bad enough had White properly applied the FOIA law and UD policy to Legates, but only Legates, and exempted the three politically correct faculty from the burden he levied on Legates. But, much worse, in the guise of asserting his administrative authority and his superior understanding of the law, White repeatedly misrepresented and ignored the established policy and law. Again and again, he fabricated his own policy and law, and justified his actions against Legates on specious grounds. He used his position as Vice President and General Counsel to transform faculty protections against political interference into a cudgel to silence one side in the current climate debate.
Jan H. Blits, professor in the University Honors Program at the University of Delaware, is the winner of the 2011 Jeane J. Kirkpatrick Academic Freedom Award.