Tough questions about FOIA abuse to the University of Delaware

Readers may recall this story:The Climate Wars and the University of Delaware. Now, there’s some tough questions that need answers.

From: The Viscount Monckton of Brenchley 27 Queen Street | Edinburgh | EH2 1JX

The Hon. Beau Biden, Attorney General, State of Delaware attorney.general@state.de.us Sir, Title 29 Ch. 100: Freedom of Information Act §10005 (e) (enforcement) Refusal of a request for public information by the University of Delaware

Under §10005 (e) of the Act, I petition you to determine whether a violation has occurred. Lawrence White, vice-president and general counsel of the University of Delaware, yesterday refused in the following terms a request by me for information related to what he had previously designated as State funding of the University:

“I acknowledge receipt of your email message. The facts recited in your note are incorrect and incomplete. Other than to say that, I thank you for sharing your views and decline to comment further.”

On May 9, 2014, I had sent to Mr White and to the Vice-Chancellor a list of questions (appended hereto), making it explicit in the covering note that this was a request under the Act for information relating to State funding of the University. The University, otherwise exempt, is required to provide such information under §10002 (j).

Mr White’s sole pretext for denying my request, that my facts were “incorrect and incomplete”, does not constitute a legitimate ground of refusal, for my request was designed to determine whether information that I had received about vindictive discrimination of a tenured employee by Mr White and others at the University over several years was correct. None of the exemptions listed in the Act applies.

The employee, Professor David Legates, a former State Climatologist, has been greatly distressed by his mistreatment. On learning of his plight, I sent the request to Mr White. Given the discrimination against the Professor, inferentially because he has scientific doubts about the official viewpoint about the climate, I hope it is irrelevant that I am not a Delaware citizen. Otherwise a citizen will resubmit my questions.

Professor Legates did not ask me to make a Freedom of Information request or to approach you when it was capriciously denied. On learning of what had happened to him, I decided to act ex proprio motu. I hope you will protect him from any further vindictiveness on the part of the university that may arise from this letter to you, for which he is in no way responsible.

Whether or not you can help under §10005 (e), I also request criminal investigation of the University’s conspiracy in false accounting and in evading its FOIA obligations.

Yours faithfully,

Questions for the University of Delaware

1. Is it true that under the Delaware FOIA Statute the University is explicitly exempted from compliance with the State’s Freedom of Information Act except in matters related to the Board of Trustees and to those aspects of the work of the University or of its personnel that are wholly or partly funded by the State of Delaware?

2. Is Professor David Legates a member of the Board of Trustees of the University?

3. For each year from 2000 to 2009, please state the total amount of public funds shown in the University’s accounts as having been received by or allocated to Professor Legates in respect of his post on the faculty at the University and as State Climatologists.

4. For each year from 2000 to 2009, please state the total amount of public funds specifically hypothecated and paid by the State of Delaware to the University or to Professor Legates with the intention of funding his activities directly, whether in his capacity as a Professor at the University or in his capacity as Delaware State Climatologist.

5. During which of the years 2000 to 2009 was Lawrence White the University of Delaware’s General Counsel?

6. Is it true that on or about 16 December 2009 the University of Delaware received a request from Greenpeace, in respect of documentation related to the work of Dr David Legates from 2000-2009 on “global climate change”?

7. Is it true that the Delaware FOIA Statute normally requires a response to Freedom of Information requests within ten working days?

8. On what date did Mr White first meet with Mr Legates in connection with the Greenpeace Freedom of Information request?

9. Is it true that at that first meeting Mr White told Mr Legates to turn over to him at least the following: all materials related to the State climate office, and all documents in his possession relating to “global climate change”?

10. Is it true that Mr White told Mr Legates to hand over to him even documents unconnected with either the University of Delaware or the State Climate Office, and even if they were produced on his own time, or on his own computer? If so, how does the University explain why any such documents could possibly – even in theory – be covered by the terms of the Delaware Freedom of Information statute?

11. Is it true that when Professor Legates asked Mr White why he had to hand over documents that could not by any stretch of the imagination be legitimately regarded as covered by any FOIA request, he was peremptorily told that as a faculty member he was obliged to comply with the request of a “senior ranking officer” of the University whether he liked it or not, and whether there was any legitimate reason for the request or not?

12. Under what provision of public law or of the University’s private law was Mr White entitled arbitrarily to demand from Mr Legates copies of documents that could not have had any conceivable relevance to Greenpeace’s FOIA request?

13. Is it true that when Mr Legates asked Mr White to put in writing his request for all documents, however irrelevant, Mr White backed off and conceded that he was not empowered to request any documents other than those related to Professor Legates’ paid work for the University of Delaware?

14. Given that Mr White now concedes he had no right to demand Mr Legates’ personal documents, does he consider appropriate his earlier statement to Professor Legates that as a

mere faculty member he was obliged to comply with the request of a senior university official?

15. Is it true that on or about January 26, 2010, Mr White received a near-identical FOIA request from the Competitive Enterprise Institute, a free-market advocacy group, in respect of three of Professor Legates’ colleagues who, however, took a position on the question of “global climate change” that was opposite to that of Professor Legates but coincident in all material respects with that of the University of Delaware?

16. Is it true that Mr White commented of the free-market advocacy group’s FOIA request by indicating that “This one will probably be answered with a short ‘No’.”? If so, on what grounds recognizable in law did Mr White not also answer Greenpeace’s request with “a short ‘No’”?

17. Is it true that Mr White indeed gave the second FOIA request a “short ‘No’” by writing to the free-market advocacy group, on or about February 3, 2010, that “Because the information you seek does not relate to the expenditure of public funds, the University respectfully declines your records request.”? If so, why was no similar “short ‘No’” sent just as timeously to Greenpeace?

18. Is it true that when Mr Legates asked why Mr White was favouring Greenpeace’s request to his detriment while saying “a short ‘No’” to a very similar request to the detriment of three of Mr Legates’ colleagues whose totalitarian viewpoint on the question of “global climate change”, unlike his own, was in all material respects identical to that of Greenpeace and of the University, Mr White replied that Mr Legates did not understand the law. If so, would the University please explain the point of law – if any – on which Mr White relied in attempting at that stage to treat the two requests oppositely?

19. Is it true that once Professor Legates had obtained advice from an independent lawyer Mr White decided to reverse his “short ‘No’” to the free-market advocacy group and wrote to retract his earlier email and to say he would “reconsider the substance” of their FOIA request on the ground that his initial response “did not take sufficient account of the legal analysis required under the Act”?

20. Is it true that once Professor Legates had obtained advice from an independent lawyer the Dean of the University of Delaware’s “College of Earth, Ocean, and Environment”, one Nancy Targett, told Professor Legates that Mr White was representing not only the University but also Professor Legates himself, but that now that Professor Legates had obtained his own legal advice the College would no longer support Professor Legates?

21. Is it true that, thereafter, the “College of Earth, Ocean, and Environment” indeed ceased to respond to Professor Legates’ requests for help in this matter?

22. Is it true that, after Professor Legates had spent more than 250 hours (i.e. more than six full- time weeks) of his own time, unpaid, going through ten years of his personal and university records to send all the requested files to Mr White, Mr White grumbled to Professor Legates’ lawyer that he was dissatisfied that it had taken Professor Legates two months to produce the requested documentation?

23. Is it true that in or about October 2010 the University Faculty Senate passed an amendment to the faculty handbook giving any faculty member “the right freely to address any matter, institutional policy or action of the administration”? If so, does the University consider that the asymmetrical and indeed hostile treatment of Professor Legates by the University’s Counsel and by the “Dean” of the fashionably-titled “College of Earth, Ocean, and

Environment” was or is in any degree consistent with the university’s policy on academic freedom of thought, of expression, and of action?

24. Is it true that the Provost of the University of Delaware, one Apple, has said: “The University of Delaware is taking a leadership position on academic freedom. … I strongly support the recent action by the Faculty Senate which ensures that faculty are free to speak their mind without fear of reprisal unless their statements or actions are unethical or incompetent. Academic freedom is essential to lively and open debate and discussion.”? If so, what is the University going to do about Mr White’s mistreatment of Professor Legates?

25. Does the University seriously suggest that Professor Legates is either “unethical or incompetent”? And does the University seriously suggest that Mr White is not both unethical and incompetent?

26. Is it true that Mr White, in or about May 2010, wrote in the Chronicle of Higher Education that the answer to the question “Could a speaker conceivably utter words so hurtful and so malicious that college officials could justifiably prohibit these words or punish the speaker for uttering them” is – to coin a phrase – a short “No.”? If so, why did Mr White selectively punish Professor Legates by requiring him to spend 250 hours assembling material all of which plainly and transparently fell outwith the scope even of the malicious FOIA request of Greenpeace?

27. Is it true that, notwithstanding the University of Delaware’s obligation in law to comply with an FOIA request within ten working days, it was not until June 20, 2011, that Professor Legates heard again from Mr White, who said he had hired a third-year law student to go through the material that Mr Legates had provided over a year previously? If so, why did not the University complain as vigorously about Mr White’s 18 months of delay as Mr White had so petulantly complained about Professor Legates having taken as long as a couple of months to assemble the material that Mr White then sat upon for a year?

28. Why did Mr White do nothing about the documentation supplied Mr Legates for more than a year?

29. How much was the third-year law student paid, and by whom? Was the money paid out of public funds?

30. Is it true that the president of the chapter of the American Association of University Professors at the University of Delaware, one Joan delFattore, wrote in or about January 2011, “A university’s real interest lies in fostering the exchange of divergent views …”? If so, why did the AAUP refuse to assist Mr Legates when he asked for its help, on the pretext that “the only areas where the Union could take direct steps is with respect to the collective bargaining agreement and hiring practices”, and why did it say it stood firmly behind Mr White’s actions, when its President was to say later that year, in respect of the discredited Dr Mann and his infamous “hokey stick” graph, “We are urging the University of Virginia to … publicly [resist] the threat to scholarly communication and academic freedom represented by the concerted effort to obtain faculty emails.”?

31. Did Mr White, on July 22, 2011, write to Professor Legates with a list of what he said he had decided to release to Greenpeace, saying of the Delaware Freedom of Information Act, “We have interpreted that language to mean that we are obliged to produce records, otherwise non-privileged, that pertain to work by Professor Legates that is supported through grants from state agencies; and classroom-related work such as syllabi, instructional materials, and class postings (because a small portion of his salary was paid out of state-appropriated funds). We have also elected 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.”?

32. Did Mr White say at that time that he was treating Professor Legates’ colleagues in an identical manner, when in fact Professor Legates was the only faculty member whose documents had actually been demanded, obtained, and examined?

33. Did Mr White say at that time that if Professor Legates did not consent to the release of his documents he would inform Greenpeace, the free-market advocacy group, and “Beveridge & Diamond” that there were some of Professor Legates’ documents that the University of Delaware had not produced, and that they should apply to Professor Legates for them?

34. Had the Competitive Enterprise Institute, and also “Beveridge and Diamond”, also asked for information from Professor Legates about “global climate change”? If so, why had Mr White failed to tell Professor Legates that? If not, why had Mr White proposed to write to them about Professor Legates’ materials?

35. Is it true that on August 4, 2011, Mr White told Professor Legates’ attorney that two other professors (Frederick Nelson and John Byrne) had also been required to produce documents, either to Mr White or to the Competitive Enterprise Institute? If so, why do Professor Nelson and the third-year law student hired by Mr White to review the documentation deny that Mr White had required them to produce documents, deny that they had produced them, and deny that they had been examined.

36. Is it true that Mr White, ordered by the University of Delaware’s president to reply to Professor Legates’ twice-asked and still-unanswered question to him about why a “senior ranking official” of the University had the right to review a faculty member’s records in the absence of any accusation of research misconduct, fraud, or plagiarism, wrote asking that Professor Legates’ attorneys should “do what they can to reduce the level of Professor Legates’ hostility”? If so, does not the University understand that it was not Professor Legates but Mr White who had not only spoken but also acted in a hostile, prejudiced and mendacious fashion throughout?

37. Is it true that, though Mr White had repeatedly stated he was treating the requests from Greenpeace and from the free-market advocacy group on an equal footing, he had in fact – after two years – not dealt with any FOIA requests directed at faculty members other than Professor Legates?

38. Is it true that Dr White, in August 2011, said he proposed to turn over to Greenpeace documents from Professor Legates whose disclosure was not mandated by the Freedom of Information Act? If so, on what legitimate ground in law did he make that proposal?

39. Is it true that the third-year law student hired by Mr White to inspect Professor Legates’ materials had categorized only three items as “files containing work product Professor Legates generated with state funds”, when all three items were manifestly either not by Professor Legates or not supported by the State of Delaware, or both?

40. Is it true that the law student’s item 1, two email conversations about funding sources, related only to a grant from the National Science Foundation, which has nothing to do with State funds and nothing to do with Delaware’s Freedom of Information Act, under which the request for information had been made?

41. Is it true that the law student’s item 2, an email from a State agency requesting Professor Legates to give a talk on climate change, does not fall within the Delaware Freedom of Information Act because Mr Legates was not the author of the email and was not paid for the talk he gave?

42. Is it true that the law student’s item 3, a 2006 report to the Governor of Delaware from the Delaware Water Supply Coordinating Council, was not authored or contributed to by Professor Legates sand was not, therefore, subject to the Delaware Freedom of Information Act?

43. Given that the only three items in Mr Legates’ possession that the law student hired and inferentially supervised by Mr White were manifestly not items subject to the Freedom of Information Act’s disclosure requirements, does the University regard its teaching of law as competent, does it regard its third-year law student as competent, and does it regard Mr White as competent, and, if so, on what conceivable grounds?

44. Is it true that that the third-year law student somehow did not include in his list of documents subject to the Freedom of Information Act an email exchange between Professor Legates and Dr Michael Mann, even though Greenpeace had specifically asked for all documents relating to Dr Mann? If so, could it be that the reason why Mr White found it inexpedient to include this email exchange in the documents he proposed to release to Greenpeace is that in the emails Dr Mann was highly critical of Dr Santer, who had single- handedly rewritten the 1995 IPCC Assessment Report making 200 alterations, deleting all five references to the fact that no human influence on global temperature was discernible and replacing them with a single statement – scientifically unwarrantable but socially convenient, politically expedient and financially profitable – directly to the contrary?

45. Why did neither the University of Delaware’s president nor Mr White ever answer Professor Legates’ surely sensible question about what right Mr White had to assert his authority as a “senior ranking official” of the University in demanding that Professor Legates should produce documents related to his teaching and research that were not covered by the Freedom of Information Act?

46. On what exact date did the University of Delaware first decide to account for a small fraction of Professor Legates’ salary as though it were funded by the State?

47. Was any part of Professor Legates’ salary ever specifically funded by the State? If not, do the University’s accounts now show that some of it was? If they do, why?

48. Why was Professor Legates never told that part of his salary was now being paid by the State of Delaware?

49. Is it true that the State of Delaware specifically requires the University to apply some of its State funding to pay faculty salaries on the basis that this spending furthers the mission of the University?

50. Is it true that the State funding, if its accounting were distributed equally among all faculty and administrators, would make all of them subject to the Freedom of Information Act, in that a fraction of every salary would be funded by State appropriations?

51. Is it true that the University averts compliance with the Freedom of Information Act among those of its faculty whose viewpoints on matters such as “global climate change” it favors, by not writing down any fraction of their salaries in its accounts as attributable to State funding, and discriminates against those whose viewpoints it does not favor by writing down some fraction of their salaries in its accounts as attributable to State funding and consequently subject to the Delaware Freedom of Information Act?

52. Is it true that the University’s irregular and corrupt policy of arbitrarily, capriciously, and falsely accounting for the State’s funds in a furtive, asymmetrical and discriminatory fashion is not made explicit in the Faculty Handbook or anywhere else; that Professor Legates had not been told of it; and that he only discovered it when at length a new and honest president

of the local chapter of the American Association of University Professors, apparently at the instigation of the justifiably outraged National Association of Scholars, contacted the University of Delaware’s Budget Office?

53. Is it true that this corrupt policy of arbitrary and capricious accounting for State funds has been in place for at least 20 years?

54. Is it true that when the University receives a Freedom of Information request Mr White’s first question is to the Budget Office asking whether the subject of the request is “State funded?”?

55. Is it true that if the Budget Office says the subject of the request is not “State funded” Mr White usually sends “a short ‘No’” in response to the request, but that if the Budget Office says the subject of the request is “State funded” Mr White is obliged to determine what documents were produced under State funding and, if they fall within the scope of the FOI Act, turn them over to the requesting party?

56. Is it true that Mr White in particular and the university in general has evaded compliance with the Freedom of Information Act in respect of those fortunate enough to have been classified as not having part of their salaries funded by the State?

57. Is it true that certain faculty, such as Professor Legates, are capriciously exposed to the requirements of the Freedom of Information Act without even having been told that part of their salaries is being accounted for as though it were State-funded?

58. Is it true that even where the University has thus falsely and furtively accounted for part of some faculty members’ salaries as though they were State-funded the FOIA is clear that unfunded research and all communications and documents not related to teaching would not fall within its scope?

59. Professor Legates was told that from 2000 to August 2008 no part of his salary was accounted for as having been “State funded”. He was told, however, that from September 2008 part of his salary was accounted for by State funding. Is what he was told correct, or were the University’s accounts altered after the FOIA request from Greenpeace so as to provide a false and artificial pretext for White to demand that Professor Legates should spend weeks digging through ten years of his work?

60. In what sense can the University’s misconduct towards one of its Professors, and its discrimination in favor of a totalitarian advocacy group and against a free-market advocacy group, be regarded as anything other as hostile, intimidatory, prejudiced, totalitarian, and contrary to its own declared policies and those of its relevant officials on the question of academic freedom?

61. Now that Mr White has returned all of Professor Legates’ materials and has decided that he had better not send anything to the hard-Left front organization with whose request he and the University had hitherto shown such unbecoming and unbending sympathy, what steps does the University propose to take to apologize publicly to Professor Legates for the harassment and intimidation to which he has been subjected, to compensate him financially for the weeks of time and the years of worry to which its undue indulgence of the request from Greenpeace has inflicted upon him, to remove Mr White from office and discipline him before he can do any more damage to the careers of those with whose opinions the University disagrees and to the reputation of the University itself; to take urgent legal advice independent of the prejudiced and mendacious Mr White; to draw the false accounting and the concomitant arbitrary, capricious and malevolent device to evade compliance with the Delaware Freedom of Information Act and yet to use it to discriminate against disfavored

faculty members forthwith to the attention of the relevant administrative, investigatory and prosecuting authorities in the State of Delaware; and to amend its accounting practices to bring them into some semblance of conformity with morality and the law?