Guest essay by Charles Battig
No, that is not a mistake. FFIA is the unofficial, but real operative world of bureaucracy, which has its own interpretation of the official Freedom of Information Act (FOIA). For those who have wished to probe the nooks and crannies of government at all levels, the original act provides a valuable investigative tool.What is FOIA? From the Federal website:
“Enacted on July 4, 1966, and taking effect one year later, the Freedom of Information Act (FOIA) provides that any person has a right, enforceable in court, to obtain access to federal agency records, except to the extent that such records (or portions of them) are protected from public disclosure by one of nine exemptions or by one of three special law enforcement record exclusions. A FOIA request can be made for any agency record.” (snip)“Under the FOIA, agencies must disclose any information that is requested – unless that information is protected from public disclosure. The FOIA also requires that agencies automatically disclose certain information, including frequently requested records. As Congress, the President, and the Supreme Court have all recognized, the FOIA is a vital part of our democracy.”
“It is the Executive Branch, led by the President, that is responsible for the administration of the FOIA across the government. The Department of Justice’s Office of Information Policy oversees agency compliance with these directives and encourages all agencies to fully comply with both the letter and the spirit of the FOIA.”
Mind you, not only the letter of the law, but the spirit of the law.The Commonwealth of Virginia FOIA version, enacted July 1, 1968, states:
“By enacting this chapter, the General Assembly ensures the people of the Commonwealth ready access to public records in the custody of a public body or its officers and employees, and free entry to meetings of public bodies wherein the business of the people is being conducted. The affairs of government are not intended to be conducted in an atmosphere of secrecy since at all times the public is to be the beneficiary of any action taken at any level of government. Unless a public body or its officers or employees specifically elect to exercise an exemption provided by this chapter or any other statute, every meeting shall be open to the public and all public records shall be available for inspection and copying upon request. Records and meetings shall be presumed open, unless an exemption is properly invoked.”
This all reads quite to the betterment of an informed citizenry, and puts governmental and public agencies on notice that they are open to public scrutiny. There have been some notable bumps on this inside-information super-highway, but it has provided many concerned citizens the information needed to deal effectively with governmental agencies at all levels.The U.N. Intergovernmental Panel on Climate Change (IPCC) proved to be a fertile area for the many seeking inside answers to the basic questions of climate science and the motivations of those promoting the U.N. version of climatology. That version is the one with the built-in presumption that human activity is the predominant agent of climate change caused by conspicuous consumption of fossil fuels; that such change is universally harmful; and that such climate change is unprecedented.The correspondence unearthed in the 2009 Climategate data dump contained much behind-the-scenes uneasiness by the principal advocates of this U.N. policy. The fear of FOIA was singled out by U.K. researcher Phil Jones in one of the reported e-mails:
“In February 2005, Phil Jones wrote to Mann…If they ever hear there is a Freedom of Information Act now in the UK, I think I’ll delete the file rather than send to anyone.”
Much of the details of Climategate have been covered. There was even a “Mr. FOIA.” The reams of downloads have been catalogued and made searchable for those wishing to explore further. But, onto the further adventures with FOIA. One of the luminaries of the Climategate e-mails was ex-University of Virginia (UVA) climatologist Professor M. Mann. In a most peculiar modern version of “star-crossed lovers,” the paths of then Virginia Attorney General Ken Cuccinelli and the UVA academic record of M. Mann intersected in the Federal Courthouse in Charlottesville, VA August 2010.
The AG had filed a Civil Investigative Demand (C.I.D.) upon UVA to disclose Professor Mann’s climate research activities while employed by UVA and, and by inference, receiving VA taxpayer monies. As Climategate disclosures had given cause to doubt the scientific validity of many climate change claims, the AG claimed a possible misuse of taxpayer funds, and filed the C.I.D. in Charlottesville Federal Court. Mothership UVA had been attacked, and she responded with legal phasers blazing. Sitting next to me in the first row of the courthouse that day was attorney Chris Horner, who had become master of the successful FOIA process. However, complete success was not to be the ultimate outcome of this case as it proceeded through the Virginia legal system. Horner has detailed the arbitrariness of the FOIA process in action, as judges interpret what is “privileged” and thereby exempt from FOIA requests in his book, “The Liberal War On Transparency.”
The UVA home team circled their wagons of outrage around the rallying cry of “academic freedom.”The VA Supreme Court became the final arbiter of what is “privileged” at the last stop of this UVA FOIA legal process with its recent ruling. The April 2014 written decision homed in on the court’s definition of “proprietary” documents. Yes, disclosure under FOIA is valid concern, except when judges decide that certain categories are “proprietary.” Even, with this claimed victory for academic freedom under its belt, UVA might be a bit nervous, as one of its law professors has just been served with a FOIA request. The local Daily-Progress newspaper reported May 23, 2014 that faculty legal star Douglas Laycock, husband of UVA President Teresa A. Sullivan, is now the subject of a FOIA records request by two UVA student activists. The good professor has apparently committed a politically incorrect transgression by voicing legal opinions upholding freedom of religion. Gay rights groups have viewed his writings as discriminatory.
The irony for UVA is that FOIA is being invoked by these activists. The newspaper article reports: “The strategy of the FOIA request is to put everything on the table….We don’t think he’s doing anything wrong; it’s just looking at whether he knows how it’s being used.”That sounds very much like a “fishing expedition,” something the courts have frowned upon.
From USLegal.com: “The legislative history of the 1974 FOIA amendments indicates that a description of a requested record that enables a professional agency employee familiar with the subject area to locate the record with a ‘reasonable amount of effort’ is sufficient. Courts have explained that ‘[t]he rationale for this rule is that FOIA was not intended to reduce government agencies to full-time investigators on behalf of requesters,’ or to allow requesters to conduct ‘fishing expeditions’ through agency files.”Let the UVA FOIA games begin, again.
Academic freedom versus a privileged minority group claiming discrimination should engender reams of legal opinion. Freedom from information or freedom of information…it all depends.
Charles Battig, MD , Piedmont Chapter president, VA-Scientists and Engineers for Energy and Environment (VA-SEEE). His website is www.climateis.com