Michael Mann, a professor of meteorology and geosciences at Pennsylvania State University, isn’t an expert on state public-records laws. But he’s fast becoming one.
Mann’s research on climate change — especially the now-famous “hockey stick” graph showing a dramatic rise in global temperature at the end of the last millennium — has put him at the center of two legal battles in Virginia state courts.
At issue are e-mails and other documents Mann authored as a professor at the University of Virginia from 1999 to 2005. Virginia Attorney General Ken Cuccinelli has been seeking the records since 2010 under the state’s Fraud Against Taxpayers Act. And in January, a Washington-based nonprofit, the American Tradition Institute, began trying to get the same information through a state Freedom of Information Act request.
Cuccinelli and the institute have questioned Mann’s conclusions and say they want his e-mails to better understand how he carried out his research. But Mann, his attorney and other academics say the cases are rooted in politically motivated efforts to discredit climate-change science and chill future research.
Regardless of the reasons, though, the cases are also serving as tests of how Virginia law applies to requests for information from its public universities.
In Cuccinelli’s case, the Virginia Supreme Court will decide whether a lower court erred in tossing out his demands for information in August 2010. Cuccinelli’s office declined to comment, as did the university’s attorney in the case, Hogan Lovells partner Chuck Rosenberg. The case has been fully briefed but the court has yet to schedule arguments.
The action, at least for now, is in American Tradition Institute’s case. Earlier this month, retired Fairfax Circuit Judge Gaylord Finch, who is presiding over the institute’s case in Prince William Circuit Court by designation, not only granted Mann’s request to join the case as an intervenor — his first time getting directly involved in litigation surrounding his work — but also sided with the university in changing a protective order governing the review of e-mails. The institute’s case hinges on what information is exempted under Virginia’s FOIA law.
David Schnare, legal director of the American Tradition Institute’s Environmental Law Center, denied that the case is about rejecting climate change or going after Mann. “There are some serious questions about what [Mann] did and how he did it,” he said. He added that his group does challenge Mann’s findings on the degree to which the earth’s temperature is rising and what role humanity has played.
But the case, he said, is about “the balance between protecting the academic freedom of professors and researchers, which we believe needs to be protected, and balancing that against the transparency needs of the citizens,” Schnare said.
Mann, represented by Cozen O’Connor partner Peter Fontaine, doesn’t buy it. The FOIA request is “just another maneuver being used and abused,” Mann said. “Those who are trying to undermine science would like nothing more than to saddle prominent scientists with these vexatious demands.”
Most public universities are covered by state freedom of information laws, said Ken Bunting, executive director of the National Freedom of Information Coalition, housed at the Missouri School of Journalism at the University of Missouri. Bunting, whose group tracks state and federal laws, said statutes differ on what information is exempted from requests.
By design, these laws carry nondiscrimination clauses, meaning petitioners don’t have to explain why they want public documents, Bunting said. “Open government is very important to our democracy, but…scientists should not be harassed for doing their job,” he said.
Public universities in Virginia are covered under the state’s FOIA, but the law includes exemptions for scholarly research. A dispute over how to interpret the exemptions is at the heart of the American Tradition Institute case.
Fontaine said the law gives the university “broad discretion” to keep proprietary information, including private research, out of the public spectrum. “People should feel that they have the freedom to inquire into different areas, and probe and criticize and challenge,” he said.
Schnare disagrees that Mann’s e-mails should be considered proprietary information. He said that when research is concluded, “that’s when you open the doors to what you did.”
The university’s Office of General Counsel, which is representing the school without outside counsel in the institute’s FOIA case, did not return a request for comment.
The case has been caught up on technical issues, though. The university initially agreed to let opposing counsel review e-mails it believed were exempt under a protective order. But on Oct. 17, the university moved to put a third party in charge of reviewing the information instead, citing a lack of trust in Schnare and other opposing counsel to honor the original order.
Finch granted the motion, along with Mann’s request to enter the case as an intervening party. The university is considered the custodian of records and, as in other public-records requests, has handled litigation to date. Mann said the wrangling over the protective order made it “clear that my privacy interests could not be represented entirely by the university.”
Fontaine said the decision wasn’t a criticism of the university’s handling of the case. He said Mann “felt strongly” that any access to the e-mails “would essentially be an invasion of privacy and would result in a chilling of these individuals’ rights to correspond freely in pursuit of science.”
Schnare said he opposed the request because Mann doesn’t own the e-mails; they belong to the university. “The law in Virginia basically does not provide an intervenor status” for bystanders, he said.
Finch, who didn’t give a reason for his decision on either issue, ordered attorneys to agree on a third party by Dec. 20. Cuccinelli’s case is similarly in limbo, as both sides wait for the Virginia Supreme Court to schedule arguments.
Cuccinelli’s case doesn’t involve the state’s FOIA law and the court’s decision is unlikely to have legal bearing on the institute’s case. An Albemarle County circuit judge found that Cuccinelli failed to specify how the information his office requested would support an investigation into alleged violations of false claims law.
Cuccinelli argues in his brief that he should have some discretion to seek documents as part of an investigation. The university, according to its brief, is opposed to what it calls “a fishing expedition.”
Mann said that, whatever happens, the cases have made him and his colleagues more wary of what they put in writing. “It probably means that we all spend more time crafting our e-mails to each other so carefully that even the most dishonest actor can’t find a way to misquote us,” he said.
Contact Zoe Tillman at email@example.com.