Judge Approves Request to Protect Scientists' Private Emails Disclosure to Special Interest Group

Late yesterday, Prince William County Circuit Court Judge Gaylord Finch approved an Oct. 18 request from the University of Virginia (UVA) to alter an agreement that would have unnecessarily disclosed private email correspondence among more than 30 scientists studying climate change to lawyers from the American Tradition Institute (ATI).

Early this year, ATI filed an open records request under state law targeting email correspondence centered on former UVA professor Michael Mann. The emails the group is seeking are identical to those identified in a subpoena from Virginia Attorney General Ken Cuccinelli that was rejected by a different judge last year.

Yesterday, Finch also granted Mann standing in the open records case, which centers on emails he sent and received between 1999 and 2005 during his tenure at UVA.

Michael Halpern, Scientific Integrity Program Manager at the Union of the Concerned Scientists (UCS), praised the judge's decision.

"Chalk up a win for scientists in Virginia and for all of us who benefit from their discoveries," he said. "We all can breathe easier today knowing that UVA and the courts intend to protect scientists' right to communicate frankly and openly with their peers. When scientists have sufficient privacy to explore new ideas, they can better advance human knowledge and help us address the challenges we face."

The judge ordered the university and ATI to choose an independent third party by Dec. 20, 2011 to evaluate which correspondence should be disclosed and which should be protected.

Halpern agreed with the principles behind the decision. "While the responsibility of UVA to comply with open records requests is indisputable, the university also has the responsibility to protect its employees' privacy and maintain scientists' ability to conduct research without fear of harassment," he said. "Freedom of information laws are essential to a democracy, but they must be applied fairly and ATI shouldn't get special treatment. In this case, a neutral third party is a far better arbiter than the lawyers at ATI who filed the request in the first place."

UCS has assembled a timeline that tracks legal harassment of Mann and his colleagues. Particular actions that are relevant to today's decision include the following:

• On April 23, 2010, Cuccinelli requested emails from, to and mentioning Mann and 39 other scientists under the state's Fraud Against Taxpayers Act. On Aug. 30, 2010, a judge rejected Cuccinelli's request, ruling that Cuccinelli has not sufficiently demonstrated a reason to request the records.
• On Dec. 15, 2010, Cuccinelli appealed this decision to the Virginia Supreme Court.
• On Jan. 6, 2011, ATI submitted a Virginia State Freedom of Information Act request that sought records identical to Cuccinelli's request.
• On April 14, 2010, UCS and other groups sent a letter to UVA which urged UVA President Teresa Sullivan to ensure that the university exercised appropriate exemptions in responding to ATI's request for private correspondence among scientists. Sullivan responded on April 21, noting the similarity between ATI's request and Cuccinelli's and avowing that the university would exercise "all available exemptions" in responding to ATI's request.
• On May 24, 2011, UVA entered into a "protective order" with ATI that would have allowed the group's lawyers Chris Horner and David Schnare to review private correspondence among scientists the university found exempt from the state's open records law. Both lawyers would have to abide by a gag order which would have prevented them from discussing the content of the exempt emails.
• On Aug. 10, 2011, UCS, the American Association of University Professors, the American Geophysical Union and Climate Science Watch sent a letter to UVA President Sullivan urging the university to alter the protective order. The groups argued that it was inappropriate for the university to disclose those emails to the lawyers who were requesting it even if it was under a gag order.
• On Oct. 18, 2011, the UVA asked the court to update the protective order based on their attorney Richard Kast's arguments that ATI's lawyers were the same people requesting the documents, that ATI was biased in its public statements regarding how it would treat documents disclosed under the flawed protective order, and concerns that ATI attorney David Schnare had not appropriately disclosed matters related to his employment at the U.S. Environmental Protection Agency. Kast also filed an affadavit containing supporting documents.