Higher-education associations are at odds with news-media groups in a court dispute over whether Virginia’s open-records law exempts a wide range of documents deemed proprietary by the University of Virginia and the prominent climate scientist who produced them.
In a case scheduled to be heard on Thursday by the Virginia Supreme Court, the university and several national higher-education groups are arguing that the open-records law should not be construed as giving an advocacy group access to many research-related documents produced by Michael E. Mann, the climate scientist, while he was on the university’s faculty.
On the other side, the Reporters Committee for Freedom of the Press has joined 17 media organizations in arguing that the records-request exemption being sought by the university is so broad that it would effectively gut the law at issue, the Virginia Freedom of Information Act, hindering journalists’ ability to cover public institutions.
The dispute pending before the state’s high court is the latest of several legal skirmishes pitting Mr. Mann against critics of his research, which points to the existence of man-made climate change. The documents at issue in the Virginia case stem from his time as an assistant professor in the environmental-sciences department at the University of Virginia, where he served on the faculty from 1999 until 2005. He now directs Pennsylvania State University’s Earth System Science Center.
The American Tradition Institute, a conservative advocacy group that in September renamed itself the Energy and Environment Legal Institute, submitted its initial request for Mr. Mann’s documents to the University of Virginia in January 2011 and sued it that spring to compel the university to comply with its demands.
The university identified more than 32,200 emails and nearly 1,800 other documents as potentially covered by the open-records request, which included documents related to his research at Virginia and his correspondence with 39 other named scientists. The university initially agreed to give the advocacy group many of the documents that it sought, but then pulled back from that agreement at the urging of Mr. Mann, the American Association of University Professors, and other advocacy groups.
How Broad an Exemption
Attorney General Kenneth T. Cuccinelli II of Virginia, a Republican, mounted a similar effort to obtain documents produced by Mr. Mann from the university. His document request did not, however, cite the open-records law. Instead he cited his investigative authority under the state’s Fraud Against Taxpayers Act, based on his expressed suspicions, never proved, that Mr. Mann had misrepresented scientific findings to obtain government research grants.
The Virginia Supreme Court thwarted him with a March 2012 ruling that held the university was exempt from the antifraud law because that law covers individual people, not institutions. Given that the attorney general’s lawsuit concerned a different statute, how the court ruled in his case has little or no bearing on how it will rule in the current lawsuit.
The pending lawsuit’s efforts to obtain research documents generated by Mr. Mann has come down to the question of how to interpret an exemption in Virginia’s open-records law for “data, records, or information of a proprietary nature” that was produced by public colleges’ faculty or staff members and “has not been publicly released, published, copyrighted, or patented.”
Many other states have adopted similar exemptions to open-records laws in order to encourage publicly employed researchers to communicate candidly with their peers and to protect from public disclosure discoveries that might generate revenue for universities or lead to local economic development.
A state circuit court ruled against the American Tradition Institute in September 2012, arguing in a subsequent order that “an overwhelming majority” of the sample document requests the court examined cover research that should be considered proprietary. The court interpreted “proprietary” as meaning property “owned or in the possession of one who manages and controls” it—in this case, the university.
The American Tradition Institute, in appealing that decision, has argued that the circuit court’s definition of proprietary records is far too broad—a view echoed in the friend-of-the-court brief submitted on the advocacy group’s behalf by the Reporters Committee for Freedom of the Press and other media organizations, including the Associated Press, National Public Radio, and the Newspaper Association of America.
The media groups’ brief argues that “email among professors is not entitled to a blanket treatment as proprietary” because “such communications are an essential part of the functioning of the university and must be subject to public scrutiny.” In addition, it says, the type of email at issue “does not include unpublished information in which the professors of the university have a competitive interest.”
A ‘Strong Chilling Effect’
On the other side, the American Association of University Professors has been joined by the Union of Concerned Scientists in arguing that the American Tradition Institute’s records request is so broad that it threatens academic freedom.
“Requiring the production of correspondence with other academics will have a particularly strong chilling effect on intellectual debate among researchers and scientists,” the brief argues, because the exposure of preliminary, unpublished thoughts to the public eye will “inhibit researchers from speaking freely with colleagues, with no discernible countervailing benefit.”
Similar concerns have been expressed in a brief submitted by the National Academy of Sciences, the American Council on Education, and five other higher-education groups. That brief argues that the circuit court’s decision was “grounded in longstanding and settled principles of academic freedom,” and promotes Virginia’s interest in maintaining universities that can recruit and retain outstanding faculty members and produce research that helps the state’s economy.
