Bishop Hill Mann's emails - the next steps
Mar 22, 2012 Climate: Mann FOI The Washington Post has a very useful article looking at what happens now the Virginia Supreme Court has thrown out Cuccinelli's attempt to get Mann's emails.
Now that Attorney General Ken Cuccinelli’s investigation into climate research has been tossed out of court, a similar case in Prince William County targeting the same ex-University of Virginia scientist moves into the spotlight.
And this case, seeking some 12,000 emails sent and received by scientist Michael E. Mann, using the Freedom of Information Act, appears to have a far greater chance of success.
That’s because U.Va. apparently has already given the 12,000 e-mails to Mann himself, though he left Charlottesville years ago. The American Tradition Institute, the conservative group hoping to show that climate change scientists like Mann manipulated their data, argues that U.Va. can’t give the e-mails to one person and not another. By giving the emails to Mann, the university has waived any exemptions they’re claiming to the state Freedom of Information Act, ATI says.
The article is reproduced at the ATI website.
Reader Comments (17)
How can there be a shared interest if Mann no longer works for U.Va?
Maybe though, there really isnt anything to see here? I mean...given how prickly Mann seems to be, perhaps this is the reason behind why he is moving heaven and hell to keep his emails from seeing the light of day? Maybe the guy is just doing what is in his character, ie. he believes he is sooooo important that he reckons its a slight on his character to have someone request his emails?
Regards
Mailman
I wonder why Mann wanted them all in the first place, maybe the team are worried about the encrypted FOIA files and wanted to pre prepare a strategic PR plan. I think it's safe to say they will try every delaying tactic in the book to prevent any release, especially before Rio in June.
"......appears to have a far greater chance of success......"
If an Attorney General cannot get hold of them, I beg to disagree!
At first, I would have guessed that these emails contain nothing more "incriminating" than the sort of stuff revealed in the Climategate emails. However, the contortions and expense here have gradually convinced me that there is more.
Attorney General Round 2 now?
Once again I am reminded that neither you, Bish, nor Steve McIntyre approved of Cuccinelli's legal action from the outset.
Nonetheless it is important to note that Cuccinelli's suit was "thrown out" - correctly I think - on the legal technicality that his Civil Demand action cannot apply to government entities such as the University of Virginia. That point seems technically similar to the British FOIA statute which provides a miniscule 6-month statute of limitations, thus letting UEA off the hook even against their egregious and demonstrable FOIA infractions.
As a Virginia resident, it would not surprise me in the least to see the Virginia Legislature amend the existing Civil Demand statute to expressly include state universities. It wouldn't retroactively impact this particular case (which was dismissed with prejudice, meaning no appeal) but it would certainly close the implied legal exemption which occurred here.
This is fairly standard in many aspects of US law. For example, if your receive legal advice and disclose it to a third party then the attorney/client privilege no longer applies.
Basically, if you want to keep something secret then you can not selectively choose which third parties you disclose to. You either disclose to none of them or all of them.
This will be decided on whether Mann is a third party or not.
Since he does not work for the University of Virginia the ATI will claim he is a third party and therefore exemption has been waived.
The University of Virginia will claim that since he authored or received the emails he is an interested party and is therefore not a third party. The problem with this is that every ex University of Virginia employee who either authored or received one of the emails could demand copies of those emails as an interested party and UV would be hard pressed to deny them.
Hoist on their own retard.
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When one side in litigation encounters argument on a novel point of law which has many other lawyers nodding their heads and saying "makes sense to me", prior to it being tested in court, and then starts bleating "Disingenuous" and "Preposterous", you know they are worried.
As appears to be the case in climate science and with climate scientists (Mann particularly) the more pompous and dismissive the language, the more we know that they know their position is without merit - and the more we know that they know we know.
An amazing charade, RB. I'll stand by this as theatrical science.
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Mar 22, 2012 at 9:07 AM | Frosty
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I would bet that the UEA has already taken off it's server a complete copy of all emails that were on it so that it can review these to see what might be included in the encrypted files. That would be prudent so that they can prepare the PR case should the encrypted files be opened and/or should in some other manner any further damaging emails that were on the server and which may have been hacked/leaked come to light.
Surely, the expectation is that Mann's emails may be different and additional to those that have come from the UEA server. If Mann's emails are merely a duplication of CG1&2 there is nothing of (additional) substance and the disclosure action against Mann will achieve nothing.
I agree with the comments expressed by Garry and Terry S.
Whilst I am not an expert in US law, I find it difficult to consider that someone who authored a communication could be classified as a third party to that communication. The same would apply to the recipient.
Mann already has knowledge of everything he has written and received. It is just a question of the extent of his current and detailed recollection.
Whilst Mann may not 'own' the email correspondence and whilst this may belong to his employer (in this case his ex-employer), one question that might be relevant is whether his ex-employer could have prevented Mann from reading this old correspondence had he made an official request to read it. Does he not have an interest in it? and I am far from convinced that he would not have a right to review it (although there may be some restriction as to the extent to which he should profit from it - but that is an employment issue). The answer to this question might have some bearing.
I can see a pedantic distinction between someone who is copied into an email exchange, and the addressee. However, I think that the distinction is without substance since is not being a cc shorthand for 'see attached for your info'? and if it is then it is essentially being addressed to them for informative review.
I see problems with this litigation.
One point that I failed to make is that if you cannot get in through the front door (the FOI request), it never looks good to seek to barge your way in through the back door.
That does not mean that the litigation will fail, but it may be the case that a judge will require a higher standard of proof before being convinced that it is right for him to allow the front door to be circumvented.
In other words I envisage that the judge will be mindful of: if the legislature (for whatever reason better or worse) provides a state immunity exemption should that legislative exemption be circumvented via the backdooor? Is it right to defeat the will of the legislature in this manner?
Posted by Dave L on CA
In the background, let us not forget that UVA had no quams about releasing Pat Michaels’ e-mails to a Greenpeace FOIA request after Michaels departed UVA. Surely ATI will submit this fact in its argument.
If ATI have picked that up the UVA are in trouble whatever defence they use.
Re: richard
The AG was investigating fraud and used legal means appropriate to that investigation to attempt to obtain the emails.
The ATI is attempting to obtain the emails by the only means available to them, which is FOI.
They are both using the front door, they just happen to be different front doors.
The problem the U of V has is that did not consider all the ramifications of handing the emails over to Mann. They did not have to do this in order to successfully oppose the AG. They did not have to do this in order for Mann to get involved. They still handed them over and might yet suffer the consequences.
I sense a high water mark. That this piece passed editorial review at the WaPo, the most influential paper in that bayside backwater(the sun, and all the planets revolve around the District of Columbia), is telling.
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Richard you are correct.
UEA has already obtained copies of relevant emails, from the backup server- and what is more paid over £10,000 for that service.
They have had these since the Russell (whitewash) review.
This whole affair suggests very strongly that the IPCC 'consensus' has been fraudulent from Day1.
No 'back radiation'. Incorrect radiative heat transfer.Twice real low level cloud optical depth and incorrect aerosol optical physics of polluted clouds purportedly offsetting the imaginary high feedback warming. The fake hockey stick to 'disappear' the MWP/
These e-mails must be dynamite.