This is a guest post by Richard Brearley
There has been quite a lot of coverage that I have seen of Mann’s attempt to intervene in the UVA FOI case. None of it has given sufficient detail to enable me to understand the specific issues involved and so I decided to have a look at it myself.
We need to remember that the order requiring “protective disclosure” of all of Mann’s emails during his six-year stint at UVA was by agreement between ATI and his former university. Further, that order specifically stated in its text that its purpose was “protecting information that may be exempt from disclosure under the Virginia Freedom of Information Act”. Any documentation that the university unilaterally deems to be exempt cannot be disclosed to the public without a further order of the court. This means that the university can decide without agreement from anyone else what is exempt and it can only thereafter be disclosed if a judge says so. This would only ever happen if the ATI then took back to the court a challenge that some or all of the information the university had deemed to be exempt should not be so treated. That issue would then be decided by the court.
Mann says in his intervention documents that in agreeing to release all documents under this protective umbrella the university has not protected his proprietary rights, such as they may be. There is no mention in those documents of any obligation on the University to do so. Mann says that in agreeing to the order, the university has agreed to disclose to the court documents that are in fact exempt from disclosure under FOI, but of course that is the purpose of the original order which seeks to facilitate negotiation and, if necessary, further court orders as to what is in fact disclosable to the public. Mann maintains that the documents that are exempt are documents of a personal nature. But what does Mann mean by “personal”? He specifically refers in this context to documents that contain his “thoughts, ideas, and statements regarding numerous scientific issues”. And later he refers to his personal emails “relating to climate change and other scientific issues”. So Mann is not trying to stop the disclosure of emails to his gran or his wife/girlfriend, but very specifically those relating to his thoughts, ideas, and statements relating to climate change.
Let’s have a brief look at the stated purpose of the Virginia FOI legislation:
§ 2.2-3700. Short title; policy.
A. This chapter may be cited as "The Virginia Freedom of Information Act."
B. 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. All public records and meetings shall be presumed open, unless an exemption is properly invoked.
The provisions of this chapter shall be liberally construed to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government. Any exemption from public access to records or meetings shall be narrowly construed and no record shall be withheld or meeting closed to the public unless specifically made exempt pursuant to this chapter or other specific provision of law. This chapter shall not be construed to discourage the free discussion by government officials or employees of public matters with the citizens of the Commonwealth.
All public bodies and their officers and employees shall make reasonable efforts to reach an agreement with a requester concerning the production of the records requested.
However, Mann’s intervention is based, as his lawyers point out, on the Code of Virginia. He states that following VA code 2.2-3075.4(4) these documents cannot not be released.
That part of the code (which is part of the Virginia FOI regime) states as follows:
§ 2.2-3705.4. Exclusions to application of chapter; educational records and certain records of educational institutions.
The following records are excluded from the provisions of this chapter but may be disclosed by the custodian in his discretion, except where such disclosure is prohibited by law:
……………………
4. Data, records or information of a proprietary nature produced or collected by or for faculty or staff of public institutions of higher education, other than the institutions' financial or administrative records, in the conduct of or as a result of study or research on medical, scientific, technical or scholarly issues, whether sponsored by the institution alone or in conjunction with a governmental body or a private concern, where such data, records or information has not been publicly released, published, copyrighted or patented.
Three issues are immediately obvious. The first is that this part of the Code relates to educational records or the records of educational institutions, not people who may have worked for them. It says nothing about, and therefore presumably provides no exceptions for, the staff of such institutions.
The second is that the “custodian” of the records in question may release them at its discretion even if they would otherwise be exempt except where disclosure is illegal, and of course the university has agreed to disclosure in the terms of the order already made by the court. And yet Mann in his documents in support of his intervention uses the fact of the University’s agreement to release documents as a reason why he should be protected. But the custodian has discretion, i.e. it can lawfully make a decision to release without recourse to former employees, but Mann makes no mention of this in his papers submitted to the court.
The third is that this exception applies to information of a “proprietary” nature “in the conduct of or as a result of study or research”. The meaning of this appears to be clear. It refers to the ownership by the educational institution itself of information relating to study or research. Mann and his lawyers repeatedly refer to Mann’s “interest” in these documents. So far as I can see he has none. The university has already agreed to disclose the documents knowing that some might be exempt and knowing that it can flag as exempt those that it chooses. And yet Mann’s complaint in his pleadings is that that the University previously agreed that many documents were exempt from disclosure. (Yes, Dr Mann – that’s what the original order says and was for – to allow the University to flag some documents as exempt and for the court to decide whether they are in fact are exempt).
In my view Mann has no basis in law to suggest that this part of the code protects him or any proprietary rights that he claims to have in the information. Note that the exception relates to study and research, the very things that Mann was employed to do. I cannot say for certain since I have never seen Mann’s contract of employment but it would be incredibly unusual for an academic at a university not to have a contract that states that his research and study is the property of his employer. Note that we are not talking about publications here, but the everyday cut and thrust of study and research. That would seem to me to include any conversation Mann had with other scientists about climate change or any other matter touching on his discharge of his position as an assistant professor at this university. Thus it is almost certainly the case that Mann has no proprietary interest whatever in documentation he produced whilst an employee of UVA that was as a result of study or research. Of course none of Mann’s email musings that he now considers to be his property and “personal” would have occurred on the UVA email system but for his employment at that university.
The memorandum of Law in support of Mann’s intervention states that it seeks to stop the “upcoming and improper disclosure of thousands of his personal e-mail exchanges with professional colleagues”. The language of Mann’s documentation in support is inappropriate. He talks of the release of documents to “the very activist petitioners that are on a mission to scapegoat him”. There is so much wrong with this in the context of a FOI case and I am surprised that his lawyers allowed this phrasing to pass muster. It is completely irrelevant. The motive of the requester is not a relevant consideration and this is a central tenet of FOI regimes pretty much wherever they exist and certainly so in the US or the UK. One could make an FOI request stating on its face that the intention was to use any information disclosed to discredit the very public authority that is asked for the information. It doesn’t effect the obligation to disclose one iota. So why would a lawyer bother to include such improper language (in the context of relevant legal pleadings in these cases)? The only answer that shouts to any lawyer from the pleadings is desperation. Having, as we all have, seen a deal of Mann’s personality revealed over the years in various circumstances, all that can be said is that we see a pollution of the lawyer’s drafting with Mann’s feelings of persecution as an academic. This is a theme widely, but I suspect fruitlessly, posited by the utterly irrelevant (in a legal context) letters from Trenberth, D’Arrigo, Santer, and Bradley in support of Mann’s intervention and a theme we see regularly regurgitated by other scientists and warmists.
It must be accepted that one can have personal email exchanges with professional colleagues. We all do this since many professional colleagues are also friends or acquaintances. Emails thanking colleagues for a good night at their recent barbecue, or thanking them for the birthday card received by one’s wife or child, or arranging a round of golf. These are clearly personal. But they are also trivial and in reality would be of no interest whatsoever to anyone. Remembering that the documents are to be disclosed under seal and under the eyes of the court and only two attorneys from ATI, one would imagine that such emails would be glossed over and that no-one would be wasting their time arguing for their public release.
But other than emails like the examples above between “professional colleagues”, what other correspondence is “personal”? Well, I can’t think of any myself. Perhaps Mann and his lawyers are blurring the distinction between personal emails and academic freedom. Certainly the flavour of Mann’s pleading is that there should be an exemption for academic freedom and that in this respect those documents should be considered as personal. But if an email is sent or received from those colleagues on the “work” email system then there is no expectation of privacy. That is clearly the case for Mann in the context of UVA’s policies and, it would appear, his own employment contract with his former employers.
But Mann is clearly intent on seeking to block even the court from seeing these emails. Not the public, but the court, and two lawyers who are bound by their professional obligations to keep secret any information they have seen that is not subsequently released – professional men who risk being struck off if they breach this obligation. Let’s not forget that Mann’s intervention seeks to excuse these documents from production to a judge, let alone the public. Judges, particularly in criminal cases, are often required to see correspondence or documents in order to decide whether they can be admitted in evidence. It is often the job of a judge to examine documents that are subsequently disallowed as submittable evidence and which the judge is required to exclude from any assessment of the case or weighing of the evidence, even though he has read them. That is what judges do. But Mann is seemingly determined to ensure that not even a judge gets to see what he was writing about when employed at UVA.
Further, Mann’s lawyers exhibit to their documentation a copy of the University of Virginia’s policy in respect of disclosure of university records. The part of the policy the rely on is, in fact, no more than a rehash of the Virginia Code, 2.2-3705.4(4) set out above. The wording is pretty much identical. In addition Mann’s lawyers highlight clauses in that UVA policy relating to the remedy available to persons who have been denied their rights under the policy. But those clauses appear to relate to someone seeking information from the university, not someone who used to work there who is seeking to block disclosure of his communications whilst an employee.
Mann further states that release of documents will damage the reputations of dozens of scientists around the world (although he does not specifically include himself in this group). Now, if you are a judge, and bearing in mind that the existing court orders require only that documents be examined within the jurisdiction of the court and not in the public arena, what are you going to think about this surprising statement? It can only mean what Mann says. If you see these documents reputations will fall. If I were the judge in this case that statement in support of an attempt to block not only release to the public, but scrutiny under the supervision of the court, would cause a raised eyebrow – it is not a huge leap of the imagination for some to say that this is pretty much a statement, on its face, that there is something in there that Mann doesn’t want anyone to see – perhaps the concern is that if the court sees them it will immediately accept that it is manifestly in the public interest for them to be released to the public. The reason for my view in this regard is that if I were presenting a case that there should be an exception in respect of academic freedom, or that some of the documents should be classified as personal, then I would argue that the consequences may or are likely to result in…I would never, ever, say will result in… I wouldn’t be referring to any actual consequences of disclosure but possible consequences. And of course in making an argument for academic freedom or for a classification of some documents as personal my arguments would be framed around the good reasons why this should, in general, apply. That is not being done here. Mann has unequivocally stated, in court documents, that disclosure will result in a loss of reputations for dozens of scientists.
In short Mann’s intervention seems to me to be destined to fail. Of course he has secured a delay in the release of documents. And but for this intervention the documents would have been released about now. There is a hearing listed in November to decide on his intervention application. Once this has been disposed of (which I am sure it will be) then no doubt the documents will be required to be released immediately.
Perhaps Mann has an interest in delay.
There is undoubtedly a theme here that is starting to resound throughout the US and the UK. Scientists are starting to realise that we, the public, are legally empowered to see what they have been up to. As the wonderful Clive Dunn used to say in Dad’s Army – they don’t like it up ‘em.