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Climate Change and the Freedom of Information Act at U.Va.

Update

University followed General Assembly process in response to FOI for review of faculty member's 34,000 e-mails

May 25, 2011 -- In argument before the Circuit Court of Prince William County yesterday, counsel for the University represented to the Court that the University had been following the process established by the General Assembly for responding to complex Freedom of Information Act requests seeking voluminous records, where, as here, the request is so broadly worded and lengthy (11 pages).

See http://www.virginia.edu/foia/climatechange/ which demonstrates that the University's Office of General Counsel has been in frequent and regular contact with counsel for the requesters, as encouraged by state law where there are disputes, seeking to clarify their request and to work out a reasonably manageable process that would respect the mandates of both federal and state law. In accordance with the resulting agreement that had developed from the professional cooperation of counsel for both sides, the University began review of the records and recently provided counsel for the requesters with the first responsive records. That delivery was made, pursuant to the working agreement with counsel for the requestors, notwithstanding their having filed suit.

Judge Gaylord Finch took all of the substantive issues under advisement and said he would issue a ruling by June 15. He commented from the bench on how impressed he was at how much progress had been made on the request.

The court is expected to decide whether, as a matter of state law, the University is entitled to reimbursement for the cost of reviewing documents to be sure the records are both responsive and that disclosure will not violate specific federal and state law protections, or whether this cost must be borne by the taxpayers of Virginia.

Also, in their continuing cooperation in trying to manage an incredibly huge and costly project, counsel for the parties submitted to the Court a proposed order, which was accepted by the Court, stipulating to mutually agreeable deadlines.

Summary

In November 2009, a computer at the University of East Anglia (UK) Hadley Climatic Research Unit was hacked and emails of scientists in the unit were made public. Climate change skeptics soon began to use portions of the illegally obtained material as evidence of alleged scientific fraud. One of the authors of the hundreds of hacked files and emails was Michael Mann. Mann is currently a member of the faculty of the Department of Meteorology at Pennsylvania State University, where he has been since 2005. Before taking that position he was a member of the faculty at University of Virginia's environmental sciences department in the College and Graduate School of Arts & Sciences from 1999 to 2005.

Investigations at both the University of East Anglia and Penn State found no evidence of wrong-doing by Mann or any of the other scientists who were authors or recipients of the hacked emails.

In December 2009 the University of Virginia began receiving requests under Virginia's Freedom of Information Act (FOIA) for emails of Mann and retired professor Patrick Michaels. The requests came from individuals and organizations on both sides of the climate change debate, and the University responded to all of them consistently and in line with the requirements of the Act. In all cases in which records were requested, the University agreed to search for the documents but also sought to recover the costs of searching for and providing the records, pursuant to the law and consistent with University policy.

The requests to U.Va. picked up considerably after Attorney General Ken Cuccinelli issued Civil Investigative Demands (CIDs) to the University in April 2010 seeking much of the same information that previously had been sought through FOIA. U.Va. challenged and continues to challenge the CIDs in court on grounds that have nothing to do with access to documents to which the public is entitled pursuant to law.

Published accounts of the University's response to these FOIAs have perpetuated two persistent misstatements of fact: (1) that the University was hiding the emails of Mann, who has published research supporting the idea that climate change is partially caused by human activity, and (2) that the University "handed over" emails from Michaels, a retired member of U.Va.'s environmental sciences faculty who is now a senior fellow in environmental studies at the Cato Institute and a Distinguished Senior Fellow in the School of Public Policy at George Mason University and who has been skeptical of human-influenced climate change.

Here are the facts:

  • When the first request was made for Mann's emails in December 2009, the University performed a thorough search of central email archives and concluded that Mann's emails were no longer stored in them. This was not a surprise as normal procedure is that a faculty member's email is purged when he or she leaves the University. In the course of researching records potentially responsive to the CIDs, which were broader than previous records requests, the University discovered a previously unknown surplus computer stored in the environmental sciences department that retained electronic documents relating to Mann.
  • The University recognizes that faculty emails composed, sent, and retained in the conduct of official University business are public records under the Virginia Freedom of Information Act. (Of course, many public records under Virginia law are nonetheless subject to exemptions that ensure compliance with confidentiality, privacy or other state or federal laws and requirements.) U.Va.'s challenge to the CIDs in court is on grounds that are not related to access to documents under FOIA.

The questions and answers below clarify some of the inaccurate statements that have been made about the University, the FOIA process and how we have responded to various requests under the Act. In addition, we have posted all substantive correspondence related to FOIA requests for both Mann's and Michaels' email and other materials related to the issue. Review the correspondence.

FAQ

Q.How does the University handle Freedom of Information Act requests?

A.Requests under the Virginia Freedom of Information Act (FOIA) are referred to the University's Office of Public Affairs. Public Affairs reviews each request, determines an appropriate response under FOIA and tracks the process until the project is completed. The office works with records custodians throughout the University to compile and supply necessary records and to otherwise comply with FOIA requirements.

Q. How are Freedom of Information Act requests different from the Attorney General's Civil Investigative Demands?

A. Freedom of Information Act: Virginia law provides for any citizen of the commonwealth, or any representative of a media organization that circulates in Virginia or broadcasts in or into the state to have access to public records. There are a number of exclusions, including personnel records and certain academic records. The law allows agencies to recover their costs for "accessing, duplicating, supplying or searching for the requested records." As authorized by law, U.Va. asks for advance payment of these costs when they meet or exceed $100.

Read more about the Virginia FOIA.

A. Civil Investigative Demand: A Civil Investigative Demand (CID) is a government action that is the equivalent of a subpoena. The Attorney General states that the current CIDs seek records in order to discover whether certain grants received by Michael Mann may have violated Virginia's Fraud Against Taxpayers Act, Va. Code §§ 8.01-216.1 through 8.01-216.19. The University is asserting its rights to challenge the CIDs in court on a number of grounds including both a lack of articulated cause to believe that any fraud was committed and academic freedom.

Q: Who is making these requests for information about Michael Mann and Patrick Michaels?

A. The requests have come from persons and entities on both sides of the climate change debate, including various individuals, Greenpeace, the Competitive Enterprise Institute and the Environmental Law Center at the American Tradition Institute. The University has responded to each request consistent with its procedures and the requirements of law.

Q: Why did the University initially state that it had emails for Patrick Michaels but not for Michael Mann?

A. The difference relates to the policies for faculty who retire from the University (e.g., Michaels) and those who leave to take other positions (e.g., Mann). Retired faculty such as Michaels may retain their email accounts upon their request, but the accounts of those who resign to take positions elsewhere, such as Mann, are supposed to be deleted after they successfully transition to their new institution.

Q: Why did the University say it didn't have any Mann emails and then say it did?

A. After the original request from Del. Bob Marshall in November 2009, engineers did a thorough search of the University's central e-mail system. None of Mann's e-mails were located during that search. In the course of researching records potentially responsive to the CIDs, which were broader than previous records requests, the University discovered a previously unknown surplus computer stored in the environmental sciences department. That computer retained electronic documents relating to Mann.

Q: Why hasn't the University produced all of the requested records?

A. The University has consistently stated that it will produce all responsive, non-exempt records that are public documents if those requesting them are willing to pay the reasonable costs of supplying the records to which the University is entitled under FOIA. Virginia's Freedom of Information Act provides for agencies to recover their costs in "accessing, duplicating, supplying or searching for the requested records." The law does not require the University to expend considerable time and effort in responding to complex FOIA requests without reimbursement of its costs. Under such circumstances, failure by the University to require such reimbursement would be unfair to the taxpayers of Virginia, who otherwise would have to bear the costs of fulfilling these private requests.

Q: Did U.Va. give Michaels' emails to Greenpeace?

A. No. After a series of emails and narrowing of the group's request to reduce its costs, and a letter confirming what the amount of those costs would be, U.Va. heard nothing more from Greenpeace.