P.Wm. Climate Change Case Takes Center Stage: By Tom Jackman, Washington Post, March 21, 2012

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.

You gave ‘em to him, you gotta give ‘em to us, basically. And a number of well-informed FOIA experts in Virginia say that ATI is right.

“I would agree with that,” said Megan Rhyne, executive director of the Virginia Coalition for Open Government. “Once you turn it over in one venue, you’re deciding to give it out.”

Kevin Goldberg, a First Amendment and FOIA lawyer in Arlington, said, “I can see that the balance is now tipped in [ATI’s] favor. Now it’s up to the University to prove they can still withhold the material.”

But Mann thoroughly disagrees, as do his lawyers.

“I’m a bit surprised that anyone professing to be familiar with the law would believe that [ATI’s] argument has any merit at all,” Mann said Tuesday in an e-mail. “I am not a lawyer, but I have legal experts advising me on this matter, and they say the matter is quite clear: There is no waiver where the parties have a common interest in the documents, including a shared copyright interest and a shared proprietary interest in protecting your scholarly works under the scholarly works exemption to FOIA statute. If the records were not my emails it would be a different story. Of course, the records are my emails. ATI’s argument is way off-base and, indeed, quite disingenuous.”

So the stage is set.

The case is scheduled for argument on April 16 in Manassas. In addition to ATI, Del. Robert Marshall (R-Prince William) is a plaintiff in the case, so all the Prince William judges recused themselves. Initially, they appointed retired Fairfax Circuit Court Judge Gaylord Finch, but he has now recused as well.

Retired Arlington Circuit Court Judge Paul Sheridan has now been appointed. And whichever way he rules, the case will likely begin its ascent up the appeals court ladder and is poised to make law on how Virginia institutions may use FOIA to withhold from some and give to others. Not to mention create an international stink if Mann’s e-mails provide fuel for those who claim he has wrongly manipulated climate change data, an accusation for which he has previously been cleared.

The case began quietly in January 2011, with a FOIA request to U.Va. by Marshall and ATI for e-mails to and from Mann and 39 people, involving five grant programs. Seven months later, U.Va. produced almost 1,800 e-mails, but said it was withholding another 12,000 e-mails which they argued were not public record, or were exempt under Virginia FOIA law 2.2-3705.4(4).

ATI went to court to challenge the exemption claim. Mann, who now works at Penn State, hired his own lawyer and asked to be allowed to intervene in the case, in the event that U.Va. doesn’t adequately protect his interest in free expression.

“You need to be able to bounce ideas off each other,” Mann said, “that aren’t always ready for prime time,” explaining why he was fighting to keep his correspondence secret.

Finch allowed Mann into the case. And he told both sides to figure out a third party who could review the withheld documents and determine whether they met the FOIA exemption for “Data, records or information of a proprietary nature produced or collected by or for faculty or staff of public institutions of higher education.”

But during a break in that November hearing, one of the lawyers for ATI, David Schnare, approached the lawyers for U.Va. and asked if they had already given the e-mails to Mann. According to Schnare’s brief, the lawyers avoided the question, implying “yes,” and U.Va. now admits they have provided the e-mails to their former professor.

Schnare then cited a Virginia Attorney General’s opinion from 1983 that once a public body disseminates any record, “those records lose the exemption accorded by” FOIA. Federal case law appears to be clearer that “selective disclosure…is offensive to the purposes underlying the FOIA and intolerable as a matter of policy.”

U.Va.’s lawyers, Richard C. Kast and Madelyn F. Wessel, responded that Schnare’s argument was “preposterous,” saying there was “no evidence…that could possibly demonstrate that the University intended to waive its statutory right not to disclose.” They noted that Mann was the author of the e-mails and not an adverse party — essentially, sharing information with a teammate as opposed to the other side.

Rhyne, an authority on Virginia FOIA law, said, “There’s no two-tiered access [to material sought] under that exemption,” meaning the ability to withhold from some and give to others. She said, “U.Va. bungled this from the start. They kind of operated by their own rules, they didn’t respond in time to the initial request, and now they’re trying to change the rules after the barn door is open.”

Several FOIA experts noted that the law uses the word “discretion” in almost every section granting an exemption from disclosing documents. It gives, say, a police department discretion to withhold investigative reports, but it can release them if they like.

But all agreed that there is no discussion in the law of the “discretion” to release material to one party, and withhold it from another. Virginia case law is silent. This case could well decide it.

Mann said in November, “This case isn’t about FOIA. It’s a partisan witch hunt.”

But Rhyne and the courts have said that the status of the requester, and whatever your opinion on global warming, is irrelevant. It’s up to a public body to decide whether to release taxpayer-funded data. And now it’s up to the courts to decide if a public body can release that data to one side, but not the other.