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Academic Freedom And Competitiveness

Court ruling protects science-related e-mails of researchers at Virginia universities from release to public

by Cheryl Hogue
May 5, 2014 | A version of this story appeared in Volume 92, Issue 18

Credit: Patrick Neil
UVA prevailed in a freedom of information case said to have national ramifications for academic freedom.
The Rotunda on the campus of the University of Virginia.
Credit: Patrick Neil
UVA prevailed in a freedom of information case said to have national ramifications for academic freedom.

Scientists can send scholarly e-mails to academic colleagues at state universities in Virginia without fear that their communications might end up publicly disclosed. That’s a major upshot of a recent decision by the Virginia Supreme Court in a closely watched case about academic freedom at public institutions of higher learning.

The court’s April ruling examines how the Virginia Freedom of Information Act applied to a request for e-mails of a researcher who once worked at the University of Virginia. UVA is a state-supported institution. The court concluded that the researcher’s personal correspondence, including conversations with other scientists, is proprietary and UVA does not have to disclose it (C&EN, April 21, page 7).

The case is politically charged. It involved a free-market activist organization skeptical of human-caused climate change seeking communications of an outspoken climate researcher.

Requesting the e-mails was the American Tradition Institute, which recently changed its name to the Energy & Environment Legal Institute (E&E Legal). It opposes efforts to limit greenhouse gas emissions, such as renewable energy initiatives, calling them an “energy-scarcity agenda.”

As part of its efforts, E&E Legal seeks unvarnished e-mail exchanges among climate scientists to cast doubts on what it terms “alleged catastrophic man-made global warming and related policy demands.” The institute places the e-mails and other documents it obtains through records requests on its website for public viewing.

The institute asked UVA for communications of Michael E. Mann, who was an assistant professor of environmental science there from 1999 to 2005. He developed the “hockey stick” graph showing how global temperatures have changed over thousands of years. Mann’s work has faced years of politically motivated attacks but has held up to scientific scrutiny. Mann is now a meteorology and geosciences professor at Pennsylvania State University. Controversial e-mails exchanged by Mann and a number of other climate researchers were stolen from the University of East Anglia, in England, and made public in 2009.

The recently concluded lawsuit, however, did not touch on climate-change issues. Instead, it focused on how a Virginia statute designed to ensure government openness applies to the e-mails of a scientist working for a state university.

E&E Legal had argued that Mann’s e-mails were fair game for disclosure under Virginia’s open records law. That statute, the institute contended, protects only information that gives UVA a competitive advantage and, if disclosed, would financially injure the university.

The state’s high court, however, rejected that proposition as too narrow. Competitive harm to Virginia’s public colleges and universities is not limited to financial matters, the court says in its unanimous decision. “Competitive disadvantage implicates not only financial injury, but also harm to university-wide research efforts, damage to faculty recruitment and retention, undermining of faculty expectations of privacy and confidentiality, and impairment of free thought and expression.”

“The court could not have been clearer about why they were rejecting this bad-faith attack on science and scientists,” Mann tells C&EN.

On the surface, the institute’s case against UVA was about technicalities in the Virginia open records statute. The Virginia high court’s decision won’t directly affect other states, which have freedom of information laws containing different provisions.

Nonetheless, the ruling has implications for colleges and universities, public and private, both in and beyond Virginia, says Ada Meloy, general counsel at the American Council on Education. The council represents presidents of some 1,800 accredited, degree-granting institutions in the U.S.

The council filed a friend-of-the-court brief in support of UVA in the case. Five other higher education associations and the National Academy of Sciences signed on to that brief. In the brief, the groups argued that the disposition of the case will have impacts beyond the free exchange of communications and ideas in Virginia’s public institutions of higher learning.

An NAS spokeswoman says the academy, which rarely involves itself in legal cases, took a position in this case because its outcome is important to the entire U.S. research system. The academy takes great care in deciding whether to weigh in on a lawsuit, Meloy adds.

“We needed to speak up and make sure the court understood that this was not something that was parochial to Virginia but is important nationally,” Meloy tells C&EN. “Researchers and faculty members with a private institution could decide they did not want to risk having candid exchanges with colleagues in public institutions.”

UVA President Teresa A. Sullivan echoes Meloy’s point. “The nature of science today often requires collaborations within and among large teams of scientists, engineers, physicians, and others,” Sullivan says. “These conversations necessarily include provisional hypotheses, discussions of how data are properly interpreted, and how conclusions can most accurately be stated. These stages of the research precede the point at which the scientists are ready to face their peers and the public with their published results.”

Researchers need “safe collaboration space” for deliberating, refining, and challenging ideas, adds Michael Halpern of the Center for Science & Democracy at the Union of Concerned Scientists. If universities and colleges can’t provide this, scientists will be less willing to investigate tough questions.

But state institutions of higher learning face the challenge of striking a careful balance, says Barmak Nassirian, director of federal policy analysis for the American Association of State Colleges & Universities. The group was among the signatories to the educational associations’ friend-of-the-court brief.

State colleges and universities, Nassirian says, must respect the legitimate demands for accountability—through records requests—from the public that supports them. At the same time, these institutions must uphold scholars in objective, methodical approaches in determining basic facts. Yet sometimes, he points out, “the truth can be politically charged and controversial.”

E&E Legal, meanwhile, points out that news media outlets supported its arguments in the case. The media, says David W. Schnare, the institute’s lead counsel, “made it clear that the kind of secrecy the university wants is not in the best interest of either the state or its citizens.”

While the Virginia case involving UVA and Mann is settled, E&E Legal remains embroiled in a similar public records dispute in Arizona. In late 2011, the group asked the University of Arizona for what it describes as “e-mails relating to the notorious global-warming ‘hockey stick’ and the group that made it famous, the Intergovernmental Panel on Climate Change.”

At issue are e-mails of University of Arizona professors and climate researchers Malcolm Hughes and Jonathan Overpeck, both of whom had e-mails purloined from the University of East Anglia and made public. The university released some information to E&E Legal but withheld many documents. In September 2013, the institute filed suit under the Arizona public records law. It is asking a state court to force the university to turn over undisclosed e-mails. The case is pending.

As this case plays out, the Union of Concerned Scientists is urging every U.S. public institution of higher learning to determine proactively how it interprets its state’s open records law. Each institution should explain to employees how it will respond to requests for e-mails and other documents.

In addition, lawmakers in every state would do well to examine public records statutes and amend them, as needed, to protect academic freedom, Halpern says. “Freedom of information laws are meant to keep government accountable,” he says, “not to enable the harassment of scientists.”


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