Anthony Watts says (archived here) that today's Supreme Court decision (in Virginia) to reject an appeal by the American Tradition Institute to ferret through ancient emails is, as he put it in the headline: "a blow to open science". I differ, I call it a blow to those who are trying to stifle academic freedom and open science.
Anthony thinks that science is only open if he can read the scientists' emails. Or more likely, if he can read the interpretation of snippets of other people's emails as made by smear-merchants and disinformers (that was prophetic, see update below). Anthony is not very knowledgeable when it comes to science.
The issue as I understand it, is an appeal by ATI against a circuit court decision. It's mainly about ATI wanting to gain access to Michael Mann's emails, that he sent or received during the six years he spent at the University of Virginia.
Here is the summary of the decision of the Supreme Court of Virginia (my paras and bold italics):
130934 American Tradition Inst. v. Rector and Visitors 04/17/2014
The circuit court was correct in denying a request for disclosure of certain documents under the Virginia Freedom of Information Act. The purpose of the higher education research exemption under Code § 2.2-3705.4(4) for "information of a proprietary nature" is to avoid competitive harm, not limited to financial matters.
The definition of "proprietary" in prior case law, that it is "a right customarily associated with ownership, title, and possession, an interest or a right of one who exercises dominion over a thing or property, of one who manages and controls," is consistent with that goal and the circuit court did not err in applying that definition. Viewing the facts in the light most favorable to the university that prevailed below, it produced sufficient evidence to meet each of the higher education research exemption’s seven requirements.
Also, in the context of the Code § 2.2-3704(F) provision allowing a public entity to make reasonable charges for its actual cost incurred in accessing, duplicating, supplying or searching for requested records, "searching" includes inquiry into whether a disputed document can be released under federal or state law, and this statute permits a public body to charge a reasonable fee for exclusion review. The circuit court's judgment excluding disputed documents and approving such cost recovery is affirmed, and final judgment is entered in favor of the university.
The full decision is here. It makes for interesting reading. In it, the court noted that:
On January 6, 2011, American Tradition Institute and Robert Marshall (collectively, "ATI") sent a request to UVA, a public university, seeking all of the documents that "Dr. Michael Mann produced and/or received while working for the University . . . and otherwise while using its facilities and resources . . . ."
ATI wanted the lot. It was a pure, unadulterated fishing expedition. They didn't have a clue what they were looking for or what they might find. They just wanted all the documents produced or received by Professor Mann. Bear in mind that the newest document would have to be nine years old and the oldest would be fifteen years old. And at the time, to comply with VFOIA, the university would have had to provide the information within five days.
Now Michael Mann was busy during his time at UVA (from 1999 to 2005). The university wrote to ATI and said they found 34,062 "potentially responsive" documents. They got that down to 8,000 and then worked through 1,000 of those before the ATI's $2,000 prepayment was all used up. They are very efficient workers at UVA. They said they'd keep going if ATI paid up the balance of the original cost estimate ($8,500). Which I think it did.
But then there was a bit more to-ing and fro-ing between UVA and ATI. Before all the material was provided to ATI, Michael Mann intervened. He argued that the University could not sufficiently protect his interests in privacy, academic freedom, and free speech. He wasn't objecting to published material and related. What he was arguing was that his personal correspondence was just that - personal and that his other emails should be exempt under the "proprietary" definition. Or at least that's how I understand it. There's a lot of legalese. There was a lot more to the arguments, including what constitutes "proprietary", which definition the press was keen to narrow. The other argument related to who should bear the costs of getting the information.
Anyway, the upshot seems to be that scientists can continue to communicate by email, at least in Virginia, and be open with their colleagues knowing that the grubby little denier bloggers won't easily purloin snippets of their conversations and twist them beyond recognition. At least until and unless there is a different definition of proprietary in Virginian law.
Moreover, provided no-one steals them. Anthony Watts yesterday wrote another article on the same subject, in which he said:
With Mann, it’s all about delaying the inevitable, unless of course somebody like the hero of Climategate “FOIA” decides to take matters into their own hands and stop this abuse of the legal system and FOIA law by making an email dump. I don’t underestimate that possibility.
It's heroic to steal personal property in deniersville (just like it's heroic to pretend to be a dog). But only if you're a science denier. (I expect Anthony will find his door being knocked upon if anyone does steal emails of climate scientists in the USA.)
Michael Halpern has written about the Supreme Court decision and the implications, at the Union of Concerned Scientists.
There's also a short discussion of the finding by L. Steven Emmert, who blogs about court findings and appeals. I've archived it here for future reference, because there doesn't seem to be a way to link directly to the article.
Eli Rabett has written about this too.
Anthony Watts has just done some more smearing with the help of Eric "eugenics" Worrall. He's cut and pasted snippets from two stolen private emails, reversing them, to make it appear as one email and to make it look as if it's something it's not. The two emails don't involve Michael Mann. They are a query from one scientist to another, asking the first scientist if, under the (then) new FOI laws in Britain, he would be required to hand out to all and sundry computer code prepared (as I understand it) by the second scientist. The reply was that code might be exempt under property rights provisions. But Anthony and Eric manage to turn it into a smear. That example is a good illustration of why private emails should be kept private and out of the hands of smear merchants and disinformers. (The article is archived here.)
Other blog articles
Michael Halpern has written about the Supreme Court decision and the implications, at the Union of Concerned Scientists.
There's also a short discussion of the finding by L. Steven Emmert, who blogs about court findings and appeals. I've archived it here for future reference, because there doesn't seem to be a way to link directly to the article.
Eli Rabett has written about this too.
WUWT update - another email smear
Anthony Watts has just done some more smearing with the help of Eric "eugenics" Worrall. He's cut and pasted snippets from two stolen private emails, reversing them, to make it appear as one email and to make it look as if it's something it's not. The two emails don't involve Michael Mann. They are a query from one scientist to another, asking the first scientist if, under the (then) new FOI laws in Britain, he would be required to hand out to all and sundry computer code prepared (as I understand it) by the second scientist. The reply was that code might be exempt under property rights provisions. But Anthony and Eric manage to turn it into a smear. That example is a good illustration of why private emails should be kept private and out of the hands of smear merchants and disinformers. (The article is archived here.)
From the WUWT comments
Many of the commenters at WUWT don't have a clue. Here are a couple of comments from Anthony's article of yesterday (archived here):
bushbunny has got the situation topsy turvy and says:
April 16, 2014 at 7:21 pm
I thought the university of Virginia were suing him because they want their grant back? Oh the result will be interesting, as it may affect Mark’s case too?
Proud Skeptic is wrong, and needs to learn about what FOIA covers and what is exempt, and maybe think about the result of allowing all government-funded information to be freely available to everyone at any time when he or she says:
April 16, 2014 at 8:14 pm
Maybe I’m naïve but isn’t public money funding Mann’s research? IMHO, when the public is paying the freight then EVERYTHING is public. if you want privacy, then use private money…preferably your own.
Brad hatches a conspiracy theory about the seven Supreme Court Judges and says:
April 17, 2014 at 7:53 am
Sounds rigged, have to wonder how many judges, or family members, or political contributors, are alumni?
Something stinks…. And Lew-paper won’t make the smell go away.
tim maguire didn't read the decision or the bit about "not limited to financial matters" and says:
April 17, 2014 at 7:42 am
Publicly funded educational research is specifically exempted to protect financial interests? Wouldn’t the right of possession be held by the people of Virginia?
What a strange outcome.
David in Michigan finds the decision correct and says:
April 17, 2014 at 8:01 am
After reading the decision by the court, I agree that their interpretation is correct. It’s disappointing, yes, but reasonable and coherent. I also note the caveat by one of the judges at the end of the decision write up that there might be unintended consequences of applying the definition of the word “proprietary” to other sections. So it goes….
Paul Coppin says:
April 17, 2014 at 8:06 am
On a quick read through and without looking at the referenced cases, I note two things: ATI probably argued the case badly, and the ruling is a cautious ruling. Th nut of the last part is in the court’s caution over the meaning of “proprietary”, the ambiguous intent of its meaning as derived from the Va legislature in statute (which the court has asked the legislature to clarify), and the consequence, that because of this ambiguity, the court was obliged to follow the narrower definition established by case law in respect of the specific Codes in the VAFOIA. The competitive issue of public schools vs private schools is an interesting wrinkle. The decision is not a failure of the court to uphold access to publicly funded information, it’s a failure of the state legislature to properly construct statutes with consistent common use terminology.
