Climate scientist’s privacy victory may prove a loss for journalists

Court ruling limits access to public information in Virginia

After deliberating for months, late last week the Virginia Supreme Court ruled in favor of climate scientist Michael Mann in his quest to maintain the privacy of his emails against a Virginia legislator and conservative think tank that sought to access his records using Virginia’s freedom of information laws.

As I wrote last month, the trial and the court’s verdict, has bigger ramifications than the privacy of Mann, who is perhaps best known for charting the “hockey stick graph,” a plot of temperatures demonstrating an uptick in warming. Organized by the Reporters Committee for Freedom of the Press, 17 news organizations, including National Public Radio, Dow Jones, and The Washington Post, submitted an amicus brief in November, supporting the group’s rights to Mann’s emails, on the grounds that such a verdict would protect broad freedom of information laws.

Instead, the high court ruled that while Mann’s business emails are a matter of public record, personal emails—including correspondence with other scientists—constituted proprietary information, therefore exempt from FOIA laws. It’s a win for both Mann and fellow scientists employed by public universities—who say they have increasingly faced public information requests that can be cherry picked to discredit their research and interrupt their studies. Peter Fontaine, Mann’s lawyer, called the verdict “a strong affirmation of science and those who conduct it,” while Michael Halpern, a program manager for the Center for Science and Democracy at the Union of Concerned Scientists, an advocacy organization designed to help researchers deal with paper trail blockades to their research, welcomed the verdict as a shield against undue inquiries that might impede scientists.

“The Court was right to protect scientists’ ability to pursue tough research questions free from threats or intimidation,” he wrote. “Freedom of information laws are meant to keep government accountable, not to enable the harassment of scientists.

The court explained its opinion as, in part, a means of protecting public universities from the disadvantage of being beholden to public information laws that private institutions aren’t subject to. “We hold that the higher education research exceptions’ desired effect is to avoid competitive harm not limited to financial matters,” the verdict read.

But the verdict also introduces additional obstacles for journalists trying to obtain information on public institutions. Firstly, it allows institutions to charge for employee time for information that must be redacted—a practice that can run hundreds of dollars per hour if a lawyer is tasked, effectively pricing community publications and small newspapers out. Though the court’s definition of what constitutes proprietary information, and is exempt from FOIA requests, is narrow, it includes important caveats. Exempt from FOIA are, “such data, records, or information [that] are not the institution’s financial or administrative records,” a prospect Emily Grannis, a legal fellow with the Reporters Committee for Freedom of the Press, finds troubling.

“The supreme court did a nice job of pointing out that it is trying to keep this definition narrow because the point is public universities trying to protect their competitive advantage,” said Grannis. “But when you are talking about getting information from a public university, what you want is the budgets—you’re looking for information about how it is operating and [how] public funds are being spent.”

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Alexis Sobel Fitts is a senior writer at CJR. Follow her on Twitter at @fittsofalexis. Tags: , ,