Using FOIA as a tool for harassment gives pause to those who advocate for broad and strong legislation for public access. “There’s always a concern with public records about misuse, but we don’t typically legislate with the risk of misuse; we aim to punish the people who misuse the law rather than acting in a sweeping way that restricts everyone’s access,” says Emily Grannis, a legal fellow with the Reporters Committee for Freedom of the Press.

Strong press freedom laws are in the interest of newspaper legal teams, who are often called in to advocate for stonewalled reporters, says Jerald Fritz, who signed onto the brief representing Allbritton Communications and Politico, where he is general counsel. “The reporters’ interests are the same as that of the lawyers,” said Fritz. “Whenever the press files a freedom of information act we want it as broadly interpreted as possible.”

The desire for information to be public naturally aligns the press with institutions like the Energy & Environmental Legal Institute, who see emails as a tool for revealing what they say are ulterior motivations and data manipulation of climate scientists. Though David Schnare, an attorney for the Energy & Environment Legal Institute, says that legally the emails don’t fit into the exemption in Virginia public information laws for “proprietary information,” the real issue is that scientists who conceal their emails are already demonstrating murky ethics. “If they’d been civil, attentive, intelligent in their emails,” says Schnare. “If they’ve behaved in a manner that met the university standard of ethics for scientists, then they wouldn’t care about the emails—they would just send them out.”

But Peter J. Fontaine, the Philadelphia-based attorney representing Mann, argues that a sweepingly broad interpretation of FOIA doesn’t consider the “need for a zone of privacy” in academia.” Written debate between researchers, says Fontaine, isn’t data, but is crucial to pursuing scientific inquiry. If their correspondence isn’t protected, researchers will self-censor, and perhaps even be hesitant to work with those subject to the increased scrutiny. “Who in a private university is going to want to correspond with a colleague at a public university if they know that their correspondence could be posted on the Web?,” says Fontaine.

If you'd like to get email from CJR writers and editors, add your email address to our newsletter roll and we'll be in touch.

 

More in The Observatory

The end of obesity, sort of

Read More »

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