In the mid aughts, Penn State climate scientist Michael Mann was best known as the man responsible for ‘the hockey stick graph,’ a sharply upturned curve plot, showing the rise of temperatures due to global warming. Mann’s plot became the iconic image of climate change, featured in An Inconvenient Truth and printed onto a poster-sized ledger for the report of the UN’s Intergovernmental Panel on Climate Change.
But in recent years Mann has become known for his public battles against climate change-denial interest groups seeking opportunities to discredit his research. When the National Review called him “the Jerry Sandusky of climate science” he took them to court for defamation. He’s also faced a fraud investigation by former Virginia State attorney general Ken Cuccinelli, which was tossed out of the state supreme court two years ago. Mann’s 2012 book, The Hockey Stick and the Climate Wars: Dispatches from the Front Lines, chronicles years of rightwing interference.
A verdict is expected soon in one of Mann’s cases, a trial winding through the Virginia courts that, oddly, pits him against the interests of the press. Mann is challenging the American Traditions Institute in court—it has since changed its name to the less charged “Energy & Environment Legal Institute”—after the group attempted to obtain access to his email through a FOIA request. Mann argues that his emails constitute “proprietary information,” a special exemption granted to research institutions under Virginia state law. But after an appellate court issued a strong finding, broadly defining “proprietary information” in a way that would make almost any university document—and potentially government documents—exempt from public release, the press took notice.
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.
“By defining an exemption to the Virginia Freedom of Information Act (‘VFOIA’) as broadly as the lower court has done, this Court Would be, in effect, removing almost all public documents from the ambit of the records law,” reads the brief. By exempting Mann’s emails from public release, the group argues, the court is setting what journalists see as a dangerous precedent—making it much more difficult to gain access to public records.
But private correspondence is also a powerful tool for slandering climate data. In November of 2009, a hacker breached the servers of the University of East Anglia, swiping thousands of emails from inboxes of scientists in the Climactic Research Unit. Excerpts were posted to the Web, skewering the work of the researchers in a scandal now referred to as “ClimateGate.” The quotes had been cherry-picked and were taken out of context. But in the aftermath, public belief in global warming waned.
Authorities never located the ClimateGate perpetrator, but employees studying climate science at public universities are facing probing from public records requests that takes a similar, albeit legal, form. Researchers say they are increasingly subject to freedom of information requests that, rather than gathering data for public disclosure, take the form of fishing expeditions for smear campaigns. In a two-part series in Climate Wire, Stephanie Paige Ogburn reports that the deluge has grown such that that researchers are increasingly turning to organizations like the Climate Science Legal Defense Fund, the Union of Concerned Scientists, and Public Employees for Environmental Responsibility, all designed to support scientists managing the onslaught.
In March of 2012, The Washington Post ran an editorial criticizing this particular usage of FOIA, arguing that allowing records requests to be used as harassment needlessly hinders science.
“Academics must feel comfortable sharing research, disagreeing with colleagues and proposing conclusions — not all of which will be correct,” wrote the Post, adding that making correspondence subject to public scrutiny “discourages the sort of scientific inquiry that, over time, sorts out fact from speculation, good science from bad.” (The Post has also run two other editorials criticizing former Virginia State Attorney General Ken Cuccinelli’s attempts to investigate Michael Mann for fraud.)
The Post’s editorial board operates independently from the newspaper’s legal team. But, since the editorials came out, the ramifications of the case on freedom of information laws have become worrying. The lower court “[interpreted] the exemption so broadly that arguably almost no academic records would ever be available. That wasn’t the result we had advocated in our 2012 editorial,” wrote Fred Hiatt, editorial page editor at The Washington Post, in an email.
“That does not change our original position that the exemption, properly interpreted, does protect some research and scientific working papers,” he continued. “Nor would our lawyers disagree with that editorial position.”
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.