By: Cliff Smith
FME Law Counsel

In the light of the impending decision of the Virginia Supreme Court in the case of American Tradition Institute v. The University of Virginia, over the emails of Climate Scientist Michael Mann of the (in)famous “Hockey Sticks” research, George Washington University Law School and the National Academy of Sciences’ Committee on Science, Technology, and Law, held a day-long debate on how academic freedom and open records laws interact and the collision between those advocating on behalf of the public’s right to know, and those who fear there may be a “chilling effect” on academic research if academic’s emails are made public.  The event, “The Tension Between Academic Freedom and State Open Records Laws: Is There a Need for Re-Examination?,” was held on the campus of GW Law school on April 1.

Panelists included E&E Legal General Counsel Dr. David Schnare, a scientist and a lawyer who served as lead counsel in the UVA case, as well as Madelyn Wessel Associate General Counsel at the University of Virginia and co-counsel in ATI vs. UVA. (ATI is the former name of the Energy & Environment Legal Institute (E&E Legal)).  Other panelists were CATO Institute Scholar and former UVA professor Patrick Michaels, William Briggs of Irell & Manella, author of a law review article on the topic, and Daniel Volchok, partner at Wilmer Cutler Pickering Hale and Dorr who was a co-counsel foramici in support of UVA, amongst others. There were four panels, one specifically concerning the ATI vs. UVA case itself, another concerning the rationales for disclosure and withholding, another on solutions, and a fourth on special problems and questions concerning academics emails and disclosure.

Panelists generally agreed that the issue is a conflict between the academic need for privacy, particularly as it relates to scientific discussion, collaboration, and pre-published research materials, and the public’s right to know.  As one panelist noted, no one was arguing for complete withholding, and nobody was arguing for complete disclosure all of the time, so the debate centered around on how much weight should be given to each, and when one need outweighed the other.  None-the-less, the differences and implications of how much weight to give to each varied profoundly amongst the panelists.

Dr. Schnare argued that privacy should be paramount during the research stage of an endeavor.  However, having produced a product, research and discussions concerning research and the like are important to protect against error and bias.  He quoted Eisenhower’s farewell address, in which the former President said, “Yet in holding scientific discovery in respect, as we should, we must also be alert to the equal and opposite danger that public policy could itself become the captive of a scientific-technological elite,” warning that this is in danger of happening.  Others on the panel strenuously disagreed, citing the need for privacy and stating that academics should not have to fear initial thoughts or conclusions are made public out of fear of being misunderstood.

In a later panel, Jamie Lewis Keith, Counsel at the University of Florida and a former Counsel at the Massachusetts Institute of Technology, said that the issue between privacy and openness goes to the heart of a Democratic society, and that there had been abuses on both sides.  She believed that there should be a balancing test applied.  A discussion concerning where such balancing could take place ensued.  Should it be a matter for the courts or should legislatures write better statutes?  Those who took the position that the Courts could sufficiently weigh such issues were countered with a famous quote concerning balancing tests “How can you weigh a bushel of horse feathers against next Thursday?”  Diane Krejsa, an attorney for the University of Maryland, argued that the motivations of the requesters should be brought into consideration, while others, particularly in the transparency community, hotly disagreed and argued that current laws do not allow that because it goes to the question of motivation of the requester, which is ripe for abuse by government officials.

Another issue that was hotly debated is if what academics do is really “public business” in the same sense as members of the Department of Transportation, for example.  Peter Fontaine, counsel for former UVA Professor Mann, argued they were not and should not be subject to open records laws at all.  He cited the fact that private universities are not subject to open records laws, while public universities are, as well as the fact that most foreign universities are not subject to the same kinds of public records requests, which could lead to less information sharing and collaboration between private, public and foreign scholars.  One panelist who works for the transparency community said he believed the opposite, that if anything, private universities should be subject to the laws as well.

There were a myriad of other issues discussed in the nearly 8 hour-long event, from conflicts of interests and a degrading of scientific standards in universities to the increasing role of universities in policymaking.  Fundamentally, however, it is clear that the debate over this issue will not end with the decision in ATI v. UVA.  The case, however, will bring some clarity to how the Commonwealth of Virginia applies its freedom of information law to academia – a decision that will be of interest to the other 49 states – and it could possibly be the impetus, in part, of a future U.S. Supreme Court case on the issue of academic freedom.