For Immediate Release: November 14, 2013
Contact: Craig Richardson, Executive Director, Richardson@eelegal.org

Washington, D.C. — Today, The Energy & Environment Legal Institute (E&E Legal) filed a Brief of Appellant with the Virginia Supreme Court against the University of Virginia (UVA) for their failure to release e-mails of former UVA professor, Dr. Michael Mann, related to his “climate” research. The Reporters Committee for Freedom of the Press (Reporters Committee), along with 17 media organizations, agree with E&E Legal’s position in the UVA case, and have filed an Amici Curiae brief in support of the Appellant. Oral arguments are scheduled for the week of January 6, 2014.

“Our UVA/Mann case is about ensuring that the Virginia government release information upon which public policy relies and which affects public confidence in our government,” said Dr. David Schnare, E&E Legal General Counsel. “It’s also about preventing the government from erecting a “paywall” behind which the government can hide, one which the legislature did not authorize.”

In January 2011, E&E Legal (under it’s old name, The American Tradition Institute) filed a FOIA request with UVA for e-mails of Mann, the author of the infamous and widely-discredited “hockey stick” that claimed to show little variability in global temperatures from 1000AD until the middle of the 18th century, with temperatures rising dramatically after that period. The FOIA request also asked for the e-mails of more than 30 other global warming scientists who engaged is conversations, some causing deep concern about the scientists’ biases. The FOIA requests were joined by Virginia Delegate Bob Marshall.

UVA initially denied that the records even existed, but an investigation by Virginia Attorney General Ken Cuccinelli revealed the Mann-related records did in fact exist on a backup server. UVA then declined to provide the e-mails, claiming these 10 year old emails contained “proprietary” information. E&E Legal argues the Virginia General Assembly never intended to prevent access to such information and the Supreme Court has determined that E&E Legal’s arguments deserve full consideration.

On May 16, 2011, E&E Legal filed a petition with the Court seeking: (a) an order forcing UVA to release the documents; (b) permission to review the records that UVA intended to withhold; (c) costs and fees; and, (d) a ruling that the Freedom of Information Act (FOIA) does not authorize collection of fees to review records to determine whether those records may be excluded from release. On May 24, 2011, the court ordered UVA to release 1,793 emails (5,649 pages) and allowed E&E Legal to see the records UVA would present to the court for in camera review. On June 15, 2011, the court issued an opinion letter denying E&E Legal’s request to bar UVA from charging for exclusion review of its records and subsequently, on July 7, 2011, entered the associated order.

On April 2, 2013, the trial court determined that all documents withheld under the research data exclusion, including emails, contained information of a proprietary nature produced or collected by or for UVA faculty or staff in the conduct of, or as a result of, study or research on scientific issues, regardless of any UVA involvement in the study or research, and that such data, records or information had not been publicly released.

E&E Legal argues that the trial court erred in both these decisions. If upheld, the decisions below would:

  • allow UVA to withhold any email it possessed, effectively writing the Commonwealth’s public universities out of a statute the Legislature expressly wrote them into, frustrating the purpose of the Virginia Freedom of Information Act; and,
  • allow any government agency the ability to demand any payment they choose to pay for exclusion review of public records, creating a “pay-wall” that effectively denies citizens access to public records, frustrating the purpose of the Virginia Freedom of Information Act.

E&E Legal asks the Supreme Court to reverse the circuit court decision and direct UVA to release all withheld public records not containing mandatorily excluded information, return the $4,000 paid for exclusion review and order costs and fees to E&E Legal.

The Reporters Committee, and the joining media organizations, support E&E Legal’s arguments. As stated in their brief, “This case, while specifically concerned with the issue of the release of climate researcher Michael Mann’s email communications with other academics, involves two issues of critical importance to the media and the public: whether a Virginia public institution may withhold from the public any documents it creates or manages, and whether a state may charge requesters for the cost of exemption review. As advocates for the media and the media’s ability to disseminate information to the public, amici have a strong interest in ensuring journalists and members of the public can access government documents.”

The 17 media organizations joining The Reporters Committee include:

  • Allbritton Communications Company
  • The Associated Press
  • Atlantic Media, Inc.
  • Belo Corp.
  • Dow Jones & Company, Inc.
  • First Amendment Coalition
  • Gannett Co., Inc.
  • National Press Photographers Association
  • National Public Radio, Inc.
  • News Corp
  • Newspaper Association of America
  • North Jersey Media Group Inc.
  • POLITICO LLC
  • Radio Television Digital News Association
  • Reuters America LLC
  • Student Press Law Center
  • The Washington Post

The Energy & Environment Legal Institute (E&E Legal) is a 501(c)(3) organization engaged in strategic litigation, policy research, and public education on important energy and environmental issues. Primarily through its petition litigation and transparency practice areas, E&E Legal seeks to correct onerous federal and state policies that have crippled the economy, increased the cost of energy, eliminated jobs, and done little or nothing to improve the environment.

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