by Matthew Hardin, FME Law Counsel

E&E Legal isn’t the only organization that faces stonewalling when it files Virginia Freedom of Information Act Requests. Recently, our friends at the Competitive Enterprise Institute (CEI) faced the same problems.

Back in September 2015, CEI and Chris Horner, senior fellow for both organizations, filed a Virginia Freedom of Information Act request seeking documents at George Mason University (GMU). Specifically, CEI sought records relating to a call by GMU faculty for the Obama administration to prosecute climate “skeptics” under federal racketeering laws.

While GMU claimed it had no records, CEI thereafter received emails sent to and from GMU faculty in response to requests filed in Washington State and Florida. In November, CEI filed suit in Richmond Circuit Court, seeking an order for GMU to conduct a new search and release records generated by its faculty in this campaign to punish climate dissenters. During the legal discovery process, subpoenas served on GMU uncovered thousands of pages of emails relating to the GMU faculty’s campaign to seek racketeering charges against those who deviate from the preferred line on climate change.

Remarkably, after these records were uncovered, GMU insisted that they did not relate to the “transaction of public business”, and so were not covered by Virginia’s open records law. The records were filed with the court under seal, so that a judge could evaluate GMU’s claims.

On April 22, Judge Melvin Hughes of the Richmond Circuit Court ruled in CEI’s favor on all counts. The judge ruled that GMU had not conducted an adequate search for records when it first received the request filed by Horner and CEI. He further ruled the records were covered by the Virginia Freedom of Information Act, and should be released to the requesters. Lastly, he ruled that CEI was entitled to recover its attorneys’ fees under Virginia law.

Rather than release the emails pursuant to the judge’s April 22 order, however, George Mason chose to appeal his decision to the Virginia Supreme Court. What’s more, GMU sought a stay that would prevent release of the records for months as the appellate process went on.

CEI prevailed again, with the judge ordering the immediate release of the records on May 13. Some of those records are now posted for the public to review on E&E Legal’s website, and show the inner workings of a campaign by state employees to punish those who disagree with them on climate change.

Unfortunately, GMU is currently refusing to release the remaining records, even though two court orders call for them to do so immediately. And, GMU is not alone in its bid to keep the public from seeing government records. After GMU was defeated in its latest attempt to keep the records sealed on May 13, the Climate Science Legal Defense fund moved to intervene in the case, and hopes to stay the release of the remaining records even longer. While CEI continues to fight to enforce the rule of law, and the court’s orders, the battle is far from over. The records of those who would prosecute climate skeptics public detail the genesis of the campaign, and how taxpayer dollars were spent in an effort to stifle political dissent. CEI will not rest until those records are made available for the public to see.

While CEI’s recent victory encourages us that transparency laws can be used to highlight improper practices in state universities, it is worth remembering just how rare such victories are. In 2014, the Virginia Supreme Court held that emails and other records generated by Professor Michael Mann at the University of Virginia were exempt under the law’s “research” exemption. And, almost immediately after CEI’s victory in the recent case against George Mason, detractors on the left began decrying decision as a departure from the 2014 precedent. Moreover, it now appears that even when the citizenry does strike a blow for transparency, those victories may be illusory if court orders are disobeyed.

Detractors of transparency badly misunderstand the law, however, For example, Lauren Kurtz of the Climate Science Legal Defense Fund gave a statement to E&E News indicating that professors’ emails should be kept private unless they relate to research. However, the 2014 Virginia Supreme Court decision explicitly says that records related to research are exempt from production under the law. If the leftist opponents of transparency have their way, all records generated by activists in state-funded posts would be forever shielded from public scrutiny, no matter what those records reveal. If the left has its way, it’s a case of “heads we win, tails you lose” for citizens who want access to the records their tax dollars paid to generate.

Thankfully, the tide seems to be turning. After a string of court decisions that narrowed Virginia’s Freedom of Information Act in the past couple of years, we now see opportunities to turn the tide. Better still, the Virginia legislature has shown promising signs that it understands the need to clarify and improve the law’s requirements relating to searches for records. E&E Legal, and counsel at FME Law, will continue the fight to increase transparency in Virginia, and hold activists in government accountable for their actions.