Legal Letters Issue IV: Illinois FOIA request faces Stonewalling

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By Chaim Mandelbaum
FME Law Counsel

Recent transparency efforts by The Energy & Environment Legal Institute (E&E Legal) and the Free Market Environmental Law Clinic (FME Law) ran head first into the anti-transparency culture and institutional wagon circling that seems to pervade state funded institutions of higher education these days.

The University of Illinois at Urbana-Champaign employs Dr. Donald J. Wuebbles, who is a well-known researcher in the field of climate studies and was a major chapter author for the Intergovernmental Panel on Climate Change (IPCC). The IPCC is the UN panel that deals with “climate change.” He is also a frequent speaker and lecturer on climate related issues, so it’s fair to say he is a major public figure. So E&E Legal and FME law submitted under Illinois Freedom of Information Act (FOIA), a routine request for some of Dr. Wuebbles work emails, and documents, which under law are public records. Instead of getting cooperation from a University eager to show off Dr. Wuebbles work, we got obstruction and stonewalling.

Illinois FOIA, 5 ILCS 140, was intended to give the public access to records created by public servants, including those working for universities. Of course there are reasonable exceptions to the Illinois FOIA, in order to protect things that should not be made public, and E&E Legal and FME Law fully expected reasonable withholdings as a result of these exceptions. What we didn’t expect however was the degree of resistance to transparency that we encountered.

The FOIA request asked for Dr. Wuebbles emails that deal with his work on the IPCC 5th Assessment report and his work with the Union of Concerned Scientists. Both are groups outside the University where Dr. Wuebbles works, even while being paid for that work by the University and the taxpayers of Illinois. So we were curious about the nature of his work with these outside groups.

However instead of getting these records, or even being told they were being withheld because of specific statutory exceptions, we were informed that the request was “unduly burdensome” because there were approximately 3,000 records related to our request.

Illinois FOIA law does allow government agencies to refuse requests to meet the statutory standard of “unduly burdensome,” but it was intended to be used when agencies are asked for vast quantities of records, or for entire catalogs of records from lengthy periods. While we thought that the number of records here was perhaps not truly so burdensome for the University, we were willing to work with them to reduce our request. Illinois law allows for the requester and agency to work to focus the request so that it becomes more manageable.

So we narrowed our request. We asked for records that dealt with the IPCC 5th Assessment report and were created between January 2012 and May of 2013. We assumed this would sufficiently narrow the number of records. Instead however the University again claimed this request was “unduly burdensome,” saying there were now suddenly 10,000 records; too many to provide. Given the reduced focus of our request we were surprised that the number of responsive records had more than tripled, but we agreed to reduce our request again, asking them to exclude all the attachments and long reports and PowerPoint slides that might be part of the emails. We just wanted the text of the emails themselves.

Naturally of course the University came back on June 11th 2014 and told us this was still too burdensome. Because now it seemed there were “approximately 15,000 pages of potentially responsive email communications would still have to be searched, gathered and reviewed.” How the number of records kept increasing as the scope of our request decreased we were a little unsure. Still we persevered.

So we reduced the request again, this time to five months of emails, between November 2012 and March 2013. Once again the University decided it was too burdensome. This time they refrained from increasing the number of records they found, simply stating “even with this narrowed scope, your request for documents remains unduly burdensome for the University to process. [T]housands of pages of potentially responsive email communications would still have to be searched, gathered and reviewed.” So we narrowed again, down to just January to March of 2013.

The University responded with an identical reply, claiming it was too burdensome because “thousands” of records exist. At this point it became clear this was all a game. The University had started with 3,000 responsive records, which after five rounds of reducing and focusing the request had morphed into “thousands”. The size of our request wasn’t the problem. The University is simply unwilling to follow the law and to release any records at all.

It seems even a routine request for public records is too much for a University unwilling to permit even a hint of transparency when it comes to climate scientists. It is a textbook case of stonewalling. The University of Illinois would rather cling to a fig-leaf justification, no matter how ridiculous it proved to be, rather than provide records for public review. This opposition to transparency is sadly not just limited to the University of Illinois. Thanks to pressure organizations like The Climate Science Legal Defense Fund, which was created to “protect” climate scientists from things like transparency or public records law, Universities have been working to evade their states records law, and to avoid releasing to the public anything than might hint at cracks in the global warming movement’s dire predictions. Sadly Universities across the nation, from Arizona to Illinois to Virginia have become bastions of this anti-transparency movement.