For Immediate Release:
March 23, 2015

Contact:
Craig Richardson
Richardson@eelegal.org
202-758-8301

Virginia’s Freedom of Information Act Used to Determine Whether UVA Can Keep Scientific Bias Secret

Washington, D.C. — Arizona Rep. Raul Grijalva, the ranking Democrat on the Natural Resources Committee, accuses university faculty of bias based on the source of their funding – arguing that these scientists will not bite the hand that feeds them and will slant their work to please the funding organizations. He has aimed his accusations at scientists whose papers document holes in the science supporting climate alarmism. Following his lead, Senators Markey, Whitehouse and Boxer sent letters to numerous energy companies and industrial organizations, apparently with the intent to prove alleged influence peddling among faculty whose universities have accepted their grants.

Not in the headlines, but of equal concern is the potential for scientists whose funding is dependent on federal grants to “hew the party line” on climate science.

These accusations are based on nothing. Grijalva, Markey, Whitehouse and Boxer have shown no evidence that “skeptical scientists” bias their scientific reporting based on the interests of those who fund them. Sadly, the same cannot be said for some “alarmist scientists” who receive government funding. Recall the words of global warming alarmist Professor Stephen Schneider who famously claimed that scientists had to “decide what the right balance is between being effective and being honest.”

The only way to determine if a university faculty member is biased, and lets that bias creep into his or her professional work, is to look at their actual words and deeds. The Freedom of Information Act provides the tool to embark on that examination and is being used to test whether, in Virginia, a professor and his university can hide the non-research communications that would document the biases, if any, that a faculty member may have.

The University of Virginia has been sued for the decade-old non-research records of Michael Mann. Matthew Hardin, a recent Virginia law school graduate, filed suit this week against the Rector and Visitors of the University of Virginia after the school denied access to Mann’s non-research emails. He retained the Free Market Environmental Law Clinic to represent him in court. Mr. Hardin explains, “It’s clear UVA is improperly withholding records they must release. They charged me hundreds of dollars and failed to produce even documents that they’ve admitted to having and some which they released before.”

The Energy & Environment Legal Institute follows these transparency cases closely. With regard to universities, E&E Legal has recognized and promoted the need for careful application of transparency laws, arguing that actual, ongoing research must be protected, while faculty involvement in professional service activities and policy discussions should be made public. We issue this press advisory because of its national importance and because we believe this case will help frame the importance of Freedom of Information Act requests in unearthing the facts the can exonerate or condemn faculty accused of bias. E&E Legal is not alone in this interest and concern about the role of faculty within the policy arena. “I think science and politics are becoming more and more difficult to separate,” says Daniel Sarewitz, co-director of the consortium for science, policy and outcomes at Arizona State University.

Transparency in university faculty activities can identify which, if any faculty have announced biases on these international scientific issues. Transparency, however, only works if the universities follow and the courts enforce transparency law. E&E Legal awaits the outcome of its own case currently before the Pima County, Arizona, Circuit Court, a case that will determine whether Arizona universities must give up policy-related public records and emails – in that case associated with activities of the Intergovernmental Panel on Climate Change.

Mr. Hardin’s new lawsuit arises out of a records request he filed with the University of Virginia last June. In that request, he asked for unsolicited emails sent to Dr. Mann, emails associated with discussions about the published, peer-reviewed critiques of Dr. Mann’s now infamous and discredited “hockey stick” graph that was stylized and used as a virtual logo on IPCC documents, but then discarded by the IPCC. Hardin also seeks emails associated with editing the IPCC reports while Dr. Mann was at UVA.

For its part, UVA has refused to release these emails, arguing that they are protected by the research exception to Virginia’s Freedom of Information Act. None of these emails, however, meet the criteria for exclusion. They were not collected by the University for use in a research project and did not emerge as the results of a research project.

Dr. David W. Schnare, Lead Counsel representing Mr. Hardin, explains “This case will help establish what a University can and cannot keep secret.” Notably, the Virginia Supreme Court accepted this issue when it accepted a similar E&E Legal case against UVA. In that case, however, the court failed to explain what is and is not protected data, records and information associated with research. All the Court addressed was whether such records were “proprietary,” another criterion a public record must meet to be kept secret by the University. The Hardin suit does not dispute whether any of the emails sought might be proprietary. Rather, it addresses the criteria the Virginia Legislature established as associated with “research” and which must be met if the University wishes to keep its public records secret.

E&E Legal predicts that the usual gaggle of activists will claim this suit is simply more harassment of university faculty. Dr. Schnare responds to this, explaining, “President Eisenhower warned us of the harm a ‘scientific-technological elite’ can cause. As a hard scientist, I understand the potential for improper manipulation of policy, masquerading as no more than scientists’ pontification. Scientists and faculty working at government institutions have a special duty to the public. Scientists who accept these government positions know going in that they are subject to public scrutiny and the vast majority of them have no problem with that.” He continued, “Any university professor who refuses to release their non-research communications is hiding something and that something may well be bias that can creep into their research.” E&E Legal recognizes that this suit will help clear the air on how the public can participate in keeping science honest.

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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 hinder the economy, increase the cost of energy, eliminate jobs, and do little or nothing to improve the environment.

The FME Law Clinic provides litigation and research services to qualified clients. We concentrate on cases involving landmark free-market pro-environmental litigation; use of open records and data quality laws to force greater governmental accountability and transparency; and, cases that allow the Clinic to help create the next generation of free market oriented attorneys.

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