On June 14, an Arizona trial court ruled that the University of Arizona must turn over more than a decade of university climate scientists’ emails to the Energy & Environment Legal Institute (“E&E”), a group that, in its own words, “pepper[s] universities around the country” with open records requests as part of a mission of “free market environmentalism.” This June 2016 decision is a complete reversal from a March 2015 decision by the same judge, as well as a serious departure from other court cases across the country protecting scientists’ research correspondence.
E&E – formerly named the American Tradition Institute (“ATI”) – has repeatedly used open records laws in attempts to obtain years of publicly funded scientists’ correspondence. The group’s work has been described as “filing nuisance suits to disrupt important academic research” as part of its work to convince “the public to believe human-caused global warming is a scientific fraud.” The group has been linked to the coal and oil industries, “major conservative players,” and “organizations opposing action on climate change.”
State and federal open records laws promote government transparency by allowing citizens to request copies of administrative records, but these powerful tools can also be misused: the Union of Concerned Scientists has found that “open records requests are increasingly being used to harass and intimidate scientists and other academic researchers, or to disrupt and delay their work.” Over years of protracted litigation, courts have often ruled for the protection of academic research in cases from California to West Virginia. But even when plaintiffs lose, they can still succeed in “confus[ing] the public debate, and forc[ing] universities and scientists to spend hundreds of thousands of dollars defending themselves.” Climate scientists in particular have been subjected to “information attacks” by a “network of groups with close ties to energy interests that have long fought greenhouse gas regulation.”
E&E’s Earlier Lawsuit in Virginia
Under their old name ATI, E&E previously sued under open records laws for 10,000+ emails of prominent climate scientist Dr. Michael Mann, seeking virtually every email he had written or received over his six years of employment at the University of Virginia (“UVA”), among other items. In 2014, the Virginia Supreme Court ruled that all of Dr. Mann’s emails were protected under Virginia’s open records law, and it determined that disclosing academic research correspondence would cause “harm to university-wide research efforts, damage to faculty recruitment and retention, undermining of faculty expectations of privacy and confidentiality, and impairment of free thought and expression.” The Virginia Supreme Court also concluded that the state had an interest in “protect[ing] public universities and colleges from being placed at a competitive disadvantage in relation to private universities and colleges.” The American Association of University Professors, among other groups, lauded the decision for its “strong rationale for the defense of academic records.”
University of Arizona Lawsuit, Initial Proceedings
While the UVA case for Dr. Mann’s records was working its way through the Virginia courts, E&E brought another open records lawsuit in Arizona for the emails of Dr. Mann’s coauthor, Dr. Malcolm Hughes, seeking all of Dr. Hughes’ correspondence with Dr. Mann over the same six year period at issue in the Virginia litigation. E&E also sued for a thirteen year span of emails from another Arizona climate scientist and Intergovernmental Panel on Climate Change (“IPCC”) lead author, Dr. Jonathan Overpeck, on a variety of topics, including emails containing the word “deadline.”
In its Amended Complaint, E&E stated it was conducting a “transparency project,” which it claimed was necessitated in large part by its interpretation of climate scientists’ emails stolen in the so-called “Climategate” hacking in 2009. E&E alleged that certain hacked emails involving these two University of Arizona scientists and others indicated misdeeds worthy of further scrutiny, even though all official investigations related to “Climategate” have shown no misconduct and the episode has been acknowledged as a “manufactured controversy” for years.
The University of Arizona withheld thousands of emails, applying Arizona’s general records exemption that it was “in the best interests of the state” to withhold. As was successfully argued in the UVA open records lawsuit over many of the same emails, the University of Arizona argued that releasing scientists’ emails would chill researcher correspondence and undermine academic collaboration. Release would harm the state, the University contended, by impeding the scientific process and discouraging researchers from working at Arizona public universities or with Arizona public university scientists. The University argued that, if E&E were truly interested in evaluating scientific merits, the group would ask for final data, methodologies, and research results – which E&E did not do, perhaps because of all of this information was already publicly available via peer-reviewed published studies and online databases.
Ultimately, the University claimed, E&E’s “briefs and other public pronouncements reveal a plan to harass scientists whose views do not accord with those of E&E and its allies, or who simply do not play by the rules of etiquette E&E nominated itself to enforce.”
In support of its arguments, the University submitted a series of sworn expert declarations. Among these:
- Bruce Alberts, a biochemist and former Editor-in-Chief of Science magazine, testified that releasing emails would be harmful, as scientists “must feel free to speak their minds in private emails – spontaneously and without fear of each informal thought being officially reviewed. . . . Any discouragement of such spontaneous and blunt honesty on the part of a scientist in private correspondence would seriously hinder the free flow of thought that is critical to scientific invention.”
- Vicki Chandler, the Chief Science Program Officer at the Gordon and Betty Moore Foundation, which annually awards $86 million in non-biomedical scientific funding, testified that “I would seriously question making a grant to an institution that could not keep their researchers’ [preliminary] data and communications confidential, as I understand the potential harm to the scientific process.”
- Carole Goldberg, a law professor at the University of California – Los Angeles (“UCLA”), testified that she was co-chair of a task force to determine how UCLA should respond to open records requests for academics’ research files. This task force concluded that “[f]rank, honest exchange depends on the maximum protection of the informal and everyday work, personal email, drafts, and records related to research and teaching” and without this protection, faculty will “avoid investigating controversial issues,” among other harms.
The Arizona scientists whose emails were sought by E&E also submitted sworn testimony. Dr. Hughes testified that, when his emails were hacked in the 2009 “Climategate” episode, there was an “ongoing disruption of my professional and personal life” due to “consequent accusations, attacks, innuendo, and inquires.” While there were unanimous official exonerations of any wrongdoing, “the emails were distorted and taken out-of-context by various anti-global warming groups.” Dr. Hughes further testified that “I have been directly informed by several colleagues that they have limited their email communications with me because I have been targeted in public records requests” and that his research has consequently suffered; “this chilling effect is not merely theoretical but rather an actual and present harm.” He also testified that it took him ten weeks to compile and review the roughly 17,500 pages of emails that E&E sought (including converting email files on outdated technologies into currently readable formats). This took Dr. Hughes away from his research for a full summer – the time he would normally focus on research because he teaches during the academic year – and he lost grant funding that expired.
Dr. Overpeck testified that he lost six weeks of his sabbatical to reviewing, in his case, over 90,000 pages of emails sought by E&E. He testified that “this matter has been a grave distraction from my responsibilities to carry out research, teaching, administration for the University of Arizona, as well as from the time for my personal and family life. I believe that if other colleagues were required to cull through tens of thousands of pages of emails and prepare a log of withheld emails, as I was, it would create such a significant potential for individual and collective disruption and that such process alone would result in a major competitive disadvantage to Arizona’s universities.” Given these grievous harms, he testified that “[i]ndeed, I will likely be among those seeking work elsewhere in the event the risks identified in this case become a reality.”
At a hearing in February 2015, E&E countered that if Dr. Overpeck did leave the University, he could be replaced with “other potential faculty members with the same skill set and [who are] capable of doing the same job conceivably at lower cost and with more vigor because they’re young and ready to go” and that “it might be in the best interest of the State” for such faculty turnover to happen.
At that hearing, E&E’s attorney also claimed that female scientists may take, in his words, a “mommy sabbatical” and then ignore their publicly-funded research in lieu of “sitting around folding clothes.” Given this risk, the attorney argued, scientists’ “abandoned” emails regarding “preliminary unpublished work” should be released to the public, and others should be able to pick up on any “abandoned” research in order to prevent “children d[ying] of cancer in the meantime.” E&E did not explain how to determine what has been “abandoned.”
In their opening brief, E&E stated that Drs. Hughes and Overpeck are “academic climate alarmists” deserving of further scrutiny because of “the large economic and regulatory impact resulting from reliance on” their research. E&E acknowledged that it sought, in part, emails that “embarrass both Professors Hughes and Overpeck and the University.” E&E also argued, in their briefs and at oral argument, that there is a role for taxpayers to review scientists’ emails for “uncivil behavior” and, they argued, “chilling incivility is not something that’s a bad thing. It’s in the best interests of the State.” E&E claimed that it was “unfounded” to believe that releasing emails would “chill the creative efforts of faculty” and that protecting researcher records instead “encourages and rewards misbehavior.” E&E also claimed that, because most of the emails they sought were from the late 1990s and early 2000s, this work was “stale,” and thus releasing them would cause “no harm.”
E&E submitted its own experts to support their arguments that release of researchers’ emails was in the best interests of the state. Among these:
- Craig Idso, founder of the Center for the Study of Carbon Dioxide and Global Change, testified that certain “scientists have propounded an alarmist view that an increase in carbon dioxide in the atmosphere would have an exclusively negative effect on the planet and on human civilization” and they “hide any data they gather which shows contrary results. . . . To counter this, greater transparency within the academic community is needed.”
- Peter Ferrara, a former law professor at George Mason University and current fellow at the Heartland Institute, testified that “[m]y experience as an academic convinces me that the release of records after research has been published will not chill academic research, but may improve the quality of future academic endeavors.”
- Russell Cook, an Arizona taxpayer, testified that without access to the requested emails, “I cannot adequately determine whether climate research is a good use of taxpayer funds, whether such research is reliable . . . whether such research is effective . . . or whether the legislators and other public employees are being wise stewards of the public fisc.”
The trial court, the Pima County Superior Court, initially ruled in March 2015 that the University had provided an “abundance of supporting evidence” that harm would occur if the records were released and that “[w]hen the release of information would have an important and harmful effect on the duties of a State agency or officer, there is discretion not to release the requested documents.” Finding for the University, the trial court concluded that the University had not “abused its discretion or acted arbitrarily or capriciously.” More about this March 2015 decision can be found here.
E&E appealed the decision, claiming that the trial court should not have given any deference to the University of Arizona and that the trial court should have weighed both sides’ arguments equally under a de novo review. The Arizona Court of Appeals determined that E&E had couched its appeal under a “rule that is inapplicable to this case,” but agreed that there should be a de novo review, and it remanded the case back to the trial court to equally “balance the countervailing interests.” (The Arizona Court of Appeals also noted that the Arizona open records laws authorize attorney’s fees to all successful plaintiffs.)
Remand to the Trial Court
On remand to the original judge, analyzing the same arguments and evidence but using a de novo standard of review, the trial court issued a new decision on June 14. This time, in weighing the University’s arguments equally with Arizona’s general “presumption favoring disclosure,” the trial court concluded disclosure was required. The trial court determined that the University effectively sought “creation of an academic privilege exception” to Arizona’s open records laws, which, the court stated, “is a proposition more properly made to the legislature rather than the courts.” The trial court also noted that, “[a]lternative methods of communications have been and remain available to Professors Hughes and Overpeck and any other similarly situated persons should they desire to correspond in confidence regarding research projects and like endevours [sic].”
In a footnote, the trial court contrasted this case with Arizona Board of Regents v. Phoenix Newspapers, Inc., 167 Ariz. 254 (1991), which held that Arizona State University properly withheld 256 names being considered for University President. In that case, the Arizona Supreme Court determined that revealing these names would “chill the attraction of the best possible candidates for the position” as the prospective candidates – people employed at competing universities, as well as people nominated by others – “may find it embarrassing and harmful to his or her career” to have the names released. In determining that protection was warranted, the Arizona Supreme Court noted that in other cases, “publicity attendant to the search has proven detrimental to the search process, resulting in lesser qualified, but thicker skinned, persons applying.” The interests of the state, the Arizona Supreme Court concluded, “are best served by not discouraging the ‘cream’ from applying” and thus protection was warranted.
Here, the trial court concluded that the Phoenix Newspapers case dealt with “proven” harms of chilling effects, and while the University of Arizona had made “compelling” arguments, the trial court found that the probability of a chilling effect from releasing thousands of researchers’ emails was “speculative at best.”
In a press release issued two days after the decision, E&E reiterated its position that the emails sought would reveal an “activist climate agenda.” The group promised to make all of the emails “publicly available to all interested in the history of this important period during which academics demonstrated significant influence on the public discussion on global warming and the human influence thereon.”
Under the Arizona Rules of Civil Appellate Procedure, the University must file a notice of appeal within 30 days after entry of the final judgment. (Edited to add that an Arizona judgment is not considered final and thus appealable until any pending claims for attorneys’ fees are resolved. The final judgment in this case, which included an award of partial attorney’s fees, was entered on September 19, 2016. On October 17, the University of Arizona filed a Notice of Appeal in the case.)
Lauren Kurtz is the Executive Director of the Climate Science Legal Defense Fund, which previously assisted with the representation of Dr. Mann in his Virginia open records litigation. CSLDF also filed amicus briefs in support of the University of Arizona in this Arizona open records litigation.
 After the University of Arizona attorney stated that a “more appropriate” term “might be maternity leave,” E&E’s attorney clarified that “[y]ou can call it that, too, because it could be also daddy leave. I mean, it’s a situation where a parent says I’m dropping my professional work to do something with my family.”
 The general rule in the United States is that each party must pay its own attorney’s fees. In an exception to this general rule, open records laws widely authorize attorney’s fees as a matter of course for prevailing plaintiffs.