On September 14, the Arizona Court of Appeals, Division II, ruled that a trial court decision to release climate scientists’ emails had improperly ignored an Arizona statutory protection for university records. In this case, the Energy & Environment Legal Institute (“E&E Legal”) has been attempting to use open records laws to obtain a 13 year span of emails from two University of Arizona climate scientists. This ruling returns the case to the trial court for a consideration of whether the statutory protection applies to the emails sought here.
State and federal open records laws promote government accountability by allowing citizens to request copies of administrative records, but these powerful tools can also be misused “to harass and intimidate scientists and other academic researchers, or to disrupt and delay their work.” Overly intrusive open records requests, particularly for emails, can discourage the candid exchange of ideas (including “devil’s advocate” arguments and “what if” debates), and provide opportunities for hostile actors to take phrases, including scientific jargon, out of context in order to mislead and confuse the public. 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.”
In this case, E&E Legal initiated its open records request in December 2011, seeking a 13 year span of emails from University of Arizona climate scientists Malcolm Hughes and Jonathan Overpeck. E&E Legal describes its work as “free market environmentalism” and claims that release of these emails is necessary for its “transparency project” into uncovering potential misconduct by climate scientists. In its Amended Complaint, E&E Legal claimed that certain emails stolen in the so-called “Climategate” hacking in 2009, involving these two University of Arizona scientists and others, indicated misdeeds needing further scrutiny. Of course, all official investigations related to “Climategate” have shown no misconduct and the episode is now seen as a “manufactured controversy.”
The University of Arizona produced some emails, and withheld thousands of others, claiming that these emails – which included peer-review commentary, preliminary drafts, and candid debates with colleagues – should not be produced under Arizona law. The two main protections claimed by the University:
- An Arizona statute, A.R.S. 15-1640, which dictates that “unpublished research data, manuscripts, preliminary analyses, drafts of scientific papers, plans for future research and prepublication peer reviews” from Arizona public universities are exempted from the public records laws, provided that certain requirements are met.
- An Arizona common law balancing test, originating in Mathews v. Pyle, 75 Ariz. 76 (1952), which states that documents can be withheld from an open records request if it can be shown that the public interest in protecting the records is greater than the public interest in disclosing the records.
The University argued that the statutory requirements were met in this case, and protected these emails; in the alternative, it argued that the emails would also be protected under the common law test, as the public interest in protecting scientific research emails was greater than in disclosing them.
In 2015, the trial court ruled that the University had not erred in concluding that the public interest was greater in protecting the emails than in producing them, and the trial court upheld the University’s decision to withhold. E&E Legal appealed, arguing that the trial court had improperly given deference to the University’s determination, and that the trial court should have weighed both sides’ arguments equally (de novo). The appellate court agreed, and remanded to the trial court for an equal balancing of the arguments. On remand in 2016, the trial court reversed itself and concluded that, after balancing the interests equally, disclosure was required. The case history is covered in more depth here.
The Current Appeal
On this most recent appeal, the University argued that in conducting the common law balancing test, the trial court had improperly ignored the statutory protections of A.R.S. 15-1640, which specifically apply to public university research records. Neither the trial court’s 2015 decision in favor of the University, or the 2016 decision against the University, mention this statutory protection despite earlier briefings by the parties.
On appeal, E&E Legal argued that these earlier briefs showed the trial court was clearly aware of the statutory protection and that the judge must have concluded the statute to be inapplicable.
The appellate court disagreed, concluding that A.R.S. 15-1640 speaks to exactly the sorts of records at issue in this case, and that the trial court must make a clear determination as to whether the statutory protections apply, or whether the statute’s limitations preclude protection.
The case now returns to the trial court for a third round, with a dictate from the appellate court to determine whether the emails sought by E&E Legal fall within the protections of A.R.S. 15-1640. This may be easier said than done: this particular statute has not been analyzed by any other court and, as both parties’ briefings have acknowledged, the statute contains undefined terms and ambiguities. (For example, the statute states that the protections do not apply when “the subject matter of the records becomes available to the general public” – but the term “subject matter” is undefined in the statute.)
An increasing number of states protect scientific research, usually through statutory means – including, most recently Rhode Island (effective June 27, 2017) and North Dakota (effective August 1, 2017) – but sometimes also via application of common law principles (for example, West Virginia). But while there has been a general trend towards lawmakers and courts recognizing the public interest reasons for protecting scientific records, states can have wildly varied and idiosyncratic approaches, increasing the odds for confusion and misuse.
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.” In the instant case, Dr. Hughes testified that it took him ten weeks to compile and review old emails, and he lost his summer research opportunity (the time he would normally focus on research because he teaches during the academic year), including losing grant funding that expired. Dr. Overpeck testified that he lost six weeks of his sabbatical to reviewing old emails, and that “this matter has been a grave distraction from my responsibilities to carry out research, teaching, administration for the University of Arizona.”
A schedule for the remand has not yet been set.
Lauren Kurtz is the Executive Director of the Climate Science Legal Defense Fund, which filed an amicus brief in this case, joined by the American Association for the Advancement of Science, the American Meteorological Society, the National Academy of Sciences, the Union of Concerned Scientists, and Pfizer, Inc.