Bluefield Daily Telegraph, Bluefield, WV

April 17, 2014

Va. justices: Academic emails can be withheld


Associated Press

RICHMOND, Va. — The Virginia Supreme Court on Thursday rejected a conservative group’s attempt to obtain a University of Virginia climate researcher’s emails.

The justices said retired Arlington Circuit Judge Paul Sheridan was right when he ruled that Michael Mann’s emails are proprietary records dealing with scholarly research and therefore are exempt from disclosure under the Virginia Freedom of Information Act. The ruling ends the American Tradition Institute’s three-year court battle to obtain the emails.

The organization, which recently changed its name to the Energy and Environmental Legal Institute, disputes the assertion by Mann and other climate scientists that decades of heat-trapping gas emissions into the atmosphere are responsible for global warming. Conservative state Del. Bob Marshall, R-Prince William, had joined the institute in seeking Mann’s emails.

Mann, who now works at Penn State, teamed with U.Va. to fight disclosure of the communications.

Justice Donald W. Lemons wrote that the dispute centered on the definition of “information of a proprietary nature” that is exempt from FOIA. He said the institute’s position was that the term applies only to documents that, if released, would financially harm the university.

“ATI’s proposed construction of ‘proprietary’ is too narrow,” he wrote. “In the context of the higher education research exclusion, competitive disadvantage implicates not only financial injury, but also 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.”

David W. Schnare, the institute’s lawyer, said the court mischaracterized the organization’s position. He said the institute agreed that the university could protect records whose release would harm its competitive advantage in the marketplace of ideas, but argued that the emails it sought simply did not fit that description.

Schnare said in a statement that the court “accepted U.Va.’s unsubstantiated fears that release of the emails would significantly chill intellectual debate and on that basis allowed U.Va. to continue to operate under a veil of secrecy that the citizens may not penetrate.”

University spokesman McGregor McCance did not immediately return a voice mail message seeking comment.

The justices also ruled that the university could bill the institute to cover the costs of reviewing disputed emails to determine whether they could be released.