Unpublished Research Kept From Climate Skeptics’ Grasp

     (CN) – Unpublished documents related to a professor’s research on global warming are “proprietary,” and therefore exempt from the Virginia Freedom of Information Act, the Virginia Supreme Court ruled.
     Michael Mann, a meteorology professor at Penn State University, previously taught at the University of Virginia.
     In addition to running Penn State’s Earth System Science Center, Mann co-wrote the “Hockey Stick Graph,” a purported long-term analysis of global climate trends using indicators such as tree rings.
     Questions over Mann’s work arose in 2010 when emails between Mann and climate scientists at the University of East Anglia surfaced.
     In one email from East Anglia, a researcher said: “I’ve just completed Mike’s Nature trick of adding in the real temps to each series for the past 20 years (i.e. from 1981 onwards) (and) from 1961 for Keith’s to hide the decline.”
     In addition to an investigation by Penn State, Mann faced queries from the U.S. Environmental Protection Agency and the National Science Foundation, but Mann said the agencies found no basis for the allegations against him.
     At the same time, the American Tradition Institute (ATI), now renamed the Energy & Environment Legal Institute, filed a request under the Freedom of Information Act (FOIA) for all documents Mann produced or received while working for the University of Virginia, where he did much of the research for “The Hockey Stick Graph.”
     The university turned over about 1,000 documents, but withheld another 12,000 documents and emails, claiming that the work was “proprietary,” and therefore exempt from the FOIA.
     Mann meanwhile sued several right-wing publications for defamation, including the National Review and the Frontier Centre for Public Policy .
     The Virginia Supreme Court found for Mann last week.
     “ATI argues that ‘information of a proprietary nature’ is limited to that which gives the governmental body a commercial competitive advantage or, stated negatively, that Code § 2.2-3705.4(4) only protects those documents which, if disclosed, would financially injure UVA. ATI’s proposed construction of ‘proprietary’ is too narrow,” Justice Donald Lemons wrote for a three-judge panel.
     Citing the Supreme Court’s decision in Green v. Lewis, Lemons said, “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.”
     The provost of the University of Virginia John Simon testified that compelling disclosure of the requested documents would put faculty at public institutions at a disadvantage compared to their counterparts at private institutions whose communications are not within reach of the FOIA.
     “Because we do not attribute to the General Assembly an intention to disadvantage the commonwealth’s public universities in comparison to private colleges and universities, we hold that the higher education research exemption’s desired effect is to avoid competitive harm not limited to financial matters,” Lemons wrote.

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