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Court Shields Scholar's Emails

April 18, 2014

The Virginia Supreme Court's ruling Thursday backing the University of Virginia's right to exempt a climate scientist's email messages from a public records request contains no soaring rhetoric about academic freedom; it revolves around the legal narrow definition of "proprietary" information and the intricacies of the state's Freedom of Information Act.

But the ruling nonetheless stands as a victory for public universities and scholars who work there, if more for practical than philosophical reasons.

The court's decision in American Tradition Institute v. Rector and Visitors of the University of Virginia backs a lower court's conclusion that emails the institute sought from a researcher then employed by UVa were justifiably exempted from the institute's request for documents.

The institute -- which now operates under a different name -- had sought the emails of Michael E. Mann hoping that exchanges among climate scientists might cast doubt on views of the environment backed by most scholars. (Mann now works at Pennsylvania State University.)

The American Tradition Institute had asserted that in ruling for the university in 2012, a lower court had erred in declaring Mann's emails to meet the open records law's definition of "proprietary." The Supreme Court said that the institute sought to define "proprietary" too narrowly as providing a financial advantage alone.

Virginia's legislature set out to "protect public universities from being placed at a competitive disadvantage in relation to private universities and colleges," the state high court said. When it comes to higher education research, institutions can also face "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 court cited testimony from academics across the country arguing that forcing UVa to release the communications of its faculty members would hurt the institution's reputation. The Supreme Court's ruling cites a warning from UVa's provost, John Simon, that "compelled disclosure" of public university professors' "unpublished thoughts, data and personal scholarly communications would mean a fundamental disruption of the norms and expectations which have enabled research to flourish at the great public institutions."

"I can state unequivocally," Simon said, "that recruitment of faculty to an institution like the University of Virginia will be deeply harmed if such faculty must fear that their unpublished communications with the scientific collaborators and scholarly colleagues are subject to involuntary public disclosure" -- and that UVa would lose professors to private institutions like Duke University, where Simon previously worked.

"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," the court's members said they would support UVa's right to withhold Mann's communications.

This was the second decision by the Virginia Supreme Court in favor of Mann and UVa; it also rejected an attempt by then-attorney general Ken Cuccinelli to compel the release of Mann's emails.

College groups applauded the Virginia court's ruling Thursday. “We are gratified that the Supreme Court of Virginia recognized the importance of safeguarding the free exchange of ideas that is integral to the academic environment at American colleges and universities and to producing the type of research and innovation essential to the nation’s economy,” Molly Corbett Broad, president of the American Council on Education, said in a statement​. “This decision supports the process whereby academic researchers brainstorm, debate, criticize and refine scientific hypotheses.”

The Energy & Environment Legal Institute, as the American Tradition Institute now calls itself, criticized the court for accepting "UVa’s unsubstantiated fears that release of the emails would significantly chill intellectual debate and on that basis allowed UVA to continue to operate under a veil of secrecy that the citizens may not penetrate."

 

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