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The four groups — the American Association of University Professors, the American Geophysical Union, the Climate Science Watch and the Union of Concerned Scientists sent this letter to the University of Virginia.
August 10, 2011
president.sullivan@Virginia.EDU
Teresa A. Sullivan, President
University of Virginia
Madison Hall
Dear Dr. Sullivan:
As you know, we are among many organizations and concerned citizens who have followed with great interest the University of Virginia's response to efforts by both Virginia Attorney General Kenneth Cuccinelli and the American Tradition Institute (ATI) to access personal email correspondence and other documents from Dr. Michael Mann and more than thirty other scientists.
We appreciate the university’s decision to challenge Mr. Cuccinelli's Civil Investigative Demands. We also appreciate the commitment you made in your April 21, 2011 letter to the American Association of University Professors (AAUP) and other organizations to utilize “all available exemptions” in responding to ATI's request under the Virginia Freedom of Information Act.
However, we are concerned that the May 24, 2011 agreement between the university and ATI gives ATI needless access to the requested documents. We believe the agreement is in conflict with the university’s previous statements and actions on this issue and that it threatens the principles of academic freedom protecting scholarly research. Furthermore, the agreement cuts against accepted practice in Virginia for responding to open records requests. The university should seek to improve the agreement to better protect scientists from harassment and intimidation.
We fully embrace the university's responsibility to respond appropriately to open records requests. Freedom of information laws are critical for keeping public institutions and their employees accountable to the people who support them. We also support the university’s equally important obligation to protect its employees' privacy and preserve researchers' ability to privately and freely correspond with one another.
Unfortunately, the university’s agreement with ATI does not adequately balance these two responsibilities. We find it troubling that the agreement would allow ATI lawyers, including the very individuals who filed the open records request, to review all documents in the university’s possession, including material which will ultimately be exempt from disclosure.
While the agreement asserts that ATI representatives would be under a gag order regarding exempt documents, we are concerned that giving requesters this level of access sets an entirely new precedent and would create a chilling effect for current Virginia researchers.
The established practice in Virginia Freedom of Information Act cases which involve privacy rights is to prepare an indexed summary of potentially exempt documents and the specific exemption that applies. Then, if there remains a dispute over the basis for the exemption, the judge can review the contested records privately, or in camera, and make a ruling without harming any privacy interests. This is the favored practice recommended by the Virginia Supreme Court in Paul C. Bland vs. Virginia State University, 272 Va. 198, 630 S.E.2d 525 (2006).
Further, there is ample evidence that many if not all of the documents requested by ATI will ultimately be exempt from disclosure. The Washington Post in a May 29, 2011 editorial wrote that, “...a university spokesperson said that U-Va. anticipates that most of the documents at issue will be exempt under a statute that ‘excludes from disclosure unpublished proprietary information produced or collected by faculty in the conduct of, or as a result of, study or research on scientific or scholarly issues.’”
Additionally, the Virginia Freedom of Information Advisory Council has issued guidance regarding the “working paper” exemption to records requests. This exemption protects from mandatory disclosure the working papers and correspondence of the presidents of Virginia’s public universities and other public officials.
Like the scientific research exemption, the working paper exemption is grounded in the interests of privacy and the notion that internal communications and deliberations of public employees are protected to facilitate creativity and the free exchange of ideas.
According to the Advisory Council, “the working papers exemption was designed to provide an unfettered zone of privacy for the deliberative process…a policy determination that protecting decision-making creativity with an ongoing zone of privacy ultimately benefits the public by encouraging the free-flow of ideas by government employees and officials” (AO-17-04). It would be strange, indeed, if your own email correspondence is protected against disclosure but Dr. Mann’s emails are not.
Finally, the university should keep in mind that the agreement risks disclosing emails to ATI among Dr. Mann and his students. As you acknowledged in your letter to AAUP and other groups, the university has a commitment to protect certain correspondence under the Family Educational Rights and Privacy Act.
Moving forward with the agreement as it stands will send scientists at public institutions a message that communicating frankly with colleagues carries significant risk. Therefore, we hope the university will modify its agreement with ATI to adequately protect the privacy of scientists involved and uphold the principles of academic freedom which you have previously articulated.
We look forward to your timely response.
Sincerely yours,
American Association of University Professors
American Geophysical Union
Climate Science Watch
Union of Concerned Scientists
CC: Carol Wood, assistant vice president for public affairs
Richard Kast, associate general counsel
Susan Harris, secretary to the Board of Visitors
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Included with this letter were two supporting documents.
One was a court "OPINION BY SENIOR JUSTICE CHARLES S. RUSSELL"
This appeal involves the application of the Virginia Freedom of Information Act (FOIA), Code § 2.2-3700 et seq.
The other document is a decision by the Virginia Freedom of Information Advisory Council. Excerpts are printed below
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The staff of the (Virginia) Freedom of Information Advisory Council is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your letter of April 30, 2004.
Dear Mr. Nawrocki:
You have asked a question concerning the application of the Governor's working papers exemption under the Virginia Freedom of Information Act (FOIA).
{...}
The question remains, however, as to whether any other event, aside from dissemination, triggers a loss of the working papers exemption.
{...}
Application of the exemption inherently involves the consideration of two competing policies -
- the need for a zone of privacy in the deliberative process to protect creativity and the free-
flow of ideas, and the policy of FOIA at subsection B of § 2.2-3700 that the affairs of government are not intended to be conducted in an atmosphere of secrecy.
Certainly one can appreciate that when a particular course of action or public policy is being explored by government, those involved in the decision-making process should be encouraged to put all ideas and perspectives on the table, even if some of those ideas might later be discounted as unworkable or impractical.
If the chief executive were required to make all such ideas and suggestions public, those who report to the chief executive might be hesitant to speak up to brainstorm or make suggestions for fear of public scrutiny or ridicule. This would result in a
chilling effect on the unfettered and free flow of ideas, which ultimately could lead to something less than full and open discourse concerning a particular policy or decision.
{...}
Conversely, once a decision has been reached to pursue a particular project or course of action, one could argue that it is in the public interest to allow working papers to become public so that the thought process that led to that particular decision might be revealed. Arguably, the actual decision is only a part of the decision-making process, and keeping that process hidden leaves the public out of that process.
In resolving these competing policies by giving reasonable effect to the intent of the law, I must conclude that the working papers exemption was designed to provide an unfettered zone of privacy for the deliberative process.
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"In conclusion, the working papers exemption does not expire unless the working papers are disseminated or otherwise made public by the official to whom the exemption applies. Absent such a release, a record created by or for one of the named officials for his personal or deliberative use retains the characterization of a working paper. To the extent that this opinion reaches a different conclusion from previous opinions of this office, this opinion will guide future policy and application."
Virginia Freedom of Information Advisory Council
8/4/2011
http://foiacouncil.dls.virginia.gov/ops/04/AO_17_04.htm
Thank you for contacting this office. I hope that I have been of assistance.
Sincerely,
Maria J.K. Everett
Executive Director
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