Virginia:
IN THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
The American Tradition Institute,
And Honorable Delegate Robert
Marshall,
Petitioners,
v.
The Rector and Visitors of
The University of Virginia,
Respondent,
and
Michael Mann,
Intervenor.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Civil Docket No. CL-1l-3236
BRIEF FOR AMICI CURIAE AMERICAN ASSOCIATION OF UNIVERSITY
PROFESSORS AND UNION OF CONCERNED SCIENTISTS
TABLE OF CONTENTS
INTERESTS OF AMICI CURIAE ..... .. ...... .................................................................................... 1
PRELIMINARY STATEMENT ........................ ............................................................................ 2
PETITIONERS' VIRGINIA FOIA REQUEST ............................................................................. 3
ARGUMENT .................................................................... .............................................................. 7
I.
Judicial Review Of FOIA Requests Includes Consideration Of The First
Amendment's Protection Of Academic Freedom ............................................................... 7
A
The First Amendment Protects Academic Freedom and Scholarly
Research from Undue Intrusion .......................................................................................... 7
B.
In Considering FOIA Requests for Academic Materials, the Public's
Right to Know Must Be Balanced Against the Risk of Chilling Effects
Posed by Overbroad Requests ............................................................................................ 9
II.
In this Case, the Need For Public Disclosure Does Not Outweigh the Significant
Impact on Academic Freedom that Requiring Disclosure of the Requested
Materials Would Have . ......... ........ .......... ...... .. ................. ... ...................... ....... ................. 14
CONCLUSION ............................................. .. .............................................................................. 19
TABLE OF AUTHORITIES
CASES
Adams v. Trustees ofUniv. ofNC-Wilmington, 640 F.3d 550 (4th Cir. 2011) .............................. 9
Arthur v. Ofjit, No. 09-1398,2010 WL 883745 (E.D. Va. Mar. 10,2010) ... .. ...... ....................... .15
Auvil v. CBS "60 Minutes ",67 F.3d 816 (9th Cir. 1995) .. .. .. .. ................. .. ..... .. ....... ... .................. 16
Board of Regents of State Colis. v. Roth, 408 U.S. 564 (1972) ........................................ .. ............ . 1
Branzburg v. Hayes, 408 U.S. 665 (1972) ................... .................................... .................... .. .. 11 , 12
Brown v. Commonwealth, 214 Va. 755,204 S.E.2d 429 (1974) .. ................ .. ...................... .. ...... 12
Butterworth v. Smith, 494 U.S. 624 (1990) ...................................................................... .. ...... .. .... 11
Clark v. Martinez, 543 U.S. 371 (2005) ................................................ ...... ........... ....................... 13
Columbia Union Coli. v. Oliver, 254 F.3d 496 (4th Cir. 2001) ................. .. .................................... 1
Corr v. Mazur, No. LL-3250-4, 1988 WL 619395 (Va. Cir. Ct. Nov. 22, 1988) .. .......................... 8
Crowell v. Benson, 285 U.S. 22 (1932) ................................... .. .................................................... 14
Cuccinelli v. Rector & Vistors ofUniv. of Va. , 283 Va. 420, 722 S.E.2d 626 (2012) .. .. .... ............ .4
Cusumano v. Microsoft Corp., 162 F.3d 708 (1st Cir. 1998) .. .. ................................................... .10
Dow Chem. Co. v. Allen, 672 F.2d 1262 (7th Cir. 1982) ................................. .. ............... .1 0, 11, 18
FTCv. American Tobacco Co., 264 U.S. 298 (1924) ..... ..... ...... .. ................................................. . 18
Feiner v. Mazur, No. LM-4053-3, 1989 WL 646381 (Va. Cir. Ct. Sept. 15, 1989) ........................ 8
Garcetti v. Ceballos, 547 U.S. 410 (2006) .. ......................... .. ........ .. .............. ........................... 9, 15
Immuno AG v. Moor-Jankowski, 567 N.E.2d 1270 (N.Y. 1991) .......... ................................... ...... 17
In re Grand Jury Subpoena, 829 F.2d 1291 (4th Cir. 1987) .. .................... .. ....... .. ............. ... .. 11 , 18
In re Grand Jury Subpoena to Amazon. com Dated August 7, 2006, 246 F.R.D. 570
(W.D. Wis. 2007) ............................................................................................................... 12
In re Philip Morris, Inc., 706 So. 2d 665 (La. Ct. App. 1998) ................... .. .. ............ ....... 11, 12, 16
11
Keyishian v. Board o/Regents ofUniv. o/State ofNY., 385 U.S. 589 (1967) ........................... 1, 8
Lubin v. Agora, Inc., 882 A.2d 833 (Md. 2005) ........................................................................... .12
Osborn v. Board o/Regents o/Univ. o/Wis., 647 N.W.2d 158 (Wis. 2002) ............................... .13
Philip Morris Cos. v. American Broad. Cos., No. LX-816-3, 1995 WL 1055921
(Va. Cir. Ct. July 11, 1995) ................................................................................................ 12
Regents o/Univ. o/Cal. v. Bakke, 438 U.S. 265 (1978) .................................................................. 7
Regents ofUniv. ofMich. v. Ewing, 474 U.S. 214 (1985) ........................................................ .1, 15
Reuber v. Food Chem. News, Inc., 925 F.2d 703 (4th Cir. 1991) ................................................. .16
Reyniak v. Barnstead International, No. 102688-08,2010 WL 1568424 (N.Y. Sup. Ct.
Apr. 6, 2010) ................ ................................ ........... ............................................. ...... .. 11, 16
Rust v. Sullivan, 500 U.S. 173 (1991) .................................................................................. ............ 8
SECv. Hirsch Org., Inc., No. M-18-304, 1982 WL 1343 (S.D.N.Y. Oct. 25,1982) .................... 12
Smith v. Virginia Commonwealth Univ., 84 F.3d 672 (4th Cir. 1996) ............................................ 1
Sussex Commons Associates LLC v. Rutgers, the State Univ. et al., ---A.3d----,
2012 WL 2579619 (N.J. July 5,2012) ............................................................................... 16
Sweezy v. New Hampshire, 354 U.S. 234 (1957) ............................................................. 7, 8, 18, 19
Tilton v. Richardson, 403 U.S. 672 (1971) ...................................................................................... 1
United States ex rei. Owens v. First Kuwaiti General Trading & Contracting Co.,
612 F.3d 724 (4th Cir. 2010) ............................................................................................. 15
University o/Pa. v. EEOC, 493 U.S. 182 (1990) ........ ............. ............................................. 2, 8, 18
Urofsky v. Gilmore, 216 F.3d 401 (4th Cir. 2000) ...................................................................... .1, 9
Wang v. FMC Corp., 975 F.2d 1412 (9th Cir. 1992) ..................................................................... 15
iii
STATUTES AND REGULATIONS
Va. Code § 2.2-3701 .... .. ..... .. .. ....... ... ........ ... ..... .... .. .... .. .. ... ....... .. .. .. ... ... .... ..... .. ........ .. .. .. ...... .. ........ 13
Va. Code § 2.2-3705.4 ........................................................................................................... 3, 9, 13
Va. Code § 2.2-3705.1 ....................................................... ............................................................ 13
Virginia Public Records Act § 42.1-77 .......................................................................................... 13
64 Fed. Reg. 43786 (Aug. 11, 1999) ................................. ............................................................. 13
OTHER AUTHORITIES
AAUP Policy Documents and Reports, 1940 Statement ofPrinciples on Academic
Freedom and Tenure (10th ed. 2006) ................................................................................. .1
Climate science attack group turns sight on Texas professors, The Institute for Southern
Studies (July 19, 2012), available at
http://www .southernstudies.orgl20 12/071c1imate-science-attack-group-turnssights-on-texas-professors.html .............................................................. ............................. 6
Climate Science in the Political Arena, Hearing Before the H. Select Comm. on Energy
Independence and Global Warming, 105th Cong., 2010 WLNR 10416569
(May 20,201 0) ....... ....................................... ...... ............................................................... 17
Kempner, Joanna, The Chilling Effect: How Do Researchers React to Controversy?,
5 PLoS Med. 1571 (2008), available at
http://www.ncbi.nlm.nih.gov/pmc/artic1esIPMC2586361 ................................................... 17
Letter from Union of Concerned Scientists to Attorney General Cuccinelli (May 26,
2010), available at http://www.ucsusa.orglassets/documents/scientificjntegrity/
Virginia-Scientist-Letter.pdf. ............................................................................................. 18
Levinson-Waldman, Rachel, Academic Freedom and the Public's Right to Know: How
to Counter the Chilling Effect ofFOIA Requests on Scholarship, available at
http://www.acslaw.orglpublicationslissue-briefs/academic-freedom-and-thepublic%E2%80%99s-right-to-know-how-to-counter-the-chillin ..................... .2, 13, 15, 17
National Academies of Science, Surface Temperature Reconstructions for the Last 2,000 Years
(2006), available for free download at http://www.nap.edulcatalog.php?record_id=11676 .......... 6
OMB Circular A-llO, available at http://clinton3.nara.gov/OMB/fedregl2ndnoticeallO.html ............. ... ........... .. ... .. ... ... ... ....... ... .. .... .... .. ..... ............. ... .. .. ... ..... ......................... 14
iv
Reed, Christopher S., Stuck in the Sunshine: The Implications of Public Records Statutes
on State University Research and Technology Transfer (2004), available at
http://ipmall.info/hosted_
resources/ip_courses/hersey_karen/Reed_Christopher_ Sunshine. pdf.............. ............................ 9
Who's is behind the 'information' attacks on climate scientists?, The Institute for
Southern Studies (Oct. 31, 2011), available at
http://www.southernstudies.org/2011/1 O/special-investigation-whos-behind-theinfonnation-attacks-on-c1imate-scientists.html ...................................................... ............. 7
v
INTERESTS OF AMICI CURIAE
Amici curiae American Association of University Professors and Union of Concerned
Scientists respectfully submit this brief in support of Intervenor Dr. Michael Mann and
Respondent the Rector and Visitors of the University of Virginia.
American Association of University Professors (AAUP) is a non-profit organization
representing the interests of over 48,000 faculty, librarians, graduate students, and academic
professionals who serve at institutions of higher education in Virginia and across the country.
Founded in 1915, AAUP is committed to the defense of academic freedom and the free exchange
of ideas. AAUP's policies are widely respected and followed in American colleges and
universities and have been cited by the Supreme Court ofthe United States. See, e.g., Board of
Regents o/State Colis. v. Roth, 408 U.S. 564, 579 n.17 (1972); Tilton v. Richardson, 403 U.S.
672, 681-82 (1971); AA UP Policy Documents and Reports, 1940 Statement 0/ Principles on
Academic Freedom and Tenure (10th ed. 2006) (endorsed by over 200 organizations). AAUP
frequently submits amicus briefs in cases that implicate AAUP policies or otherwise raise legal
issues important to higher education or faculty members. See, e.g., Regents 0/ Univ.
0/Mich.
v.
Ewing, 474 U.S. 214 (1985); Keyishian v. Board o/Regents o/Univ. of State o/NY, 385 U.S.
589 (1967); Urofsky v. Gilmore, 216 F.3d 401 (4th Cir. 2000) (en banc); Columbia Union Coil.
v. Oliver, 254 F.3d 496 (4th Cir. 2001); Smith v. Virginia Commw. Univ., 84 F.3d 672 (4th Cir.
1996). Since 1987, AAUP has also addressed the threat to academic freedom posed by overly
broad requests made under freedom of information laws and directed to public colleges and
universities. AAUP has expressed concern over demands for teaching and research materials at
institutions including the University of Wisconsin and Nassau Community College.
Union ofConcem ed Scientists (UCS}-an alliance of more than 400,000 citizens and
scientists-is the leading U.S. non-profit organization dedicated to the use of the sciences to
foster a healthy environment and a safe world. UCS combines independent scientific research
and citizen action to develop innovative and practical solutions to pressing environmental and
security problems and to secure responsible changes in government policy, corporate practices,
and consumer choices.
PRELIMINARY STATEMENT
Every state has "a mechanism that entitles citizens to request and obtain records produced
in the course of official acts."\ The intent of these statutes-often referred to as Freedom of
Infonnation Act ("FOIA") statutes- is to make the actions of public employees, institutions, and
representatives transparent and to foster accountability of the government to the people. 2 By
allowing public access to governmental operations, FOIA statutes serve a valuable public
function.
Even so, making every scholarly exchange vulnerable to a FOIA request in the name of
public disclosure poses a significant risk of chilling academic freedom. Scholars are reluctant to
discuss and explore controversial issues and to collaborate with one another, thereby
constraining one ofthe primary benefits of publicly-funded colleges and universities, should
their work be subject to FOIA disclosure. As the Supreme Court has warned, disclosure is
problematic if it will "direct the content of university discourse toward or away from particular
subjects or points of view." See University o/Pennsylvania v. EEOC, 493 U.S. 182, 198 (1990)
(distinguishing subpoenas that go to the heart of the principles protected by First Amendment
right to academic freedom). Accordingly, in evaluating the scope of disclosure to be pennitted
See Rachel Levinson-Waldman, Academic Freedom and the Public's Right to Know: How to
Counter the Chilling Effect of FOIA Requests on Scholarship at 1 (Sept. 8,2011) ("Academic Freedom
and the Public's Right to Know"), available at http;llwww.acslaw.org/publications/issue-briefs/academicfreedom-and-the-public%E2%80%99s-right-to-know-how-to-counter-the-chillin.
2
See id.
2
under FOIA, the public's right to know must be balanced against the significant risk of chilling
academic freedom that FOIA requests may pose.
Here the FOIA request of the American Tradition Institute ("ATI") and the Honorable
Delegate Robert Marshall (collectively, "Petitioners")-which seeks unpublished academic
research and correspondence among Dr. Mann and 39 named scientists-strikes at the heart of
academic freedom and debate and, as discussed in detail below, threatens to chill academic
research and debate. By contrast, the Petitioners have failed to articulate any basis beyond a
desire to "open to public inspection the workings of a government employee, including the
methods and means used to prepare scientific papers and reports that have been strongly
criticized for technical errors" to justify such a broad intrusion. In addition, they disregard the
exclusion under the Virginia Freedom ofInformation Act ("Virginia FOIA") for "[d]ata, records
or information of a proprietary nature produced or collected by or for faculty or staff of public
institutions of higher education ... in the conduct of or as a result of study or research on
medical, scientific, technical or scholarly issues . .. where such data, records or information has
not been publicly released, published, copyrighted or patented," Va. Code Ann. § 2.2-3705.4(4).
Amici assert the balance weighs in favor of protecting unpublished scientific research and related
correspondence from disclosure.
PETITIONERS' VIRGINIA FOIA REQUEST
On January 6,2011, the Petitioners submitted a Virginia Freedom of Information Act
Request ("Request,,)3 to the University of Virginia seeking to compel the Rector and Visitors of
University of Virginia (the "University") to produce certain materials that Dr. Michael Mann
"produced and/or received while working for the University of Virginia and otherwise while
3
The Request is attached as Attachment II to Affidavit of Attorney in Support of Petition for
Mandamus and Injunctive Relief (filed May 16,2011).
3
using its facilities and resources" (Request at p. 1). Dr. Mann, now on the faculty of The
Pennsylvania State University, is perhaps best known as the climate scientist who in 1998 and
1999 developed with colleagues the "hockey stick" model graph, which showed a slight cooling
trend from 1000 AD onward, with temperatures rising in the twentieth century. Dr. Mann is one
of many credentialed scientists studying climate change.
Citing to "Climategate" emails obtained illegally from the University of East Anglia in
2009 and a purported "cloud of controversy" surrounding Dr. Mann's academic work, the
Request seeks an exhaustive range of documents relating to Dr. Mann's academic work and
communications with other scientists. Specifically, the Request- which is almost identical to a
civil investigative demand served by the Virginia Attorney General 4 that was set aside-is
broadly framed and goes to the heart of scientific research and debate. Not only does it seek
"[ a]ny and all documents, drafts, things or data that were generated as a result of any activities
conducted pursuant to the Grants"S (Request No.5 at p. 10), it also demands "all computer
4
The Supreme Court recently rejected the Attorney General's efforts to obtain this information
when the Court determined that the University was not a "person" within the meaning ofFATA and thus
did not come within the purview of the Attorney General's subpoena power under that statute. See
Cuccinelli v. Rector & Visitors of University of Va., 283 Va. 420, 423, 722 S.E.2d 626,628 (2012).
The Request defines grants as: (1) "Decadal Variability in the Tropical Indo-Pacific: Integrating
Paleo & Coupled~Mode1 Results, NOAA-Climate Change Data & Detection (CCDD) [Program Principal
Investigators: M.E. Mann (V.Va), J. Cole (U. Arizona), V. Mehta (CRCES)] u. Va award (M.E. Mann):
$102,000"; (2) "Remote Observations ofIce Sheet Surface Temperature: Toward Aiulti-Proxy
Reconstruction ofAntarctic Climate Variability, NSF-Office of Polar Programs, Antarctic Oceans and
Climate System [Principal Investigators: M.E. Mann (U. Va), E. Steig (U. Wash.), D. Weinbrenner (u.
Wash)] U. Va award (M.E. Mann): $133,000"; (3) "Paleoclimatic Reconstructions of the Arctic
Oscillation, NOAA-Cooperative Institute for Arctic Research (CIFAR) Program [Principal Investigators:
Rosanne D' Arrigo, Ed Cook (Lamont/Columbia); Co-Investigator: M.E. Mann] U. Va subcontract (M.E.
Mann): $14,400"; (4) "Global Multidecadal-to-Century-Scale Oscillations During the Last 1000 Years,
NOAAClimate Change Data & Detection (CCDD) Program [Principal Investigator: Malcolm Hughes
(Univ. of Arizona); Co-Investigators: M.E. Mann; J. Park (Yale University)] U. Va subcontract (M.E.
Mann): $20,775"; and (5) "Resolving the Scale-wise Sensitivities in the Dynamical Coupling Between
Climate and the Biosphere, University of Virginia-Fund for Excellence in Science and Technology
(FEST) [Principal Investigator: J.D. Albertson; Co-Investigators: H. Epstein, M.E. Mann] U. Va internal
award: $214,700." Request No.4 at p. 10.
4
algorithms, programs, source code or the like created or edited by Dr. Mann .. . from January 1,
1999, to the present" that Dr. Mann used in his "day to day research or to produce any work
product or result" (Request No.9 at pp. 10-11). It further seeks "any data, information or
databases, structured or unstructured information, source code and formulas that may be stored
in any format or media type, including but not limited to, back-up copies used for archive,
continuity or disaster recovery purposes that was used in any way in connection with the
application for or as a result of any of the Grants" (Request No.1 0 at p. 11).
The Request also attempts to obtain Dr. Mann's exchanges with other scientists. It seeks
all "correspondence, messages or e-mails" between Dr. Mann and 39 named scientists and
academics, as well as all documents that "are in any way related to" correspondence with any of
these individuals and any documents that reference the 39 named scientists (Request Nos. 1,2
and 3 at pp. 7-9). The requests directed to Dr. Mann's correspondence with other scientists are
not limited to the Grants or his work as a faculty member of the University of Virginia.
The breadth of the Request is confirmed by the number of documents resulting from
preliminary searches performed by the University. According to the University, approximately
32,269 email messages and 1,793 additional documents were identified as potentially responsive
to the Request. See Exhibit 1 to Memorandum in Opposition to Verified Petition for Mandamus
and Injunctive Relief Opposition to Petition (filed May 24,2011).
The Verified Petition for Mandamus and Injunctive Relief ("Petition"), filed with this
Court on May 16, 2011, makes clear that the Request is targeting documents and emails
associated with Dr. Mann's academic work on climate change. Specifically, the Petition notes
that Dr. Mann coauthored two articles published in 1998 and 1999-prior to Dr. Mann's arrival
at the University-which "gained prominence in the' global warming' and related policy
5
communities." Petition,-r 58. Petitioners contend that "[t]hese publications revised what had
previously been accepted as the historical temperature record of the past approximately 1,000
years, dropping periods known as Medieval Warm Period (or 'Climate Optimum') and 'Little Ice
Age' from that record, and were elevated by groups like the United Nations intergovernmental
Panel on Climate Change (lPCC) in its 2001 'Third Assessment Report. ", Id.,-r 59. According
to Petitioners, Dr. Mann's published works "have driven local, national and international policy
decisions" and "measurably increased the cost ofliving without any return on the quality oflife."
Id. ,-r 60.
In an effort to justify the broad scope of the Request, Petitioners contend that the
documents "will open to public inspection the workings of a government employee, including
the methods and means used to prepare scientific papers and reports that have been strongly
criticized for technical errors." Id. ,-r 63. In support of this statement, Petitioners also contend
that documents produced in response to the Request "have the potential to display employee
behavior that may not meet the high standards of the University and its honor code." Id.6
Petitioners' efforts to obtain unpublished personal emails.scientific deliberation and
scholarship from the University are part of a larger scale effort. Petitioners have filed at least
four requests in Texas targeting researchers at public universities: two at Texas Tech University
and Texas A&M. 7 Petitioners have also filed requests for emails and records from a federal
6
Despite Petitioners' claims, when Dr. Mann's work has been reviewed, it has been upheld as
scientifically valid. See, e.g., National Academies of Science, Surface Temperature Reconstructions for
the Last 2,000 Years (2006), available for free download at
http://www.nap.edulcatalog.php?record_id=11676.
7
Climate science attack group turns sight on Texas professors, The Institute for Southern Studies,
(July 19, 2012), available at http://www .southernstudies.orgl20 12/07Iclimate-science-attack-group-turnssights-on-texas-professors.html.
6
scientist at NASA. 8
ARGUMENT
I.
JUDICIAL REVIEW OF FOIA REQUESTS INCLUDES CONSIDERATION OF
THE FIRST AMENDMENT'S PROTECTION OF ACADEMIC FREEDOM
Amici do not argue that academic institutions or their faculty and staff are immune or
exempt from responding to Virginia FOIA requests. However, the First Amendment's protection
of academic freedom is relevant to the Request. And in situations where FOIA requests target
information subject to that protection, courts must balance the public's right to disclosure of such
information against the significant chilling effects that will result if scholars or institutions face
FOIA requests-seeking internal deliberative materials--based solely on the fact that the research
methods and conclusions reached are unpopular or controversial.
A.
The First Amendment Protects Academic Freedom and Scholarly Research
from Undue Intrusion.
"Academic freedom, though not a specifically enumerated constitutional right, long has
been viewed as a special concern of the First Amendment." Regents of Univ. of Cal. v. Bakke,
438 U.S. 265, 312 (1978). Starting in the late 1950s, in response to threatened incursions by
state legislatures and attorneys general into the operations of universities, the Supreme Court
accorded special attention to academic freedom, including it within the free speech protections of
the First Amendment. See Sweezy v. New Hampshire, 354 U.S. 234 (1957) (plurality).
In Sweezy, a professor at the University of New Hampshire was interrogated by the
state's Attorney General about his classroom lectures and political affiliations. After refusing to
answer specific questions before a judge, Professor Sweezy was found in contempt and thrown
injail. A plurality of the Supreme Court held that Professor Sweezy's "liberties in the areas of
8
Who's is behind the 'iriformation' attacks on climate scientists?, The Institute for Southern
Studies (Oct. 31, 2011), available at http://www .southernstudies.orgl20 1111 O/special-investigation-whosbehind-the-infonnation-attacks-on-climate-scientists.html.
7
academic freedom and political expression" had been invaded and warned that these areas are
ones in which "government should be extremely reticent to tread." Id. at 250. Recognizing the
importance of preserving academic freedom from undue intrusion, the Court stated:
The essentiality of freedom in the community of American universities is
almost self-evident. No one should underestimate the vital role in a democracy
that is played by those who guide and train our youth. To impose any strait jacket
upon the intellectual leaders in our colleges and universities would imperil the
future of our Nation. No field of education is so thoroughly comprehended by
man that new discoveries cannot yet be made.... Scholarship cannot flourish in
an atmosphere of suspicion and distrust. Teachers and students must always
remain free to inquire, to study and to evaluate, to gain new maturity and
understanding; otherwise our civilization will stagnate and die.
Id. at 250; see also id. at 262 (Frankfurter, J., concurring) ("Political power must abstain from
intrusion into this activity of freedom, pursued in the interest of wise government and the
people's well-being, except for reasons that are exigent and obviously compelling."); Keyishian
v. Board of Regents ofUniv. of State of NY., 385 U.S. 589, 603 (1967) ("Our Nation is deeply
committed to safeguarding academic freedom, which is of transcendent value to all of us and not
merely to the teachers concerned."); University ofPa. v. EEOC, 493 U.S. 182, 198 (1990)
(suggesting that, in some circumstances, the burden imposed by a government subpoena could
"direct the content of university discourse toward or away from particular subjects or points of
view"); Rust v. Sullivan, 500 U.S. 173, 200 (1991) ("[T]he university is a traditional sphere of
free expression so fundamental to the functioning of our society.").
The Commonwealth's courts have likewise recognized the importance of academic
freedom. See Feiner v. Mazur, No. LM-4053-3, 1989 WL 646381, at *2 (Va. Cir. Ct. Sept. 15,
1989) (considering impact on academic freedom in ruling on motion to compel); Corr v. Mazur,
No. LL-3250-4, 1988 WL 619395, at *2 (Va. Cir. Ct. Nov. 22, 1988) (describing academic
freedom as "basic to our society"). And the United States Court of Appeals for the Fourth
Circuit recently reiterated the First Amendment protections afforded to scholarship. Adams v.
8
Trustees ofUniv. ofNC-Wilmington, 640 F.3d 550, 557, 561-64 (4th Cir. 2011) (noting that
speech involving scholarship and teaching implicated First Amendment protection afforded to
academic freedom).9
These interests are embodied in the Virginia Freedom of Information Act itself. The Act
specifically exempts from disclosure "[ d]ata, records or information of a proprietary nature
produced or collected by or for faculty or staff of public institutions of higher education .. . in
the conduct of or as a result ofstudy or research on medical, scientific, technical or scholarly
issues . .. where such data, records or information has not been publicly released, published,
copyrighted or patented." Va. Code Ann. § 2.2-3705.4(4) (emphasis added). This exemption,
which reinforces the importance of protecting non-public scholarly research from unwarranted or
premature disclosure, makes Virginia one of few "Research Encouraging" states. 10
These many authorities confirm that, in determining the propriety of a FOIA Request, the
First Amendment's protection of academic freedom is an appropriate and, indeed, a necessary
consideration.
B.
In Considering FOIA Requests for Academic Materials, the Public's Right to
Know Must Be Balanced Against the Risk of Chilling Effects Posed by
Overbroad Requests.
Amici fully embrace the University'S obligation to respond appropriately to open public
records requests and recognize that freedom of information laws are critical for keeping public
9
Urofsky v. Gilmore, 216 F.3d 401 (4th Cir. 2000) (en banc), is inapplicable as amici do not
contend that professors are somehow exempt from laws of general applicability. Rather, the point is that,
as the Fourth Circuit recently recognized in a different context, academic scholarship "'implicates
additional constitutional interests'" that are to be taken into account in applying Virginia FOIA. Adams,
640 F.3d at 564 (quoting Garcetti v. Ceballos, 547 U.S. 410, 425 (2006)).
10
See Christopher S. Reed, Stuck in the Sunshine: The Implications ofPublic Records Statutes on
State University Research and Technology Transfer 8, 11 (2004), available at http://ipmall.info/hosted_
resources/ip_courseslhersey_karenlReed_Christopher_Sunshine.pdf; see also id. at 8-12 (as of 2004, 18
states, including Virginia, had FOIA statutes protecting academic work product from disclosure).
9
institutions and their employees accountable to the people who support them. But the public's
right to know-just like a civil litigant's right to discover evidence or the government's right to
investigate crime-must be balanced against the equally important obligation to protect and
preserve a scientist's ability to freely conduct research and correspond with other researchers for
the bettennent of society. Moreover, the potential of FOIA to chill academic research and debate
counsels in favor of a broad reading of the exclusion for non-public scholarly and research
materials. The point is that, in detennining whether such a FOIA request is proper, the public's
interest in disclosure must be weighed against the chilling effects that forced disclosure of such
materials may cause.
This balancing approach is often taken by courts when considering subpoenas targeted to
academic research and debate. In these cases, courts have balanced the First Amendment
protection of academic freedom against the interests underlying a request for production and, in
many cases, detennined to safeguard the First Amendment protection of academic freedom
against overbroad demands that threaten to chill scholarly research and inquiry. For example, in
Cusumano v. Microsoft Corp., 162 F.3d 708 (1st Cir. 1998), the First Circuit upheld the district
court's refusal to compel production of research materials compiled by two academic
investigators. "Mindful that important First Amendment values are at stake" and recognizing
that "compelling the disclosure of . . . research materials . .. denigrat[ es] a fundamental First
Amendment value," the First Circuit held that "when a subpoena seeks divulgement of
confidential infonnation compiled by a journalist or academic researcher in anticipation of
publication, courts must apply a balancing test." Id. at 710, 716, 717. Similarly, in Dow
Chemical Co. v. Allen, 672 F.2d 1262, 1265-66 (7th Cir. 1982), the Seventh Circuit upheld a
district court's refusal to enforce an administrative subpoena that sought to compel researchers
10
from the University of Wisconsin to produce notes, working papers, and raw data relating to
ongoing, incomplete studies. The Seventh Circuit stressed that "respondents' interest in
academic freedom may properly figure into the legal calculation of whether forced disclosure
would be reasonable" and that when a subpoena intrudes into "the sphere of university life," the
"interests of government must be strong and the extent of intrusion carefully limited." Id. at
1274-75; 1276-77. 11
The burden on First Amendment interests and the risk of chilling effects are particularly
problematic when the request for documents is not narrowly tailored, but casts a very wide net.
For example, in Reyniak v. Barnstead International, No. 102688-08,2010 WL 1568424, at *2
(N.Y. Sup. Ct. Apr. 6, 2010), a party subpoenaed a hospital for "all correspondence exchanged
between Dr. Irving Selikoff and third parties" relating to asbestos research. Relying in part on "a
scholar's right to academic freedom," the court granted the hospital's motion for a protective
order and found that the expense the hospital would incur as a result of such a broad
interpretation of the subpoena "could well discourage other institutions from conducting vital
health and safety research." Id. at 3. Similarly, in In re Philip Morris, Inc., 706 So. 2d 665,666
(La. Ct. App. 1998), the court affirmed the trial court's rejection of a subpoena duces tecum
seeking production of "all raw data including computer tapes andlor disks and supporting
documentation" in connection with research relating to causes of cancer. The appellate court
II
Indeed, even in the context of a criminal investigation, First Amendment protections are to be
weighed in the balance. See, e.g., Butterworth v. Smith, 494 U.S. 624, 630 (1990) (noting that "grand
juries are expected 'to operate within the limits of the First Amendment'''); Branzburg v. Hayes, 408 U.S.
665, 710 (1972) (Powell, J., concurring) ("The asserted claim to privilege should be judged on its facts by
the striking of a proper balance between freedom of the press and the obligation of all citizens to give
relevant testimony with respect to criminal conduct."); In re Grand Jury Subpoena, 829 F.2d 1291, 129798 (4th Cir. 1987) (noting the public's undoubted "right to every man's evidence" does not give
government, for example, "an unlimited right to access to [private parties '] papers with reference to the
possible existence of [illegal] practices" and "[i]t is contrary to the first principles of justice to allow a
search through all [a corporation's] records, relevant or irrelevant, in the hope that something will turn
up") (internal quotations omitted).
11
recognized that such "[b ]lanket subpoenas .. . may deter scientists from engaging in research in
particular fields." Id. at 668. Numerous courts have conducted a similar balancing in the context
of efforts to compel production of other material protected by the First Amendment, such as
subscriber and membership lists. 12
In addition, the Virginia Supreme Court has taken such a balancing approach in
connection with other First Amendment interests, such as the reporter's privilege. In Brown v.
Commonwealth, 214 Va. 755, 757-58, 204 S.E.2d 429,431 (1974), the Court upheld a trial
court's determination that a reporter should not be compelled to disclose her confidential source
in a criminal trial, even though it might infringe a defendant's right to impeach the credibility of
the prosecution's witnesses. Id. The Court recognized that the confidentiality of sources is an
"important catalyst to the free flow of information guaranteed by the freedom of press clause of
the First Amendment." Id. at 757. The Court determined that, although not an absolute right, the
reporter's privilege should yield "only when the defendant's need is essential to a fair trial," and
that whether a need is "essential" "must be determined from the facts and circumstances in each
case." Id.; see also Philip Morris Cos. v. American Broad. Cos., No. LX-816-3, 1995 WL
1055921, at *2 (Va. Cir. Ct. July 11, 1995) (recognizing that the reporter's privilege of
confidentiality of information is related to the First Amendment and employing the balancing
test articulated in Branzburg v. Hayes, 408 U.S. 665 (1972».
12
See Lubin v. Agora, Inc., 882 A.2d 833, 842 (Md. 2005) (holding that, in order to enforce a
subpoena for a subscriber list, First Amendment concerns required that the state establish a substantial
relation between the information sought and an overriding and compelling interest); SEC v. Hirsch Org. ,
Inc., No. M-18-304, 1982 WL 1343 (S.D.N.Y. Oct. 25,1982) (citing First Amendment interests in
denying enforcement of an investigative subpoena requesting a subscriber list); In re Grand Jury
Subpoena to Amazon. com Dated August 7, 2006, 246 F.R.D. 570, 573 (W.D. Wis. 2007) (holding that
courts must consider First Amendment concerns in determining whether to compel compliance with
subpoena seeking customer list).
12
This balancing approach, which has also been employed in the FOIA context,13 counsels
in favor of a broad understanding of the Virginia legislature's intent to protect academic research
and scholarship from records requests-an exception that covers most, if not all, of the materials
at issue here. 14 See Va. Code § 2.2-3705.4(4). Specifically, the Virginia legislature has
demonstrated a desire to protect academic freedom by excluding certain "educational records and
certain records of educational institutions" from Virginia FOIA's reach. To the extent this court
finds that Dr. Mann's correspondence with scientists concerning academic research and debate
are "public records" that are not otherwise protected by exclusions to FOIA,15 Section 2.23705 .4(4) should be read broadly to cover that correspondence, thereby avoiding the serious
constitutional questions that disclosure under FOIA would cause. 16 Cf Clark v. Martinez, 543
13
For example, in Osborn v. Board o/Regents, 647 N.W.2d 158 (Wis. 2002), although the court
ultimately found that the documents should be released, the Court observed that although there is a
presumption of open access to public records, "the right to inspect ... is not absolute" and the custodian
must "weigh the competing interests involved and determine whether permitting inspection would result
in harm to the public interest which outweighs the legislative policy recognizing the public interest in
allowing inspection." Id. at 166 (internal quotation maries omitted).
14
Moreover, such balancing works to harmonize the treatment of academic research across different
methods for disclosure to ensure that one approach does not simply become a way of circumventing the
other. See Levinson-Waldman, Academic Freedom and the Public's Right to Know at 8-12, supra n. 1.
15
Although amici do not here address the intricacies of the Virginia FOIA, we note that other
exceptions to Virginia FOIA may apply to protect the requested information from disclosure, including
the scholastic records exception (Va. Code § 2.2-3705.4(1» and the personnel records exception (Va.
Code § 2.2-3705.1). In addition, to the extent the documents sought are not "public records" as defined
by the Virginia Public Records Act, § 42.1-77 (Le., recorded information "produced, collected, received
or retained in pursuance of law or in connection with the transaction of public business"), then they
cannot be "public records" under Va Code § 2.2-3701 (i.e., writings or recordings "prepared or owned by,
or in the possession of a public body or its officers, employees or agents in the transaction of public
business. Records that are not prepared for or used in the transaction of public business are not public
records.").
16
Reading Section 2.2-3705.4.4 to protect the types of materials sought in the Request, including
correspondence concerning scientific research, is consistent with federal law that excludes "preliminary
analyses, drafts of scientific papers, plans for future research, peer reviews, or communications with
colleagues" from a federal law requiring federal agencies awarding grants to institutions of higher
education, hospitals and other non-profit organizations to ensure that "all data produced under an award
will be made available to the public through the procedures established under the Freedom of Information
Act." See 64 Fed. Reg 43786, 43789 (Aug. 11, 1999). In finalizing this exclusion, the Office of
13
u.s. 371,380-81 (2005) (interpreting statute to avoid constitutional questions); Crowell v.
Benson, 285 U.S. 22, 62 (1932) (same).
II.
IN THIS CASE, THE NEED FOR PUBLIC DISCLOSURE DOES NOT
OUTWEIGH THE SIGNIFICANT IMPACT ON ACADEMIC FREEDOM THAT
REQUIRING DISCLOSURE OF THE REQUESTED MATERIALS WOULD
HAVE.
The Request-which seeks, among other things, "all computer algorithms, programs,
source code or the like created or edited by Dr. Michael Mann . . . from January 1, 1999, to the
present" that Dr. Mann used in his "day to day research or to produce any work product or
result" and all "correspondence, messages or e-mails" to or from Dr. Mann and 39 named
scientists and academics, as well as all documents "that are in any way related to"
correspondence with any of these individuals or even reference those individuals (see, e.g.,
Request Nos. 1,2,3, 9)-sweeps well beyond any reasonable request for public disclosure
relating to public policy on climate change or the government's use of Dr. Mann's scholarship to
form policy. Dr. Mann is not a policy maker; nor does he implement policy. He is a scientist
and an academic, and his unpublished research and internal communications with scientists are
not part of the policy making function. If the Petitioners are interested in how Dr. Mann's
scholarship forms policy (as suggested in the Petition), then the Petitioners' should direct FOIA
requests to the policy makers and what they actually considered- not the scientist or his
unpublished research and correspondence with scientists. 17
Management and Budget recognized that "[a]s in many other fields of endeavor, scientists need a private
setting where they are free to deliberate over, develop, and pursue alternative approaches. When a
scientist completes research, he or she publishes the results for the scrutiny of other scientists and the
community at large. In light of this traditional scientific process, OMB does not construe the statute as
requiring scientists to make research data publicly available while the research is still ongoing, because
that would force scientists to 'operate in fishbowl' and to release information prematurely." See OMB
Circular A-I 10, available at http://clinton3.nara.gov/OMB/fedreg/2ndnotice-all0.html.
17
FOIA statutes target activity carried out by public officials or on behalf of the public. Although
amici do not contend that faculty members are always outside the purview of FOIA laws, faculty
14
Moreover, the Petitioners' effort to justify the intrusion into academic freedom based on a
suggestion of errors in Dr. Mann's research does not favor disclosure. Though Petitioners
suggest that Dr. Mann's work has been criticized for "technical errors," Petition ~ 63, scientific
errors are not wrongdoing that could warrant public disclosure or create a sufficient public
interest in forced disclosure. Cf Wang v. FMC Corp., 975 F.2d 141 2, 1421 (9th Cir. 1992)
(upholding summary judgment for defendants and distinguishing between "wrongdoing" and
"scientific errors"); United States ex rei. Owens v. First Kuwaiti General Trading & Contracting
Co., 612 F.3d 724, 734 (4th Cir. 2010) (distinguishing between the type of false statements
sufficient to support a claim of fraud and "honest disagreements, routine adjustments and
corrections, and sincere and comparatively minor oversights). 18 Progress in science rests upon
robust give-and-take in the scientific literature, a rigorous process testing the validity of
propositions, data, and conclusions. Many researchers, including scientists critical of Dr.
Mann's work, have weighed in on the scholarly debate. This peer review, not public disclosure
of unpublished data, research, and every correspondence on the subject, is what ensures the
honesty and quality of academic scholarship. Cf Regents ofUniv. ofMich. v. Ewing, 474 U.S.
214, 225 (1985) ("When judges are asked to review the substance of a genuinely academic
decision, . .. they should show great respect for the faculty's professional judgment. Plainly,
members are distinct from other public employees. "Faculty members are not hired to pursue a particular
governmental agenda, but instead ... to engage in creative and innovative scholarship, research and
teaching. " Levinson-Waldman, Academic Freedom and the Public's Right to Know at 19, supra n. 1; see
also Garcetti, 547 U.S. at 437 (Souter, J., dissenting) ("Some public employees are hired to 'promote a
particular policy' by broadcasting a particular message set by the government, but not everyone working
for the government, after all, is hired to speak from a government manifesto.").
18
Analogous principles arise in defamation suits based on controversial scientific statements. For
instance, in Arthur v. Offit, No. 09-1398, 2010 WL 883745, at *4 (E.D. Va. Mar. 10,2010), the court
dismissed a defamation suit arising from a scientific debate about mandatory vaccinations and their link
to autism because the statement at issue was not a fact "capable of being proven true or false." The court
also noted that "[c ]ourts have a justifiable reticence about venturing into the thicket of scientific debate."
Id. at 6.
15
they may not override it unless it is such a substantial departure from accepted academic nonns
as to demonstrate that the person or committee responsible did not actually exercise professional
judgment." (footnote omitted».
In addition, the need for public disclosure relating to unsupported allegations that Dr.
Mann instructed individuals to delete emails or engaged in efforts to "stop the publication of
scientific contributions from individuals and institutions who disagree with Mann's work"
(Petition ,-r,-r 61, 62) also does not justify the breadth of the Request or the intrusion on academic
freedom that such broad requests will have. 19 The chilling effect of broad FOIA requests and
other tools for disclosure are widely recognized. Seeking to avoid the stigma involved in
responding to a fraud investigation, professors would hesitate to research, publish, or teach on
potentially controversial subjects. See, e.g., Philip Morris, 706 So. 2d at 667-68. Universities
would similarly hesitate to employ, or otherwise support the scholarship of, professors whose
research challenges conventional thinking, fearing the considerable costs involved in complying
with investigations and FOIA requests of entire bodies of academic scholarship, research and
correspondence. See, e.g., Reyniak, 2010 WL 1568424, at *3; see also Reuber v. Food Chem.
News, Inc., 925 F.2d 703 , 706, 718 (4th Cir. 1991) (en banc) (requiring actual malice in
defamation case involving scientific debate and noting that a lesser showing "would have [had]
the ironic effect of stifling debate within the community of scientists at a time when the
implications of scientific research are ever more far reaching"); Auvil v. CBS "60 Minutes ", 67
F.3d 816, 822 (9th Cir. 1995) (per curiam) (expressing concern over "the spectre of a chilling
19
Allowance of such broad requests also places an undue administrative burden on the University.
Cf Sussex Commons Associates v. Rutgers, the State University, et al., --- A.3d ---, 2012 WL 2579619, at
*9 (N.J. July 5, 2012) (finding public law school clinics exempt from state Open Public Records Act and
noting that when requests are phrased "without limitation," law schools would still have to "shoulder the
administrative burden of preparing for, responding to, and possibly litigating over each item requested.").
16
effect on [scientific] speech" when scientific speech is challenged on the basis of its truth or
falsity); Immuno AG v. Moor-Jankowski, 567 N.E.2d 1270, 1282 (N.Y. 1991) (dismissing libel
action involving scientific debate and noting that "[t]he chilling effect of protracted litigation" in
such a case "can be especially severe").
Such chilling effects are not speculative. See Joanna Kempner, The Chilling Effect: How
Do Researchers React to Controversy?, 5 PLoS Med. 1571 (2008).20 The Kemper study examined
National Institutes of Health (NIH) grant recipients whose research was questioned in
congressional hearings. Over half of the researchers studied engaged in self-censorship following
the experience. Researchers "reframed studies, removed research topics from their agendas, and,
in a few cases, changed their jobs." Id. at 1576; see also Climate Science in the Political Arena,
Hearing Before the H. Select Comm. on Energy Independence and Global Warming, 105th Cong.,
2010 WLNR 10416569 (May 20,2010) (statement of Benjamin D. Santer) ("I firmly believe that I
would now be leading a different life if my research suggested that there was no human effect on
climate. I would not be the subject of Congressional inquiries, Freedom of Information Act
requests, or e-mail threats . ... It is because of the research I dcr-and because ofthe findings my
colleagues and I have obtained-that I have experienced interference with my ability to perform
scientific research."); Levinson-Waldman, Academic Freedom and the Public's Right to Know at
5-7, supra n. 1. (highlighting chilling impact of broad FOIA requests and disclosure demands).
Moreover, where the FOIA request also seeks correspondence with other academics, as
Petitioners do here, enforcement of a broad demand will invariably chill intellectual debate
among researchers and scientists. While it is true that academics expect that published research
will be subject to public disclosure, the correspondence the Petitioners seek would include not
20
See Joanna Kempner, The Chilling Effect: How Do Researchers React to Controversy?, 5 PLoS
Med. 1571 (2008), available at http://www.nchi.n1m.nih.gov/pmc/artic1esIPMC2586361.
17
only final conclusions, but also initial thoughts, suspicions, and hypotheses. Exposing these
thoughts to the public eye would inhibit researchers from speaking freely with colleagues, with
no discernable countervailing benefit-a concern emphasized by the Seventh Circuit in the
context of a subpoena seeking disclosure of scientific research:
[E]nforcement of the subpoenas would leave researchers with the knowledge . . .
that the fruits of their labors had been appropriated by and were being scrutinized
by a not-unbiased third party whose interests were arguably antithetical to theirs.
It is not difficult to imagine that that realization might well be both unnerving and
discouraging. Indeed, it is probably fair to say that the character and extent of
intervention would be such that, regardless of its purpose, it would "inevitably
tend[] to check the ardor and fearlessness of scholars, qualities at once so fragile
and so indispensable for fruitful academic labor."
Dow Chem. Co., 672 F.2d at 1276 (quoting Sweezy, 354 U.S. at 262 (Frankfurter, J.,
concurring)).21
Amici do not contend that the Petitioners are barred from making a FOIA request
directed to academic research materials. But here the apparent explanation for the intrusion is
that the Petitioners wish to review years of Dr. Mann's research and scholarly interactions with
other scientists, not because there is any justified suspicion of nefarious activities, but because
the Petitioners "'hope that something will tum up. '" Grand Jury Subpoena, 829 F.2d at 1298
(quoting FTC v. American Tobacco, 264 U.S. 298, 305 (1924)). As noted, allowing FOIA
requests to burden a university with a broad-ranging document demands based on questions
concerning the scientific validity of a researcher's work or on the potential that something might
tum up would have the strong potential to "direct the content of university discourse toward or
away from particular subjects or points of view," University of Pennsylvania, 493 U.S. at 198,
21
See also Letter from Union of Concerned Scientists to Attorney General Cuccinelli (May 26,
2010), available at http://www .ucsusa.org/assets/documents/scientific_integrity/ Virginia-ScientistLetter.pdf (letter from over 800 Virginia scientists and academics expressing concern over impact of
investigation of scientific scholarship and debate, including that researchers might "fear[] that any
individual statement or email will be taken out of context").
18
and will have a significant chilling effect on scientific and academic research and debate. See
Sweezy, 354 U.S. at 250 (plurality) ("Scholarship cannot flourish in an atmosphere of suspicion
and distrust.").
CONCLUSION
For the foregoing reasons and in light of the First Amendment principles at stake, amici
urge this Court to protect unpublished scientific research materials and related correspondence
among scientists from public disclosure under the Virginia Freedom of Information Act.
Dated: July 24,2012
Respectfully submitted,
Of Counsel:
Theresa Chmara, General Counsel
Nancy Long
American Association of
University Professors
1133 19th Street, Suite 200
Washington, D.C. 20036
(202) 737-5900
Fax: (202) 737-5526
tchmara@verizon.net
nlong@aaup.org
Counsel for American Association of
University Professors
250 Greenwich Street
New York, New York 10007
Tel: (212) 230-8800
Fax: (212) 230-8888
Email: lisa.ewart@wilmerhale.com
Counsel for American Association of
University Professors and Union of
Concerned Scientist
22
Admitted to practice in the District of Columbia and the State of Virginia. Not admitted to
practice in the State of New York. Practice supervised by members of the firm who are members of the
New York Bar.
19