BY HANK REICHMAN

Advocates of academic freedom generally find freedom of information laws beneficial.  Such laws enhance public knowledge and debate on the workings of government agencies, including public universities. But as a 2013 amicus brief filed by the AAUP and the Union of Concerned Scientists (UCS) pointed out, “in evaluating disclosure under FOIA, the public’s right to know must be balanced against the significant risk of chilling academic freedom that FOIA requests may pose.” As early as 1957 the Supreme Court recognized that politically motivated investigations of universities and scholars can have a chilling effect on academic freedom.  Hence, in some situations a balance must be struck between competing interests.

Two recent court decisions, however, would appear to strike the balance in a way that imperils academic freedom.

Michael Mann, professor at Pennsylvania State University and a member of AAUP’s Committee A, whose work on tree ring climate records resulted in “the hockey stick,” a graph of the last millennium of climate history that shows rapid warming at the end of a gradual cooling trend, has long been a favorite target of such FOIA suits.  Demands for Mann’s e-mails from a conservative advocacy group and then-Virginia Attorney General Ken Cuccinelli, prompted the AAUP-UCS brief.  Both suits were ultimately rejected by the courts.  But, having failed to get access to Mann’s e-mails, the same organization (now called the Energy & Environment Legal Institute) decided to go after one of Mann’s colleagues in a different state. The University of Arizona rebuffed a very broad 2011 FOIA request for the e-mails of Malcolm Hughes, part of the “hockey stick” team, and James Overpeck, a coordinating lead author of the 2007 IPCC report’s chapter on paleoclimate.

As Scott Johnson reports on the website arstechnica.com,

In 2013, E&E Legal took the university to court. The arguments employed in the case were revealing. Lawyers for the University of Arizona pointed out that if E&E Legal were truly interested in scientific questions about the tree ring research, they could have requested data or tried to replicate the analysis. Instead, they argued, they were feigning scientific concern in order to harass these scientists.

E&E Legal countered with an incredible hypothetical at one point: say a female cancer researcher hits a dead end and then goes on “mommy sabbatical” (their words) for 10 years. Suddenly, she has some sort of eureka moment and returns to academia. “I was just sitting around and folding clothes and I got it,” as the lawyer puts it.

In this case, E&E Legal argued, wouldn’t it have been preferable for a young student to be able to acquire all the researcher’s notes and preliminary data with a Freedom of Information request? They could have had that eureka moment nine years earlier and saved lives!

The court was not persuaded and denied the request.  E&E Legal appealed, arguing that the potential harm of disclosure was overblown, even citing a 1959 House Un-American Activities Committee case in which a university was unable to protect a professor from inquiry about alleged communist ties by appealing to the First Amendment.  The AAUP filed another amicus brief, but the appellate court ruled the judge shouldn’t have deferred to the university’s judgment of the potential harm of releasing the e-mails, meaning the case returned to the initial judge.  In June, that judge reversed his earlier decision. He wrote that many of the e-mails in question referred to work now old enough that it couldn’t be considered unpublished; the potential harm to the researchers wasn’t compelling enough.

Meanwhile, in Virginia, a suit was brought by the Competitive Enterprise Institute, led by lawyer Chris Horner—a long-time opponent of climate science who also works with E&E Legal. The targets this time were George Mason University professors Ed Maibach, who studies the communication of climate science, and Jagadish Shukla, a climate scientist.  They organized an open letter to the Obama administration last September supporting Senator Sheldon Whitehouse’s (D-RI) call for criminal investigations of fossil fuel industry corporations modeled after the tobacco cases of the 1990s. The letter was co-signed by 18 other scientists from a number of institutions.

Scott Johnson describes what happened in this case:

The open letter was initially hosted on the Web domain of the Institute of Global Environment and Society, a non-profit research organization founded by Shukla. The organization was in the process of being dissolved and folded into George Mason, but the website was still up at that point. (The PDF of the letter was later removed, and a statement described the posting as inadvertent.) Shukla quickly drew the ire of climate “skeptic” blogs and groups like the Competitive Enterprise Institute (CEI), which have accused him of misusing federal funding for personal gain. CEI filed a Freedom of Information Act request for any e-mails the George Mason professors on the letter had sent about it.

Maibach responded that while he had used his George Mason e-mail address to communicate with parties involved with the letter, those e-mails were private—written on his own time and not related to his job as a George Mason professor. Since private e-mails are excluded from FOIA rules, the university responded that there were no records to hand over. The lawsuit followed.

In April, George Mason lost that case and a judge ordered that the e-mails should be released. That’s when things got weird. The university appealed, but the court subsequently released a couple hundred pages of e-mails that had been held confidentially as examples during the earlier trial. At this point, George Mason decided there was no point in continuing the appeal, and so it prepped the other 1,500 pages of e-mails for release.

Maibach then got his own lawyer and filed to keep those e-mails under wraps so he could appeal the decision himself. Meanwhile, George Mason handed over the rest of the e-mails to the court—sealed since Maibach’s own case was pending. But CEI’s lawyers swooped in, neglected to mention Maibach’s pending case, and convinced the judge they could take the e-mails immediately.

A few days later, the e-mails were posted on the blog of popular climate “skeptic” Anthony Watts. They’re pretty mundane. Aside from all the hate mail received by the researchers that contained the FOIA search terms, the e-mails pretty much include what you’d expect from someone organizing a group letter. There are e-mails asking people if they’d like to sign on, e-mails asking people to look over drafts, and e-mails about the merits of the arguments made in the letter. A few are at least a little more unusual: advice that Jagadish Shukla ignore an interview request from Fox News, e-mails from Senator Whitehouse about backlash to the letter, and a vanilla response to the letter from the Obama administration’s Office of Science and Technology Policy Director John Holdren.

In the George Mason case, at least, the activity under fire wasn’t science, but advocacy on science’s behalf.  But in either case, as Lauren Kurtz of the Climate Science Legal Defense Fund has argued, “These sorts of lawsuits, regardless of outcome, subtract months of labor from the scientific endeavor and cost public universities hundreds of thousands of dollars in legal fees.”

As the AAUP stressed in Academic Freedom and Electronic Communications,

Allowing fleeting, often casual e-mail exchanges among scholars to be opened to inspection by groups bent on political attack implicates both privacy and academic freedom concerns. As Committee A previously noted in its report Access to University Records, “The presumption of confidentiality is strongest with respect to individual privacy rights; the personal notes and files of teachers and scholars; and proposed and ongoing research, where the dangers of external pressures and publicity can be fatal to the necessary climate of academic freedom.”

Hopefully, these decisions will be exceptions to a general rule protecting the essential confidentiality of ongoing scientific research.