PHILADELPHIA, April 24, 2014 — Cozen O’Connor attorney Peter J. Fontaine, co-chair of the firm's Utility, Environmental & Energy Practice Group, helped secure a precedential decision from the Supreme Court of Virginia holding that the electronic correspondence of former University of Virginia (UVA) faculty member and climate scientist, Dr. Michael Mann, is exempt from disclosure under Virginia’s Freedom of Information Act (FOIA). The ruling is noteworthy because it strongly affirms the right of Virginia public university faculty and the institutions that employ them to conduct academic research in a zone of privacy, which protects "free thought and expression."
On April 17, 2014, the Virginia Supreme Court affirmed a lower court ruling protecting the emails from disclosure to the American Tradition Institute (ATI), a special interest group. ATI had demanded that UVA produce Dr. Mann’s scholarly correspondence with other researchers and professional colleagues at multiple other research institutions from around the world, compiled while Mann was a UVA faculty member from 1999 to 2005. Fontaine, who represented Dr. Mann, worked on the case with Madelyn Wessel and Richard Kast, of UVA’s General Counsel’s office. Wessel and Kast delivered the oral argument.
“This ruling provides both legal and factual support for other states seeking to uphold the privacy and academic freedom rights of their public colleges and universities against anti-science groups, which promote a radical notion that correspondence of public university scholars should be treated the same as any other ’government agency record’ under public records laws,” Fontaine said.
The case began in 2011 when Virginia Delegate Robert Marshall (R-Prince William) and ATI filed a state FOIA request demanding that UVA produce thousands of Dr. Mann's emails. Dr. Mann, now a Distinguished Professor of Meteorology and the Director of the Earth System Science Center at Pennsylvania State University, has done groundbreaking work in the field of paleoclimatology, the study of earth's past climate. He is the author of “The Hockey Stick and the Climate Wars,” his personal account of the controversy manufactured by climate science deniers following the publication of his collaborative research showing an unprecedented rise in global temperatures coincident with the explosion in greenhouse gas emissions in the 20th Century. His research was featured in the 2001 “Third Assessment Report” of the Intergovernmental Panel on Climate Change (IPCC), which earned the 2007 Nobel Peace Prize. Dr. Mann’s seminal work has been replicated by numerous subsequent studies concluding that the warming of the earth’s climate since 1900 is unprecedented in at least the past 2,000 years due to greenhouse gas emissions, as documented in the IPCC’s latest “Fifth Assessment Report” released in January 2014. ATI denies that greenhouse gas emissions are contributing to climate change and opposes renewable energy and low carbon fuel standards.
The Virginia Supreme Court’s ruling is the first decision interpreting an exclusion added to Virginia’s FOIA in 1982 specifically to protect academic research and scholarly information and represents a significant victory for public universities and their faculty, according to Fontaine.
“If faculty at public universities can’t work in a zone of privacy in collaboration with their colleagues at private universities and institutions, the quality of their creative work will suffer and so too will the ability of public universities to continue to conduct high-quality research and other academic work in collaboration with private institutions not subject to the same ‘public records’ or ‘government sunshine laws,’” Fontaine said.
The Virginia Supreme Court stated in its ruling: “We reject ATI's narrow construction … because it is not consistent with the General Assembly's intent to protect public universities and colleges from being placed at a competitive disadvantage in relation to private universities and colleges. 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. This broader notion of competitive disadvantage is the overarching principle guiding application of the exemption.”
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