Washington Post on the Mann FOIA Case

The Northern Virginia reporter for the Washington Post discusses the current state of the ATI FOIA case here.

Lat fall, Mann decided that the University of Virginia was not protecting his interests vigorously enough and moved to be added as a party to the case. Subsequently, the university sent the dossier to Mann, who is no longer an employee.

ATI has applied for the documents provided to Mann, arguing that they can’t give the documents out selectively, citing a 1983 precedent. Several leading Virginia FOIA experts told the Washington Post that ATI has a good argument.

UVA lawyers defended the selective disclosure saying that Mann was “not an adverse party essentially” and, using a not entirely apt phrase, explained that they were “sharing information with a teammate as opposed to the other side”. Ironically, Mann originally asked to be a separate party to the litigation because he felt that “his interest is not currently being adequately protected” – a position that seems inconsistent with UVA’s present position that they are “teammates”.

In addition, ATI has applied to depose Mann on his affidavit, a pretty standard aspect to civil cases. Mann has argued that he should not have to be deposed, with his main argument being (more or less) that ATI are bad people, a perspective frequently held by parties in civil litigation, but not relevant to mundane procedures like depositions.

Mann called ATI’s argument “disingenous”. Mann contradicted the FOIA experts interviewed by the Washington Post:

I’m a bit surprised that anyone professing to be familiar with the law would believe that [ATI’s] argument has any merit at all,”

102 Comments

  1. Stephen Singer
    Posted Mar 20, 2012 at 7:09 PM | Permalink

    So, now Mann is also a legal expert huh? Wonder what else he is we don’t yet know.

    • Posted Mar 21, 2012 at 4:36 AM | Permalink

      >Mann contradicted the FOIA experts

      But they were not climate FOIA experts

    • Nathan
      Posted Mar 22, 2012 at 7:03 AM | Permalink

      No Stephen if you read the article you will see:

      ““I am not a lawyer, but I have legal experts advising me on this matter, and they say the matter is quite clear: There is no waiver where the parties have a common interest in the documents, including a shared copyright interest and a shared proprietary interest in protecting your scholarly works under the scholarly works exemption to FOIA statute. If the records were not my emails it would be a different story. Of course, the records are my emails. ATI’s argument is way off-base and, indeed, quite disingenuous.””

      So he’s claiming to NOT be an expert.

      • Posted Mar 22, 2012 at 12:14 PM | Permalink

        Of course he has lawyers and defers to them, and his lawyers will argue their case. But the other side also has lawyers and will argue theirs. And Mann may prefer his lawyers to the opponent’s.

        It is however quite a jump to say the other side has no case at all. If that were truly the case, I’d expect a rule 11 motion. But I won’t hold my breath for that.

        There is a sadly growing school of thought among certain political advocates, I find it especially noticeable in the green wing, but it’s present elsewhere too, which Mann’s comment seems typical of. According to this school of thought, when encountering a person with a different view, the correct response isn’t just to argue and ultimately persuade or disagree, but to portray any disagreement as dishonesty, lying, baseless, etc., or worse.

  2. Posted Mar 20, 2012 at 7:32 PM | Permalink

    I found the following quote from Mann to be somewhat ironic:

    “You need to be able to bounce ideas off each other,” Mann said, “that aren’t always ready for prime time,” explaining why he was fighting to keep his correspondence secret.

    Perhaps if he had taken such a ‘not ready for prime time’ approach towards his beloved hockey-stick, the history of climate science would be quite different. Instead, he chose to exercise what I call “Climatic licence” … and that has made all the difference!

    • kramer
      Posted Mar 20, 2012 at 11:47 PM | Permalink

      My translation of that quote by Mann: If his emails get released, any damning evidence in them is nothing more than ideas that we were just winging around and some of which had no merit…nothing here, move along.

      • Posted Mar 21, 2012 at 4:37 AM | Permalink

        Yes it is odd preemptive denial, almost like he knows there something dubious in there.

        • HaroldW
          Posted Mar 21, 2012 at 9:31 AM | Permalink

          Mann has stated that “indiscriminate release of these materials will cause damage to reputations.” Nothing more specific to my knowledge.

        • Duster
          Posted Mar 26, 2012 at 12:01 PM | Permalink

          In fact, that statement regarding “reputations” is very revealing. It is also a good example of why lawyers really try to muzzle their clients. I suspect that his legal eagles are gritting their teeth each time he opens his mouth.

      • Posted Mar 21, 2012 at 7:18 PM | Permalink

        Yes !!

        “Please delete any and all emails” doesn’t really mean “delete any and all emails “!!!

  3. RayG
    Posted Mar 20, 2012 at 8:03 PM | Permalink

    Michael Mann reminds me of Professor Irwin Corey only Corey has better hair.

    http://en.wikipedia.org/wiki/Professor_Irwin_Corey

    • ChE
      Posted Mar 22, 2012 at 11:53 AM | Permalink

      He reminds me of Dr. Bunsen Honeydew, but with attitude.

  4. MJW
    Posted Mar 20, 2012 at 8:08 PM | Permalink

    It seems to me that the UVA’s explanation that they can selectivity release the e-mails to Mann, because he’s a “teammate,” undermines their case. The very reason FOI laws generally do not allow selective disclosure is to prevent the government from releasing information to their friends while withholding it from their opponents.

  5. Geoff Sherrington
    Posted Mar 20, 2012 at 8:12 PM | Permalink

    Are there not more groups like ATI than can start similar cases with other times, other places, other people, to add support to the long-expressed dissatisfaction with the release of climatic data?

    A single case of prosecuting a vehicle owner for allowing a monkey to drive while the owner ate a banana presents a few novel aspects and has the capacity to slow legal proceedings. However, A dozen such cases being run at much the same time makes the procedures of prosecution more mundane.

    There’s not a shortage of people still holding out on releasing data; but it’s a test of libertarian principles rather than of the person.

    • ChE
      Posted Mar 22, 2012 at 11:55 AM | Permalink

      I’m not purporting to be a legal expert like Mann, but in all likelihood, if somebody else sues on essentially the same grounds, the court would probably require them to join the ATI in their suit.

  6. Mark T
    Posted Mar 20, 2012 at 9:09 PM | Permalink

    You’d think these guys would have better lawyers than they do. Granted, they’ve been doing the stall thing well, but this is a no-brainer.

    Mark

  7. Dave L.
    Posted Mar 20, 2012 at 9:35 PM | Permalink

    Mann’s argument is: “There is no waiver where the parties have a common interest in the documents, including a shared copyright interest and a shared proprietary interest in protecting your scholarly works under the scholarly works exemption to FOIA statute.” ATI has previously argued that Mann no longer is employed by UVA; he works for a competitor, Penn State. Both universities compete for government climate grants, so this so-called “proprietary information” was given by UVA to a competitor. Doesn’t sound like “proprietary information” does it?

    • theduke
      Posted Mar 20, 2012 at 10:32 PM | Permalink

      Yes, seems to me the public, which funds the state’s university, also has a “proprietary interest,” although that may be stretching the definition.

    • Posted Mar 21, 2012 at 4:47 AM | Permalink

      Did Mann sign over the copyright interest to his employer, as is normal in the US: making the emails a work-for-hire, i.e. fully owned by the employer? In fact, work-for-hire is assumed in the US for employees unless there is a written agreement to the contrary. So I don’t see it as obvious that he has any copyright interest.

      Quite aside from that, if the archive contains incoming emails, or parts thereof, not authored at UVa or by Mann, then neither of them having a copyright interest in these third party emails.

      • DocMartyn
        Posted Mar 22, 2012 at 9:41 PM | Permalink

        “Did Mann sign over the copyright interest to his employer”

        Probably not. However, when ever you write a paper you typically have to sign over the copyright for the material to the publisher.
        Same when you archive data in repository, such as electron densities of crystal structures, it is theirs not yours.

  8. Posted Mar 21, 2012 at 12:03 AM | Permalink

    ATI appears to be the American Traditions Institute, which has been described as a free-market thinktank that has requested Mann-related documents from UVa under FOIA.

  9. Hank Henry
    Posted Mar 21, 2012 at 1:34 AM | Permalink

    “I’m a bit surprised that anyone professing to be familiar with the law”….

    Sounds like a flush of four to me.

  10. Posted Mar 21, 2012 at 3:38 AM | Permalink

    A Mann for all reasons
    But reason escapes him
    He’s far out of season
    And law practice scrapes him

    But Mike Mann deposed!
    The notion’s enticing
    The falsehoods exposed
    Are cake. Truth’s the icing

    ===|==============/ Keith DeHavelle

  11. Posted Mar 21, 2012 at 4:41 AM | Permalink

    Mann: “I’m a bit surprised that anyone professing to be familiar with the law would believe that [ATI’s] argument has any merit at all,” Mann said Tuesday in an e-mail. “I am not a lawyer, but I have legal experts advising me on this matter, and they say the matter is quite clear: There is no waiver where the parties have a common interest in the documents, including a shared copyright interest and a shared proprietary interest in protecting your scholarly works under the scholarly works exemption to FOIA statute. If the records were not my emails it would be a different story. Of course, the records are my emails. ATI’s argument is way off-base and, indeed, quite disingenuous.”

    Did Mann sign over the copyright interest to his employer, as is normal in the US: making the emails a work-for-hire, i.e. fully owned by the employer? In fact, work-for-hire is assumed in the US for employees unless there is a written agreement to the contrary. So I don’t see it as obvious that he has any copyright interest.

    Quite aside from that, if the archive contains incoming emails, or parts thereof, not authored at UVa or by Mann, then neither of them having a copyright interest in these third party emails.

    • HankH
      Posted Apr 8, 2012 at 1:18 AM | Permalink

      I just performed a search of copyrights with the Library of Congress. There are no copyrights filed wholly or shared under Mann’s name. It seems the copyright interest argument is a distraction.

      • RobWansbeck
        Posted Apr 10, 2012 at 7:51 PM | Permalink

        Copyright is an automatic ‘right’ under the Berne Convention; it does not require registration.
        The question is who holds the copyright. As copner notes above, the copyright is usually wholly owned by the employer.

        • HokieEngineer
          Posted May 3, 2012 at 7:42 PM | Permalink

          The governing body for state institutions of higher education in Virginia (SCHEV) allows the Boards of Vistors of the institutions to make intellectual property policies. I’m not entirely familiar with UVa’s, but I suspect it is similar to my own institution: copyrights are held by the authors, but patents must be assigned to the institution.

  12. Posted Mar 21, 2012 at 4:46 AM | Permalink

    U.Va.’s lawyers, Richard C. Kast and Madelyn F. Wessel, responded that Schnare’s argument was “preposterous,” saying there was “no evidence…that could possibly demonstrate that the University intended to waive its statutory right not to disclose.” They noted that Mann was the author of the e-mails and not an adverse party — essentially, sharing information with a teammate as opposed to the other side.

    Whether it “intended to waive” is different from whether it did “waive”.

    In court & law it happens all the time that things are waived, sort of by accident or oversight, or because of a bad choice of strategy.

    For example, an objection not made at the time, is normally an objection waived which can not be used in appeal. Or a disclosing a document to the public normally waives its confidential or privileged status, even if you didn’t mean to.

    In this case UVa chose a strategy which involved sharing material with Mann. Nobody forced them to chose that strategy. The strategy worked for its immediate purpose, which was winning the particular court case. It would be bizarre and unfair, if they can now say “we didn’t really mean that strategy, because we don’t like its unintended side-effects”

    • Mark T
      Posted Mar 21, 2012 at 7:41 AM | Permalink

      Indeed, hence my comment above. A decent lawyer would have predicted that outcome, and should have. What a bunch of maroons. This is why their argument sounds like so much fluff we’ve come to expect from the team: they blew it, know it, and are attempting to marginalize the effect.

      Mark

      • theduke
        Posted Mar 21, 2012 at 10:44 AM | Permalink

        You’d think that UVa, whose law school is ranked seventh in the US behind only the very best like Yale, Harvard and Stanford, would be able to find lawyers who could have formulated a winning strategy.

        Regardless, if they lose they still have the right to appeal to the Va Supreme Court, which is seemingly deferential to the University if the Cucinelli case is any indication.

        • Mark T
          Posted Mar 21, 2012 at 6:08 PM | Permalink

          From what I gathered, the VA Supreme Court ruling was actually an own goal given what UVA conceded in its otherwise legitimate argument. One would be hard pressed to argue the court was not aware.

          Mark

    • stan
      Posted Mar 21, 2012 at 10:48 AM | Permalink

      The attorneys are scrambling to cover their tails. They’ve had one of those “oops” moments.

  13. Salamano
    Posted Mar 21, 2012 at 6:10 AM | Permalink

    Shifting things to the realm of “intent” has been a workable strategy in many cases, chief among them being perjury cases. Particularly in cases that dabble into politics, dare I say almost every defendant gets off because the prosecutor can’t “prove” someone ‘intended’ to lie under oath if for no other reason than the defendant simply declared they didn’t. Also, folks in the USA know all too well about how many legal dollars can be spent defining “voter intent”.

    “Intent” is a big thing in American court system-speak, where not only do you have to break a law, you have to leave evidence that you ‘intended’ to break the law as well in order to be in trouble. I suspect this line of argumentation will eventually work– even if it does so with a favorable judge on one hand and an unwilling/disinterested higher court on the other.

    • Posted Mar 21, 2012 at 7:48 PM | Permalink

      Actually, the trend in US federal law has been away from the “mens rea” requirement for guilt. Many commentators have decried this trend, especially as it applies to regulatory laws with extremely complex implications that are almost impossible even for a trained professional to parse.

  14. Jeff Norman
    Posted Mar 21, 2012 at 8:58 AM | Permalink

    “This case isn’t about FOIA. It’s a partisan witch hunt.”

    This brought to mind the witch hunt in the Holy Grail, the one that ends up as a fair cop.

  15. qbeamus
    Posted Mar 21, 2012 at 8:58 AM | Permalink

    There is nothing inherently inconsistant about Mann intervening in the case to protect his interests, on the one hand, and claiming the joint defense privilege, on the other. Federal Rule of Civil Procedure 24(a) permits a person to intervene, as a right, in a suit if they:

    “claim an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest.”

    The joint defense privilege, on the other hand, pretty much only requires that they be defending against the same claim. While courts aren’t solicitous of privileges that have, in fact, been breached, they do not encourage attacks on privilege that arise out of the conduct of the litigation. That would encourage all manner of gamesmanship. As for the 1983 precedent, I don’t know what it is, but I’m guessing that if they had to go back to 1983 it’s not particularly strong.

    That doesn’t mean that the plaintiffs won’t get to see the docs. That’s a separate question, that the merits of the suit will decide. I’m just saying that showing them to Mann isn’t going to lose the case for them.

    • Posted Mar 21, 2012 at 11:49 AM | Permalink

      But Mann was not arguing a joint defense in his intervention in the previous litigation.

      He was an adverse party to UVa. He might be a friendly face as far as UVa is concerned, but in his intervention he was apparently arguing against them on a number of points.

      IANAL, and I don’t know that Mann won’t prevail, but…

      • qbeamus
        Posted Mar 22, 2012 at 2:50 PM | Permalink

        I’ve read the case more closely, and I see that the allegation is not the joint defense privilege, but, rather, an exemption to FOIA.

        Which means that the issue turns on the question of whether Mann, in fact, already had access to the data. If so, then having the lawyers give him a copy obviously doesn’t implicate the selective disclosure problem. In that case, giving him copies was just a convenience. I predict Mann will win this motion.

        That’s assuming that these emails were “proprietary.” I see reason to doubt that. Alleging that everything we do is proprietary because we have copyrights on it isn’t going to be very persuasive. So still come down in the same place. The plaintiff may get to see the docs–the merits of the case will decide. Showing them to Mann isn’t going to be the deciding issue.

  16. Stacey
    Posted Mar 21, 2012 at 1:53 PM | Permalink

    I think an important point is when was Mann given the emails before or after he left their employment?

    If after, he is just a member of the public, if before, he is just an employee and his works still belongs to his employer?

    I’m not sure about the second part.

    • Mark T
      Posted Mar 21, 2012 at 6:22 PM | Permalink

      I believe it was after the ATI suit was filed… implying after he was no longer an emploee.

      Mark

  17. Andrew
    Posted Mar 21, 2012 at 11:10 PM | Permalink

    The “Top Comment” on the Washington Post article is from Michael Halpern,
    Union of Concerned Scientists http://blog.ucsusa.org/author/michael-halpern

    His rather lengthy post lists various points he feels the public should be aware of…his fourth point:

    4. The American Tradition Institute and other like-minded organizations have exploited the theft of scientists’ emails in the past by misrepresenting their content.

    Theft huh? Did the Union ever make a public comment about Gleick? Was Gleick a Concerned Scientist?

    You got to love the Union…

    I was considering registering at the Post so that I offer my 2 cents, however when I took the time to craft a few witty comments for the New York Times on their puff piece about the Karma (post flame out) I was ‘screened’…so I shall preach to the choir…grrr

    • Hum
      Posted Mar 22, 2012 at 10:35 AM | Permalink

      Wonder if he is any relation to Josh Halpern (Eli Rabbett)

  18. j ferguson
    Posted Mar 22, 2012 at 5:57 AM | Permalink

    Andrew,
    Do register – the Post does not screen.

  19. j ferguson
    Posted Mar 22, 2012 at 6:08 AM | Permalink

    Preaching to the quire?

  20. Nathan
    Posted Mar 22, 2012 at 7:05 AM | Permalink

    The article is pretty clear about the disagreement and Mann summarises why he thinks ATI is wrong:

    ““I am not a lawyer, but I have legal experts advising me on this matter, and they say the matter is quite clear: There is no waiver where the parties have a common interest in the documents, including a shared copyright interest and a shared proprietary interest in protecting your scholarly works under the scholarly works exemption to FOIA statute. If the records were not my emails it would be a different story. Of course, the records are my emails. ATI’s argument is way off-base and, indeed, quite disingenuous.””

    Why didn’t this get into the original post?

    • Jeff Norman
      Posted Mar 22, 2012 at 7:52 AM | Permalink

      Steve’s original post did not contain any extensive quotes. However, it did quote M.Mann stating his disagreement with ATI’s position. This was in fact the longest quote in the original post. Steve also provided a link where anyone could go and read the words you quoted, so it is not clear to me why you are complaining Nathan.

    • Steve McIntyre
      Posted Mar 22, 2012 at 8:32 AM | Permalink

      Re: Nathan (Mar 22 07:05),

      Nathan, you accuse me of not expounding Mann’s legal theory. However, in this post, I did not attempt to assess the legal arguments of either party. ATI also have a legal theory. I didn’t review their theory in this post.

      As you observe, Mann’s lawyers have presented an argument as to why there was no waiver. However, ATI has presented a lengthy argument to the contrary. In order to form an opinion on the relative of merits of the two arguments, an interested observer would have to familiarize themselves with the briefs of both parties and the applicable law. I haven’t had the time or inclination to do so. (Plus I’ve been sick this week.)

      However, I am virtually certain that you haven’t reviewed the briefs of the respective parties or applicable case law (both of which I’ve browsed.)

      The FOIA experts interviewed by the Washington Post obviously did not reject ATI’s argument out of hand. To the contrary, they seemed to think that the UVA had a bit of an uphill fight. While ATI may end up losing this motion, that doesn’t support Mann’s allegation that their “argument has [no] merit at all”.

      Mann’s all-too-typical wild extrapolation from his lawyers having an argument to his opponents’ case having no merit was worth highlighting (and was not selective quotation):

      I’m a bit surprised that anyone professing to be familiar with the law would believe that [ATI’s] argument has any merit at all,”

      • Posted Mar 22, 2012 at 10:25 AM | Permalink

        Get well soon – or any time prior to that.

      • targs
        Posted Mar 23, 2012 at 7:50 AM | Permalink

        Indeed, Mann seems rather fond of that phrasing. Who can forget his reply to M&M’s comment on his flawed PNAS paper? (“In summary, their criticisms have no merit.”) And this was in response to M&M pointing out his basic error of using a time series upside down! Mann’s use of the same wording here bodes poorly for the strength of his legal position.

      • Don McIlvin
        Posted Apr 7, 2012 at 1:20 PM | Permalink

        You mentioned being sick. It has been 16 days of “quiet” on the blog. That is the longest period in over a year.

        I hope all is well. If not GBWY!

    • Duster
      Posted Mar 26, 2012 at 12:08 PM | Permalink

      If Mann’s legal opinions are as trustworthy as his models, he is in serious trouble.

  21. Dave L.
    Posted Mar 22, 2012 at 11:37 AM | Permalink

    In the background, let us not forget that UVA had no quams about releasing Pat Michaels’ e-mails to a Greenpeace FOIA request after Michaels departed UVA. Surely ATI will submit this fact in its argument.

    • Matt Skaggs
      Posted Mar 22, 2012 at 3:03 PM | Permalink

      Dave L.,
      Did not know that, do you have any details or links?

      • Dave L.
        Posted Mar 22, 2012 at 3:58 PM | Permalink

        Matt,

        My error. I read that they “reportedly” released Michaels’ e-mails, but when I checked at SPPI, I found out that UVA had agreed to release Michaels’ e-mails, but for a fee — Greenpeace then placed it’s request “on hold”.

        http://sppiblog.org/news/uva-fights-requests-for-michael-manns-emails

        • HaroldW
          Posted Mar 22, 2012 at 10:52 PM | Permalink

          Odd…in following that link, I came across
          this article which seems to indicate that UVa is willing to release the documents, but for a sum of $8K. So it would seem that at least in some contexts, UVa doesn’t have a principled opposition to releasing the material. Or perhaps these aren’t the same documents, does anyone know?

  22. JCM
    Posted Mar 22, 2012 at 1:23 PM | Permalink

    An intelligent client leaves all comment to his legal counsel.

    • Jim Bennett
      Posted Mar 22, 2012 at 1:41 PM | Permalink

      Re: JCM (Mar 22 13:23), Unless he’s an arrogant know-it-all who loves to hear himself talk and/or read his own quotes…

  23. Richard Lyman
    Posted Mar 22, 2012 at 7:55 PM | Permalink

    Without taking any sides in this issue, I was just wondering who is paying all of Dr. Mann’s legal bills. I doubt that the suit against Tim Ball is on contingency, nor this intervention either. It seems to me that for a university professor he has an awful lot of discretionary income.

  24. Geoff Sherrington
    Posted Mar 22, 2012 at 9:37 PM | Permalink

    Discretionary income …. How simpler it would have been if temperature recording stations had had two or 3 thermometers, greatly reducing the errors found in one alone. (Like many aircraft have several Intertial Navigation and/or GPS systems).

    Would it not have been better to spend money not on legal proceedings, but on instrument improvements? Or other elementary prudently precautionary science?

  25. Nick Stokes
    Posted Mar 23, 2012 at 5:12 AM | Permalink

    No, both statements are wrong. The Act in Virginia allows the responding institution to recover costs from the applicant. The $8000, and the similar process for Greenpeace, was an upfront fee to gather the documents and examine them to see if exemptions (in the UVa view) applied. ATI has already paid that, I presume; they certainly haggled over it. Once the documents are gathered and facts are established, the argument over exemptions begins. That’s what is happening now with ATI.

    The upfront cost implies no guarantee that UVa won’t oppose release of the documents. That’s what scared Greenpeace off.

    • HaroldW
      Posted Mar 23, 2012 at 2:25 PM | Permalink

      Thanks for the clarification, Nick.

    • theduke
      Posted Mar 23, 2012 at 9:41 PM | Permalink

      Nick: Did they impose the same financial burden on former employee Mann when they released the documents to him? If not, why not?

      • Nick Stokes
        Posted Mar 24, 2012 at 12:26 AM | Permalink

        Well, they are emails that he wrote. In any case, as UVa sharply reminded Horner when he asked that Mann share the cost, it is ATI that is pressing the case, not Mann.

        • Salamano
          Posted Mar 24, 2012 at 4:07 AM | Permalink

          Isn’t it not just email that Mann wrote, but also emails that were sent to him and his inbox as a direct result of his position at the University? It’s not like 100% of the emails are just what he wrote and saved in his ‘sent box’ chain-free.

          (There’s got to be some component here that is University fostered…It’s not like he was a transcendent being and an established ‘get’ by the college when they first hired him on as an associate professor. He had to have grown into the position he merited at the IPCC or eventually at PSU by virtue of the material and immaterial benefits and property provided by the University)

          Just about every employer on the planet has stipulations on email coming into a company email account as being company property first.

        • Manniac
          Posted Mar 24, 2012 at 8:13 AM | Permalink

          Nick,

          Mann may have written them but who owned them?

        • theduke
          Posted Mar 24, 2012 at 11:55 AM | Permalink

          I’ve perhaps over stated the case in my first paragraph above. Here’s the relevant section of law: Excluded from FOIA requests are:

          4. Data, records or information of a proprietary nature produced or collected by or for faculty or staff of public institutions of higher education, other than the institutions’ financial or administrative records, in the conduct of or as a result of study or research on medical, scientific, technical or scholarly issues, whether sponsored by the institution alone or in conjunction with a governmental body or a private concern, where such data, records or information has not been publicly released, published, copyrighted or patented.

          Mann and the University have a duty to uphold this exclusion. I see the efficacy of the argument that Mann is working in tandem with UVa in upholding the meaning of this section and a judge might find that compelling. Or not.

          Regardless, the last two paragraphs above still stand. People wouldn’t be interested in the emails if the science was laid bare.

        • Corey S.
          Posted Mar 24, 2012 at 12:44 PM | Permalink

          theduke,

          You only have to focus on the last bit

          where such data, records or information has not been publicly released, published, copyrighted or patented.

          The emails in question, and the information within them, as far as I know, have all been published on in the literature. So this exemption does not hold water, unless they haven’t been published. Or am I reading that bit wrong?

        • theduke
          Posted Mar 24, 2012 at 1:58 PM | Permalink

          My first post referred to above was not posted, it was in moderation when I commented on it and it has disappeared.

          CoreyS, below. I think you might be reading that a bit wrong. But I’m as clueless as anyone else. The emails themselves may contain some information previously published, but it may be that most of the information or discussion in them has not been.

          As for them being previously and publicly released, I’m guessing that the judge is going to rule against the argument that giving Mann the dossier waives the exclusion.

        • Corey S.
          Posted Mar 24, 2012 at 12:42 PM | Permalink

          Manniac,

          It appears that U.Va. owns the emails, or the Commenwealth. According to the University, they are the public record, too.

          “U.Va. Copyright/Disclaimer Statement
          All text, images, logos and information contained on official University of Virginia Web sites are the intellectual property of U.Va.”

          http://www.virginia.edu/copyright.html#2

          “II. Who Owns What?

          We often use the possessive word “your” but this does not always mean “ownership.” In some cases, it means “exclusive use.” We also assign ownership of computers or files or data to the University when in reality some of these items may be officially the property of the Commonwealth of Virginia, a research sponsor, or some other entity.”

          http://its.virginia.edu/pubs/docs/RespComp/resp-comp-facstf.html

          “Email Guidelines

          Most University employees would agree that email has changed the way in which we communicate and conduct business. As a business tool, email is used to rapidly exchange information, collaborate on projects, and make announcements. Many campus units utilize email to transmit reports, meeting minutes, drafts of policies, official memorandums, and other information without realizing that their email correspondence is a public record, according to the Virginia Public Records Act.”

          http://www.virginia.edu/recordsmanagement/email.html

        • Steven Mosher
          Posted Mar 25, 2012 at 11:22 AM | Permalink

          Well they would also be emails that others wrote to him. Not necessarily only emails that mann wrote. You forget that one of the arguments is that student information /records might be in the mails. Now, the university may have released student info to Mann. That gives me an idea

  26. Posted Mar 25, 2012 at 6:43 AM | Permalink

    Hope this is not too far off-topic, but Mann has now given his opinion on the Gleick case, and I think it’s an interesting insight into his views on both Gleick & on climategate.

    Miller: Gleick says he succumbed to frustration over the corporate disinformation campaign to undermine climate science. What’s your reaction to that, and to Heartland’s campaign to bring down Gleick and the Pacific Institute since?

    Mann: Peter is the first to admit he showed poor judgement here. And as someone who has had [my] own emails stolen and words twisted and misrepresent, I feel for the Heartland Institute folks—to a point. But I think we have to recognize that there isn’t quite a moral equivalency to what Gleick did and what the criminals who hacked the CRU emails did.

    In the latter case, there was no impropriety revealed, just a cynical attempt to misrepresent and smear honest scientists, and it was used as part of a coordinated effort by vested interests to derail any progress in Copenhagen toward reaching a meaningful agreement to reduce global carbon emissions. In the former case, with Heartland, what was revealed…simply amplified what we had already known, that Heartland was part of an industry-funded effort to mislead the public about climate change. What was particularly revolting was the campaign afoot, revealed by the stolen documents — that is, the numerous documents whose authenticity Heartland has not denied — to mislead our children by inserting anti-scientific climate change denial propaganda into K-12 classrooms around the country. This is especially pernicious given that it is our children — and grandchildren — who will see the most damaging impacts of climate change if we do not choose to act now.

  27. kramer
    Posted Mar 28, 2012 at 7:58 PM | Permalink

    So Mann has his 12,000 emails now. That gives him lots of time to go through them and find the ones with the ideas that weren’t ‘ready for prime time’ and come up with answers to all of them in advance.

    How convenient.

    • John another
      Posted Mar 28, 2012 at 9:35 PM | Permalink

      Hence the sabbatical? There are obviously some things here that are worth a great deal of money to keep out of the Inconvenient Light. The Socialist Gravy Train is clearly deeply vested here and it looks like there may be something they cannot spin. Why else go to all of this effort when you have a lap dog media that prints any and all press releases without question?
      Woodward and Bernstein had the advantage of working for an emotionally and ideologically sympathetic megaphone. Rationalist don’t have that luxury.

    • Bill
      Posted Mar 29, 2012 at 1:30 PM | Permalink

      Re: kramer (Mar 28 19:58), I’ve always figured the damaging stuff were derogatory comments he may have made about colleagues, especially those that are now in a position of influence. He/They can spin any of the bad science in the emails, but he would have a very hard time explaining to his associates if he disparages their work. He seems to have an outsized ego, in my experience folks like that tend to diminish everyone else, even if their work has no impact on his own. He is basically more concerned about concealing what a jerk he is than how poor a scientist. Just my opinion of course.

  28. gallopingcamel
    Posted Apr 5, 2012 at 1:55 AM | Permalink

    Steve,
    I read your stuff but don’t comment much as most of it is way beyond my pay grade. Nevertheless, I love what you do.

    Scott Mandia is not as dumb as Anthony Watts portrays him but I could not help myself when that “Super Mandia” image was published. Mandia is even crazier than I am!

    Poet laureate I am not:

    http://profmandia.wordpress.com/2012/04/04/support-climate-scientists-look-cool-doing-so/#comment-2986

  29. gallopingcamel
    Posted Apr 5, 2012 at 9:08 AM | Permalink

    Predictably, Scott Mandia removed my little song from his website. Sing this to the tune of “Good King Wenceslas”:

    Michael Mann looked out
    On the feast of Stephen
    But doubt lay round about
    Deep and harsh unbeaten
    Dimly shone his light that night
    Thanks to MacIntyre
    When Briffa came in sight
    He could not douse the pyre

    • kim
      Posted Apr 5, 2012 at 1:14 PM | Permalink

      High water mark,
      Flood is out from the plain
      Unvarnished truth and Mann;
      Ever the twain
      ================

  30. seanbrady
    Posted Apr 10, 2012 at 1:44 PM | Permalink

    Help! It’s been 20 days without a new Climate Audit post.

    • kim
      Posted Apr 10, 2012 at 4:59 PM | Permalink

      I hear the whimpering through the frosty air, and feel the trembling through the ice.
      =========

  31. Tom Anderson
    Posted Apr 10, 2012 at 9:39 PM | Permalink

    Steve, I haven’t seen or heard from you for a few weeks and I am worried. I come here everyday and I know it is unusual that you haven’t posted recently, so I pray an hope you are well. Let us know what’s up if you can.

    God Bless,
    TA

  32. Beth Cooper
    Posted Apr 10, 2012 at 10:52 PM | Permalink

    Who presented Mann with the Pharaohs gold sceptre?

  33. John G. Bell
    Posted Apr 12, 2012 at 7:40 PM | Permalink

    Steve, I expect you are working harder than ever. I wish you success. I’m glad you know the key to it. Please do remember to take it easy some time when you get a chance.

  34. chuckr
    Posted Apr 15, 2012 at 10:37 PM | Permalink

    Could someone please tell us that Steve is alright. Roman, Anthony? As Tom said there are many lurkers out here that are concerned. Maybe I missed it. And maybe I’m out of line. If so I apologize.

    • MrPete
      Posted Apr 15, 2012 at 11:06 PM | Permalink

      Re: chuckr (Apr 15 22:37),
      I’ve been away but will follow my various channels to check up on him. Last I heard he had been sick but he may just be busy. It does happen…

    • RomanM
      Posted Apr 16, 2012 at 5:50 AM | Permalink

      I don’t have personal knowledge of this, but Anthony posted a comment on WUWT several days ago that, according to Mrs. McI, Steve has been working on a project which has kept him busy. I got the sense that health did not seem to be the issue.

      • seanbrady
        Posted Apr 16, 2012 at 4:30 PM | Permalink

        Great.

      • CG
        Posted Apr 17, 2012 at 3:07 PM | Permalink

        Good, I was actually getting worried too… I hope steve comes back and can tell us about what his project was (I assume it was mining related rather than climate related, but it would be interesting to hear about nonetheless!).

    • MrPete
      Posted Apr 16, 2012 at 11:21 AM | Permalink

      Re: chuckr (Apr 15 22:37),
      Steve and I connected this morning. He’s fine, just busy with other things.

      He too has a Real Life. There really is no Evil Corporation that funds his climate activities… just his own work. :-)

      • chuckr
        Posted Apr 16, 2012 at 6:53 PM | Permalink

        Thanks

  35. mpaul
    Posted Apr 16, 2012 at 10:41 PM | Permalink

    Looks like the judge punted today (April 16th). He seems a bit out of his depth related to FOIA cases. But he is progressing conservatively and seems to be wanting to settle the case in a way that makes it hard to appeal.

  36. RayG
    Posted Apr 16, 2012 at 10:50 PM | Permalink

    This is OT but Judith Curry has a post up on assessing Climate model software quality. The post itself is very good and the comments include many from commenters with deep knowledge of model verification, validation and Q&A.

    http://judithcurry.com/2012/04/15/assessing-climate-model-software-quality/#more-8023

  37. Orcafriend
    Posted Apr 17, 2012 at 11:34 AM | Permalink

    Steve, I haven’t read anything about an extended vacation or work assignment. I hope any pray all is well.

    • chuckr
      Posted Apr 17, 2012 at 2:30 PM | Permalink

      Read up this thread a bit…. MrPete

  38. timothy sorenson
    Posted Apr 20, 2012 at 11:11 AM | Permalink

    Where is Steve?

    • Posted Apr 20, 2012 at 11:56 AM | Permalink

      I had dinner with Steve last night. He was in a suit and tie. I hardly recognized him. Steve has been working very hard helping some colleagues on a small mining company startup, and that plus a bout of minor illness has kept him away from blogging for a while.

      • Jeff Norman
        Posted Apr 20, 2012 at 7:59 PM | Permalink

        Thanks Ross.

  39. Mike Roddy
    Posted Apr 21, 2012 at 10:22 AM | Permalink

    Mann is correct. The “American Tradition Institute” is not a legitimate source of scientific inquiry, which this is supposed to be about.

    Instead, ATI is yet another right wing organization seeking to ferret through 12,000 emails in order to mine a statement that can be used to attack a scientist whose conclusions they do not agree with. Many of the emails were personal in nature, and written under an assumption of confidentiality.

    The courts may indeed rule that since they were released to one party that they are no longer confidential, but that’s beside the point in the bigger picture. This is nothing but scurrilous harassment to protect the profits of the fossil fuel industry.

    • Tom C
      Posted Apr 21, 2012 at 11:48 AM | Permalink

      Mike Roddy –

      Use of the word scurrilous and accusation against the fossil fuel industry. Nice! Original too!

    • MrPete
      Posted Apr 21, 2012 at 10:23 PM | Permalink

      Re: Mike Roddy (Apr 21 10:22),
      So Mike, are you suggesting that freedom of information requests should be evaluated based on the purpose of the request? Where did you find something supporting this novel interpretation of FOIA law?

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