Arizona Superior Court Protects Academic Freedom in Climate Email Disclosure Case

March 30, 2015
Michael Halpern
Former contributor

Arizona basketball fans may be glum after this weekend’s loss to Wisconsin, but there’s some very good news today out of Arizona: a superior court has found that the University of Arizona was right to protect more than 1700 emails to and from university climate scientists from disclosure under the state’s open records act.

In a relatively brief March 24 decision, the court said that the university had the discretion to protect “prepublication critical analysis, unpublished data, analysis, research, results, drafts, and commentary,” and properly withheld documents related to student information, ongoing research, and prepublication peer review.

The University of Arizona is one of a number of schools that has received broad open records requests for the private correspondence of scientists. A circuit court found that the university has the right to protect faculty communications.

A circuit court found that the University of Arizona has the right to protect faculty communications. Photo: ugardener via Flickr

The records request came from the fossil fuel-funded Energy and Environment Legal Institute, formerly known as the American Tradition Institute. It’s unclear as to whether E&E Legal will appeal the decision.

The most interesting part of the decision to me is the court’s recognition of how cumbersome compliance can be with requests for emails that contain highly technical information. In reviewing a representative sample of just 90+ of the 1700+ requested emails, the court called the volume and complexity of the emails “daunting.” It continued:

While reviewing 90 emails may seem like a relatively easy task, such was not the case here. The emails ranged from one or two pages to multiple pages to at least one exceeding 800 pages in length. Further, to describe the content of the emails as technical and esoteric is an understatement. Many hours were spent reviewing the emails and, by no stretch, was the Court able to fully comprehend the substance of the emails.

E&E Legal has filed open records requests in several other states. Last year, the Supreme Court of Virginia ruled against the organization, finding that excessive disclosure could cause  “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.”

The use of broad open records requests to intimidate academics is becoming more and more common. In February, I released a detailed analysis of how activists across the political spectrum use these requests to harass academics, distracting scientists from their research, costing universities many thousands of dollars, and creating a chilling effect on those who do research in contentious topic areas.

The same week the report was released, Science revealed that fourteen universities throughout the country recently received open records requests for the private correspondence of genetic engineering researchers.

So what are the solutions here? I’m thinking more and more that we need common standards of disclosure and creative mechanisms to ensure that both private and public universities embrace those common standards. What we don’t want are expensive and time-consuming lawsuits every time an ideologue gets a bee in his or her bonnet.

But for now, this is a win for scientific inquiry in Arizona, and scientists who work at the state’s public universities should breathe a little bit easier today. Excessive disclosure can have a significant chilling effect on researchers’ ability to communicate frankly with each other. We should all be in favor of protecting scientists who are courageous enough to advance knowledge on issues that are considered politically contentious.