Something's Still Rotten in the State of Virginia

August 31, 2011 | 12:20 pm
Michael Halpern
Former Contributor

Something is still rotten in the state of Virginia,* but the press is largely missing what stinks: a little-noticed court agreement that may make plenty of scientists uneasy about pursuing cutting-edge research in the Old Dominion State.

Virginia Welcomes You highway signFor more than a year, UCS has fought Virginia Attorney General Ken Cuccinelli’s crusade against the University of Virginia (UVA) and a former UVA climate change scientist whose research he finds objectionable. In April 2010, the attorney general subpoenaed the scientist’s emails and other private correspondence under a state law usually used to prosecute health care fraud.

UCS, individual scientists and academics, scientific organizations, and law professors objected to the subpoenas, and even climate skeptics called Ken Cuccinelli’s actions a witch hunt. The university fought back in court and won. The attorney general appealed the decision in December 2010; the Virginia Supreme Court is expected to consider the case this fall.

Enter the American Tradition Institute (ATI), which seems to want to make it a tradition to attack scientists through open records laws. One of the group’s spokespeople is Chris Horner, also of the Competitive Enterprise Institute, who in 2008 penned Red Hot Lies: How Global Warming Alarmists Use Threats, Fraud, and Deception to Keep You Misinformed.

In January 2011, ATI submitted a request under the Virginia Freedom of Information Act (FOIA) seeking the same broad range of records as the subpoenas: emails, handwritten notes, and any other communication associated with Mann’s tenure at UVA. After UCS and twelve other organizations asked UVA to “[balance] the interests in public disclosure against the public interest in academic freedom” when complying with the FOIA request, UVA President Teresa Sullivan stated that the university would claim “all available exemptions” in its response.

Sounds good, right?

Not so fast. ATI took UVA to court, asserting that UVA was dragging its feet in responding. In May, UVA entered into a court agreement that seems counter to the spirit of its pledge. The agreement gives ATI the right to review all documents—both those that will be eventually released and those that will be withheld—as long as they promise they won’t publicly release the contents.

In other words, ATI gets to see everything it requested, even if the material is exempt from ATI’s FOIA request. I would think that students and scientists who are the subject of the scientist’s emails would have grounds to object to that.

Now if I were to FOIA, say, all of Attorney General Cuccinelli’s emails, most or all of my request would likely be denied. But I wouldn’t expect to be able to go into a judge’s chambers and review every email the attorney general had sent. It’s important for there to be safe space for any government employees to be able to challenge the ideas of others.

So why does ATI get special treatment? On August 10, UCS and several other organizations wrote a letter to President Sullivan urging the university to attempt to alter the agreement.

So far, the university has been silent about why it entered into the agreement. But UVA is sending a message to its faculty and students that, under pressure, it will give people outside the university access to communications that may be sensitive and private.

*Virginia is technically one of four commonwealths in the United States, but “state” clearly works better here for rhetorical reasons.