In 2011, the American Tradition Institute served a FOI request on the University of Virginia regarding Professor Mann’s climate research. This request mirrored the subpoena previously served on the University by Attorney General Cuccinelli. (We previously reported on the conclusion of the Cuccinelli v. UVA case which was decided by the Virginia Supreme Court.) The University supplied some records, but took the position that the majority of the records were not subject to public disclosures. Thereafter, ATI petitioned to compel the production of these documents. Professor Michael Mann sought to intervene, arguing that the emails in question were his and therefore he should have standing in any litigation relevant to any document release. AAUP submitted a letter to the 31st Judicial Circuit Court of Virginia in support of Mann’s intervention, and the court granted him standing.
AAUP and the Union of Concerned Scientists subsequently filed a joint amicus brief on July 24, 2012, in support of UVA and Professor Mann and urged that “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.” The brief also argued that enforcement of broad FOIA requests that seek correspondence with other academics, as ATI sought here, “will invariably chill intellectual debate among researchers and scientists.” Also, exposing researchers’ “initial thoughts, suspicions, and hypotheses” to public scrutiny would “inhibit researchers from speaking freely with colleagues, with no discernible countervailing benefit.” The brief further argued that allowing FOIA requests “to burden a university with broad-ranging document demands based on questions concerning the scientific validity of a researcher’s work or on the potential that something might turn up would have the strong potential to ‘direct the content of university discourse toward or away from particular subjects or points of view,’ and will have a significant chilling effect on scientific and academic research and debate.”
On April 2, 2013 the Virginia Circuit Court issued a written Order ruling that faculty email correspondence related to academic research constitutes a public record under Virginia’s Freedom of Information Act (FOIA) when the faculty members are government employees on government property using government facilities for government purposes. The court held however, that all of the records sought by petitioners qualified for exclusion under the Virginia FOIA exemption for “data, records or information of a proprietary nature produced or collected by or for faculty of staff of public institutions of higher education….. in the conduct of or as a result of study or research on medical, scientific or scholarly issues, whether sponsored by the institution alone or in conjunction with a governmental body, where such data, records or information has not been publicly released, copyrighted or patented” or under the exemption for personnel records. The court also ruled that purely personal email messages are not public records under the Virginia FOIA. Although the court did not rely on the academic freedom and First Amendment issues argued by the parties, it noted that the research exception in the Virginia FOIA does arise from the concept of academic freedom and from the interest in protecting research. Petitioners have requested discretionary review by the Virginia Supreme Court.