Energy & Environment Legal Institute v. Arizona Board of Regents, Case No. 2CACV-2017-0002 (Ariz. App. Ct., Second App. Div., Sept 14, 2017) (unpublished)

In this decision the Arizona Court of Appeals rejected attempts by a “free market” legal foundation to use public records requests to compel faculty members to release emails related to their climate research. In an amicus brief in support of the scientists, the AAUP had argued that Arizona statute creates an exemption to public release of records for academic research records, and that a general statutory exemption protecting records when in the best interests of the state, in particular the state’s interest in academic freedom, should have been considered. The appeals court agreed and reversed the decision of the trial court that required release of the records and returned the case to the trial court so that it could address these issues.

This case has a long and tortured history, with two lower court decisions, two appeals court decisions, and three AAUP amicus briefs. It started with a lawsuit filed by Energy & Environment Legal Institute, a “free market” legal foundation using public records requests in a campaign against climate science. Previously, E & E (then American Tradition Institute) sought similar records of University of Virginia faculty members Michael Mann and others, which the Virginia Supreme Court, with AAUP filing an amicus brief supporting the scientists, rebuffed. Here, E & E’s public records requests targeted two University of Arizona faculty members, climate researchers Professors Malcolm Hughes and Jonathan Overpeck. E & E counsel has stated that the suit was intended to “put false science on trial” and E & E vowed to “keep peppering universities around the country with similar requests under state open records laws.”

The case has moved between the trial court and the Appeals Court of Arizona several times. In this appeal, the trial court had initially ruled that the records should be disclosed. As the Appeals Court decision explained,

the trial court determined the e-mails sought by Energy & Environment Legal Institute (E&E) that had been characterized as “prepublication  critical analysis, unpublished data, analysis, research, results, drafts, and commentary,” were subject to release under A.R.S. § 39-121, concluding that Arizona Board of Regents (Board) had “not met its burden justifying  its decision to  withhold the subject emails.” 

The University appealed, and AAUP submitted an amicus brief that advanced two arguments. First, the trial court did not properly apply a section of the public records law which specifically protected the research records of the university faculty, and thus created a privilege for these records. Second, the trial court did not properly apply a general section of the public records law which required that the court consider the best interests of the state, and particularly the importance of academic freedom in research.  As the brief explained, “Courts should consider the best interests of the state to maintain a free and vital university system, which depends on the protection of academic freedom to engage in the free and open scientific debate necessary to create high quality academic research. Where the requests seek prepublication communications and other unpublished academic research materials, as in the case at bar, compelled disclosure would have a severe chilling effect on intellectual debate among researchers and scientists.”

The Appeals Court agreed with both of these arguments, and reversed the decision of the trial court. Importantly, the Appeals Court specifically found there was an academic privilege created by the statute:

. . . . the trial court’s decision concludes that “the creation of an academic privilege exception . . . is a proposition more properly made to the legislature rather than the courts.”  Section 15-1640, although it is not titled as an “academic privilege,” grants an exemption from Arizona public records law for certain “records of a university.” The trial court’s comment seems to demonstrate that the court did not consider the application of § 15-1640 and was not aware the legislature had already created an academic privilege.

The Appeals Court also found that, as argued by AAUP, the trial court had failed to address whether the best interests of the state warranted protecting these research records. Because the trial court had not properly applied the statutory protections available to the scientists, the Appeals Court reversed the trial court’s decision requiring release of the records, and remanded the case to the trial court for it to issue a decision fully addressing these protections.