UPDATE: Link to the full court transcript added below.

People send me stuff. The stuff today is a transcript of the recent court debate over the FOIA requests for Mike Mann’s UVa emails:

It seems that Dr. Mann’s lawyer and the UVa counsel are arguing strongly that Mike Mann’s emails are somehow “special”. But, the judge doesn’t seem too impressed, especially with his “purity of heart” remark, and he’s right, the law is blind to that.

It seems to me that there must be something quite damning in those emails, or they would not be fighting so hard to prevent their release. I mean seriously, the “hockey stick” is a world known bit of science, what could possibly be so “proprietary” that is warrants an exception for Mann where Wegman, Singer, Michaels and others at UVa have none?

Some excerpts below, followed by a PDF of the partial transcript with highlights.

MR. FONTAINE: Good morning, Your

10 Honor. My name is Peter Fontaine; I am here to

11 appear on behalf of Dr. Michael Mann, who is a

12 respondent aligned with the University of

13 Virginia in this matter, his former employer.

14 I would like to add some perspective

15 to the timeline and the arguments by my

16 co-counsel, Rick Kast here, to try to provide a

17 little more human aspect of this case and to

18 explain why the discovery propounded upon

19 Dr. Mann is completely improper and, indeed,

20 vexatious.

21 Briefly, Your Honor, both the timing

22 and the scope of the petitioners’ discovery in

1 this case, when you look back at the course of

2 this case, is quite clearly calculated, in our

3 view, to annoy and harass Dr. Mann; and really

4 to punish him for exercising his right to

5 petition this court to intervene as respondent

6 in the case, to protect the documents at issue

7 — which comprise his e-mail correspondence both

8 to and from, literally, tens, if not hundreds,

9 of scientists across the world over the six-year

10 period of his employment here at the university

11 where he was a professor who taught classes in

12 climate change and conducted groundbreaking

13 research on issues such as paleoclimatology.

14 THE COURT: Let me interrupt you a

15 second.

16 MR. FONTAINE: Yes, sir.

17 THE COURT: Modern American debate

18 seems to require us to accuse adversaries of

19 improper motives. We see that in the public

20 forum all the time.

21 What if, for general purposes, all of

22 those bad motives are true? How does it effect

1 the legal right to FOIA protection?

2 Are we — do we have a purity of heart

3 test before we apply FOIA’s legislative acts?

4 MR. FONTAINE: No, Your Honor, the law

5 on that is quite clear. It is not really the

6 Court’s function to try to weigh the motives.

7 THE COURT: Well, then, why are you

8 arguing that to me?

9 MR. FONTAINE: I am arguing that, Your

10 Honor, because it goes to the issue of

11 Dr. Mann’s intervention in this case where we

12 articulated, and submitted for the Court’s

13 review, an affidavit which outlined his

14 interests in being able —

15 THE COURT: I am distinguishing the

16 existence of an interest from the impact on your

17 client. And I hear it in various categories,

18 like — is he required under any court order in

19 this process to do anything by way of

20 production, or is it the university?

21 MR. FONTAINE: Your Honor, I was going

22 to get to that.

1 THE COURT: All right. I will stop

2 interrupting you and let you go then. Go ahead.

3 MR. FONTAINE: It is a good line of

4 inquiry because the discovery is propounded not

5 just upon the university, but on Dr. Mann

6 individually. He is a professor at Penn State

7 University. He lives in Pennsylvania.

8 His whole reason for being in this

9 case was because under the terms of the first

10 protective order, the e-mails from his entire

11 body of work here at the university were to be

12 disclosed to these two gentlemen, counsel for

13 the petitioners and, in fact, members of the

14 board of board of directors of ATI, for purposes

15 of a protective order review.

16 And it was Dr. Mann’s fervent belief

17 that the disclosure of those e-mails — even

18 under the terms of a protective order — which

19 would have allowed people, these two individuals

20 to review all of his e-mails, the people with

21 whom he corresponded and associated, the ideas

22 that he expressed, all of that information was

Page 32

1 an improper invasion of his rights.

========================================

20 MR. FONTAINE: Yes. And, Your Honor,

21 the Court was quite clear in stating that the

22 interpretation of the exemptions under FOIA is,

1 indeed, informed by the various state and

2 Federal constitutional protections that apply to

3 certain information that may be in possession of

4 the government, but nevertheless should not be

5 disclosed because it implicates those very

6 interests.

7 And that’s exactly the case we have

8 here. We have records that were the writings of

9 a professor, freely exchanged with other

10 scientists across the world, that are subject to

11 an exemption. And there is a balancing test

12 that this court —

13 THE COURT: An exemption listed in

14 FOIA.

15 MR. FONTAINE: Correct. I don’t have

16 it in front of me, but it basically says

17 writings and information of a scholarly nature,

18 that of a proprietary nature that are developed

19 by or for the professor are considered exempt,

20 and the university has wide discretion to decide

21 what that is. Unless it has been copyrighted,

22 formally copyrighted, or otherwise disseminated,

Page 70

1 it is subject to being withheld; which is the

2 case that we have here.

=========================================

17 THE COURT: Remember my remark about

18 purity of heart?

19 DR. SCHNARE: Yes, sir.

20 THE COURT: Philosophical or other

21 views on this don’t help me decide what FOIA

22 means under Virginia law.

Beginning on p. 79:

9 I would like to begin by setting these

10 issues into a context, Your Honor, so I am going

11 to tell you a story. It is a true story. I

12 think it is instructive, and we hope you will

13 find something useful in it.

14 It is a case where an author published

15 a professor’s e-mails obtained under the Freedom

16 of Information Act of Virginia. This is,

17 apparently, the horror that both the respondents

18 and the intervener want to prevent.

19 Professor Edward Wegman of George

20 Mason University was asked by the U.S. House of

21 Representatives to file a report on the

22 statistical validity of a 1998 paper published

Page 80

1 by certain authors, including lead author,

2 Michael Mann.

3 While he was preparing the report, a

4 person qualified to seek the records under the

5 Freedom of Information Act of Virginia sought

6 Professor Wegman’s e-mails. The professor

7 responded correctly, we believe, that “it is not

8 clear to me that before journal peer review

9 process is complete that we have an academic

10 obligation to disclose the details of our

11 methods before publication.”

12 Once the Wegman report was published,

13 GMU received a new FOIA requesting Professor

14 Wegman’s e-mails. GMU responded by providing

15 approximately 3,000 pages of responsive records

16 to “USA Today” within 14 days; in electronic

17 format without charge, litigation, or other

18 delaying tactics as is appropriate under the

19 statute.

20 In making their timely response, not

21 only did GMU not credit concerns about copyright

22 interests in the e-mails or any threat to

1 academic freedom, neither did anyone else.

2 We know this because we sent a Freedom

3 of Information Act request to GMU asking for any

4 records reflecting discussion of such concerns,

5 and they responded that they had received none

6 and they had none of their own.

7 Michael Mann did not rise in support

8 of Wegman’s copyright interests or his need for

9 academic freedom. Neither did the Union of

10 Concerned Scientists who was underwriting part

11 of Mr. Mann’s participation in this matter

12 today. Nor did the university, nor even a

13 single member of their faculty. Nor did the

14 American Association of University Professors,

15 who had already filed a letter to this court on

16 this case, or any other group.

17 Then a publishing house, Columbia

18 University Press, published a book that

19 included, cited to, and quoted the Wegman

20 e-mails, e-mails obtained under the Virginia

21 FOIA. They showed no concern about a copyright

22 interest in those e-mails, either.

Page 82

1 And the author of the book showed no

2 concern either about the copyright interest

3 Wegman had or any threat to academic freedom

4 that Wegman might suffer. He showed utterly no

5 concern about publication of these e-mails and

6 whether they would chill academic work in the

7 correspondence of academicians during the

8 research process.

9 And who, Your Honor, is this author?

10 Michael Mann. This (indicating) is his recent

11 book. These (indicating) are the tags showing

12 where he referenced the Wegman e-mails, and

13 where he cited them and where he quoted them;

14 all of them received under the Virginia Freedom

15 of Information Act, all of them received after

16 Wegman published his work and it was open and

17 passed peer review and open to public review.

18 Now, we tell you that story because it

19 is important to understand the nature of this

20 case and the nature of Mr. Mann whose e-mails we

21 sought.

================================================

The PDF of the excerpts: Mann_April_Transcript

UPDATE: The full transcript is here on ATI’s website.

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