The Energy & Environment Legal Institute (EELI), which brands itself as the home of "free-market environmentalism through strategic litigation," has lost another round of said strategic litigation. An Arizona court has ruled that a large collection of e-mails from faculty at state universities can remain private.

The group (formerly the American Tradition Institute) has been attempting to obtain the e-mails of climate scientists who work at state universities through the states' freedom of information laws. In cases where e-mails are not released, EELI has sued. Last year, it lost a case in Virginia that focused on the e-mails of climate scientist Michael Mann, as a court ruled that information about research still in progress could be shielded from freedom of information requests in that state.

In the new case, the EELI went after the e-mails of faculty at state universities in Arizona, apparently including two who attempt to reconstruct past climates using proxies for global temperature: Jonathan Overpeck and Malcolm Hughes. The state Board of Regents refused to release over 1,700 e-mails, saying they were private, involved student information, or discussed ongoing research projects. This prompted EELI to sue.

In a decision handed down last week, the state Superior Court for Pima County upheld the state's decision. The court was given 90 e-mails considered "typical" of the remaining 1,700 to determine if the state was acting arbitrarily. The task was daunting; one e-mail chain took up over 800 pages when printed, and the court found that "to describe the content of the emails as technical and esoteric is an understatement." Nevertheless, the court concluded that the documents were as the Board of Regents described them, and thus that their decision not to disclose them was not arbitrary.

This is the second case where a state court has ruled that pre-publication research—in this case, "prepublication critical analysis, unpublished data, analysis, research, results, drafts, and commentary"—was not a valid subject for freedom-of-information disclosures.