In the past, we’ve covered attempts by some political groups (or politicians) to access climate scientists’ e-mails. The idea is generally to trawl through them for anything that can be used to bolster the claim that climate science is somehow fraudulent—hypothetically vindicating those who have refused to acknowledge the scientific consensus for decades.

A long-time target of these activists has been researcher Michael Mann, whose work on tree ring climate records resulted in “the hockey stick,” a graph of the last millennium of climate history that shows rapid warming at the end of a gradual cooling trend. Although that record has been extended and replicated many times now, some still believe Mann must have somehow distorted the data to produce the appearance of sudden warming. As a result, Mann has been involved in court cases for years over demands for his e-mails from a conservative advocacy group and then Virginia Attorney General Ken Cuccinelli. More recently, Mann has been involved in a countersuit against those who publicly accused him of fraud.

Well, having failed to get access to Mann’s e-mails through the Virginia courts, the same opposition group (now called the Energy & Environment Legal Institute) decided to go after one of Mann’s colleagues since he worked in a different state. The University of Arizona rebuffed a very broad 2011 Freedom of Information Act request for the e-mails of Malcolm Hughes, part of the “hockey stick” team, and James Overpeck, a coordinating lead author of the 2007 IPCC report’s chapter on paleoclimate.

In 2013, E&E Legal took the university to court. The arguments employed in the case were revealing. Lawyers for the University of Arizona pointed out that if E&E Legal were truly interested in scientific questions about the tree ring research, they could have requested data or tried to replicate the analysis. Instead, they argued, they were feigning scientific concern in order to harass these scientists.

E&E Legal countered with an incredible hypothetical at one point: say a female cancer researcher hits a dead end and then goes on “mommy sabbatical” (their words) for 10 years. Suddenly, she has some sort of eureka moment and returns to academia. “I was just sitting around and folding clothes and I got it,” as the lawyer puts it.

In this case, E&E Legal argued, wouldn’t it have been preferable for a young student to be able to acquire all the researcher’s notes and preliminary data with a Freedom of Information request? They could have had that eureka moment nine years earlier and saved lives!

Unpersuaded, the Arizona court’s March 2015 ruling mirrored the earlier one in Virginia: the university could shield the “prepublication critical analysis, unpublished data, analysis, research, results, drafts, and commentary” of its researchers. The court agreed that the resulting “chilling effect” of similar fishing expeditions on other researchers was a valid concern, plus Arizona law made an exception for information that would “have an important and harmful effect on the duties of a State agency or officer.”

E&E Legal appealed. And now the court that heard the appeal ruled the judge shouldn’t have deferred to the university’s judgment of the potential harm of releasing e-mails, meaning the case returned to the initial judge. E&E Legal argued that the potential harm was overblown, even citing a 1959 House Un-American Activities Committee case in which a university was unable to protect a professor from inquiry about alleged communist ties by appealing to the First Amendment.

In June, the judge reversed his earlier decision. He wrote that many of the e-mails in question referred to work old enough that it couldn’t be considered unpublished; the potential harm to the researchers wasn’t compelling enough.

The University of Arizona still has an opportunity to appeal, but as things stand, E&E Legal will soon be able to dig around in the e-mails of James Overpeck and Malcolm Hughes. Perhaps they’ll finally find the fabled, fatal flaw in the “hockey stick” that researchers in the field have missed for nearly 20 years now.

By George

Meanwhile, a separate but similar case has played out back in Virginia. This suit was brought by the Competitive Enterprise Institute, led by lawyer Chris Horner—a long-time opponent of climate science who also works with E&E Legal. The targets this time were George Mason University professors Ed Maibach, who studies the communication of climate science, and Jagadish Shukla, a climate scientist.

Maibach and Shukla organized an open letter to the Obama administration last September supporting Senator Sheldon Whitehouse’s (D-R.I.) call for criminal investigations of fossil fuel industry corporations modeled after the tobacco cases of the 1990s. The letter was co-signed by 18 other scientists from a number of institutions.

A handful of states have since begun looking into just such a case against Exxon, following news stories revealing the company’s climate research in the 1970s and 1980s—findings that the company subsequently buried in order to lobby against climate policy. The idea is that this may constitute willfully misleading investors, making it securities fraud.

The open letter was initially hosted on the Web domain of the Institute of Global Environment and Society, a non-profit research organization founded by Shukla. The organization was in the process of being dissolved and folded into George Mason, but the website was still up at that point. (The PDF of the letter was later removed, and a statement described the posting as inadvertent.) Shukla quickly drew the ire of climate “skeptic” blogs and groups like the Competitive Enterprise Institute (CEI), which have accused him of misusing federal funding for personal gain. CEI filed a Freedom of Information Act request for any e-mails the George Mason professors on the letter had sent about it.

Maibach responded that while he had used his George Mason e-mail address to communicate with parties involved with the letter, those e-mails were private—written on his own time and not related to his job as a George Mason professor. Since private e-mails are excluded from FOIA rules, the university responded that there were no records to hand over. The lawsuit followed.

In April, George Mason lost that case and a judge ordered that the e-mails should be released. That’s when things got weird. The university appealed, but the court subsequently released a couple hundred pages of e-mails that had been held confidentially as examples during the earlier trial. At this point, George Mason decided there was no point in continuing the appeal, and so it prepped the other 1,500 pages of e-mails for release.

Maibach then got his own lawyer and filed to keep those e-mails under wraps so he could appeal the decision himself. Meanwhile, George Mason handed over the rest of the e-mails to the court—sealed since Maibach’s own case was pending. But CEI’s lawyers swooped in, neglected to mention Maibach’s pending case, and convinced the judge they could take the e-mails immediately.

A few days later, the e-mails were posted on the blog of popular climate “skeptic” Anthony Watts. They’re pretty mundane. Aside from all the hate mail received by the researchers that contained the FOIA search terms, the e-mails pretty much include what you’d expect from someone organizing a group letter. There are e-mails asking people if they’d like to sign on, e-mails asking people to look over drafts, and e-mails about the merits of the arguments made in the letter. A few are at least a little more unusual: advice that Jagadish Shukla ignore an interview request from Fox News, e-mails from Senator Whitehouse about backlash to the letter, and a vanilla response to the letter from the Obama administration’s Office of Science and Technology Policy Director John Holdren.

So while CEI got what they wanted, they probably didn’t get what they were hoping for. In a press release, CEI’s Chris Horner said, “This victory puts on notice those academics who have increasingly inserted themselves into politics, that they cannot use taxpayer-funded positions to go after those who disagree with them and expect to hide it.”

In the George Mason case, at least, the activity under fire wasn’t science. But in either case, as Lauren Kurtz of the Climate Science Legal Defense Fund has argued, “These sorts of lawsuits, regardless of outcome, subtract months of labor from the scientific endeavor and cost public universities hundreds of thousands of dollars in legal fees.”

Courts continue to find this tricky ground, balancing the terms of the Freedom of Information Act against the harassment of scientists by political groups. Successful suits may embolden groups like CEI and E&E Legal to attempt even more of these requests in their continuing quest to discredit climate science.