Arizona Court Slaps Down the Koch’s Anti-Science Team May 4, 2015

I asked Lauren Kurtz, Attorney for the Climate Science Legal Defense Fund, to give us an update on the latest embarrassment for the crank legal team currently known as E&E Legal, aka American Traditions Institute – the group that was soundly spanked by the Virginia Supreme Court last year, after its attempt to tie up the University of Virginia in pointless wrangling. Turns out judges in Arizona were no more sympathetic to science-denier attacks on academic freedom.

Lauren Kurtz for Columbia Law School Climate Law Blog:

On March 24, after years of litigation, the Arizona Superior Court, Pima County, ruled in favor of the University of Arizona and its efforts to protect climate scientists’ correspondence and prepublication work.[1] In particular, in Energy & Environment Legal Institute v. Arizona Board of Regents, et al., the court upheld the University’s decision to deny large portions of open records requests by Energy & Environment Legal (known as E&E, and formerly named the American Tradition Institute or ATI), a group that has repeatedly sought to use open records laws to access troves of researchers’ private files.[2] E&E has been described as having “a core mission of discrediting climate science and dismantling environmental regulations” in part through “filing nuisance suits to disrupt important academic research,” and the group has been linked to the fossil fuel industry, “major conservative players,” and “organizations opposing action on climate change.”[3] State and federal open records laws promote government transparency by allowing citizens to request administrative records, with exemptions for national security, trade secrets, and similar issues. But open records laws have also become common tools of those seeking to harass scientists,[4] and open records requests for large swaths of documents (including private emails) have been made on scientists employed by the government or public universities, or who otherwise receive public funding. The scientists must then review and produce potentially thousands of documents – sometimes in a matter of days, depending on the applicable laws – or marshal a legal response explaining why the requests are invalid. In the Arizona case, E&E filed multiple requests under Arizona’s open records laws for the files of University of Arizona climate scientists Dr. Malcolm Hughes and Dr. Jonathan Overpeck, seeking thirteen years of documents – including emails dating back to the 90s. (E&E has also unsuccessfully gone after Dr. Michael Mann’s emails in Virginia,[5] as well as many others.[6]) The University of Arizona produced some documents but denied release of several thousand others.[7] The University stated the withheld documents contained protected intellectual property, including trade secrets and prepublication data and drafts; it also applied Arizona’s general records exemption that it was “in the best interests of the state” to withhold the documents.[8] The University argued that releasing the scientists’ files would undermine academic collaboration and chill researcher correspondence – particularly between publicly funded scientists and privately funded ones, who are not at risk of such disclosure. This in turn would harm the scientific process and reduce the competitiveness of Arizona’s public universities, as researchers would become more reluctant to work at Arizona public universities or with public university scientists.[9]

I’ve posted before on how the Koch funded Right Wing has perverted “sunshine laws” meant to promote government openness into bludgeons to destroy privacy and freedom of thought. For a deeper dive, read on:

Chris Mooney:

…Michael Mann — who is quickly becoming the Galileo of climate science — triumphed over the conservative American Tradition Institute, and ongoing attempts at scientist-harassment. More specifically, Prince William County Circuit Court Judge Gaylord Finch both allowed Mann to join the case that ATI is pursuing against the University of Virginia to get Mann’s emails, and allowed UVA to back out of an agreement with ATI to let it review some of Mann’s emails that the university is nevertheless claiming are exempt from disclosure

Facing South:

It’s part of a lawsuit brought by the American Tradition Institute, a free-market think tank that wants the public to believe human-caused global warming is a scientific fraud. Filed against the University of Virginia, the suit seeks emails and other documents related to former professor Michael Mann, an award-winning climate scientist who has become a focus of the climate-denial movement because of his research documenting the recent spike in earth’s temperature. By suing the university, the American Tradition Institute wants to make public Mann’s correspondence in an effort to find out whether he manipulated data to receive government grants, a violation of the state’s Fraud Against Taxpayers Act.

The way to find out if scientists manipulated data, is to examine the data. The fact that Mann’s data has been available online from the publication of the very first “Hockey Stick” graph demonstrates that this fishing expedition is not about data – it’s about power, intimidation, and a national strategy by the Koch financed right wing “think tanks” to turn the Freedom of Information act, meant to be a means to shed sunlight on the dark corners of government and bureaucracy, into a new tool of surveillance and oppression, to silence free speech, and curtail thought at academic institutions across the country.

As the screen shot from my recent video on the climate-gate emails shows, Mike Mann’s data has always been freely available to whoever wanted it.

The Guardian:

After a day-long court hearing on Tuesday, a judge in Manassas, Virginia, granted Mann’s petition to join a lawsuit against the American Tradition Institute, an industry-funded thinktank that promotes scepticism about man-made climate change. In an email, Mann called the decision a “good day” for academic freedom: “I don’t think there is any way to view this as anything other than a win for us, and for science more generally.” Judge Gaylord Finch also granted a petition from the University of Virginia, Mann’s former employer, to revisit its earlier decision to let lawyers for the ATI have access to the emails before they were made public. Scientists had seen the demands for documents and private correspondence as an attempt to intimidate Mann and other climate scientists. Virginia’s attorney general, Ken Cuccinelli, has also pursued the emails. ATI is pursuing similar legal action against the Nasa scientist James Hansen, according to an investigation of the industry group.

But if you thought this was just about climate science, you are mistaken. This is the template for a new strategy of McCarthy-ist, authoritarian oppression and witch hunting.

New York Times:

The latest technique used by conservatives to silence liberal academics is to demand copies of e-mails and other documents. Attorney General Kenneth Cuccinelli of Virginia tried it last year with a climate-change scientist, and now the Wisconsin Republican Party is doing it to a distinguished historian who dared to criticize the state’s new union-busting law. These demands not only abuse academic freedom, but make the instigators look like petty and medieval inquisitors. The historian, William Cronon, is the Frederick Jackson Turner and Vilas research professor of history, geography and environmental studies at the University of Wisconsin, and was recently elected president of the American Historical Association. Earlier this month, he was asked to write an Op-Ed article for The Times on the historical context of Gov. Scott Walker’s effort to strip public-employee unions of bargaining rights. While researching the subject, he posted on his blog several critical observations about the powerful network of conservatives working to undermine union rights and disenfranchise Democratic voters in many states. In particular, he pointed to the American Legislative Exchange Council, a conservative group backed by business interests that circulates draft legislation in every state capital, much of it similar to the Wisconsin law, and all of it unmatched by the left. Two days later, the state Republican Party filed a freedom-of-information request with the university, demanding all of his e-mails containing the words “Republican,” “Scott Walker,” “union,” “rally,” and other such incendiary terms.

Michigan Public Radio:

Controversy continues to swirl around collective bargaining rights–and the protests that recent legislation has sparked–in Michigan and Wisconsin. At issue now is a number of Freedom of Information Act requests done by the Mackinac Center for Public Policy. The requests have been made for information on faculty at Wayne State, Michigan State, and the University of Michigan. Some critics are claiming that the FOIA requests are being used to intimidate college professors from participating in pro-labor protests.

New York Times:

A conservative research group in Michigan has issued a far-reaching public records request to the labor studies departments at three public universities in the state, seeking any e-mails involving the Wisconsin labor turmoil. The group, the Mackinac Center for Public Policy, declined to explain why it was making the Freedom of Information Act request for material from professors at the University of Michigan, Michigan State and Wayne State University. But several professors who received the records request, which was first reported by Talking Points Memo on Tuesday, said it appeared to be an attempt to intimidate or embarrass professors who are sympathetic to organized labor. This records request, which was filed Friday, comes several days after the Republican Party of Wisconsin made a records request to a prominent University of Wisconsin history professor, William Cronon, who had severely criticized the state’s Republican governor, Scott Walker, over his push for legislation to weaken public-sector unions. The Mackinac Center, which describes itself as a nonpartisan research and educational institution and receives money from numerous conservative foundations, asked the three universities’ labor studies faculty members for any e-mails mentioning “Scott Walker,” “Madison,” “Wisconsin” or “Rachel Maddow,” the liberal talk show host on MSNBC. Greg Scholtz, the director of academic freedom for the American Association of University Professors, said: “We think all this will have a chilling effect on academic freedom. We’ve never seen FOIA requests used like this before.”

“Rachel Maddow”? Now, the right wing wants to view your emails based on what kind of TV shows you’ve been watching.

Talking Points Memo, March 29, 2011:

A free enterprise think tank in Michigan — backed by some of the biggest names in national conservative donor circles — has made a broad public records request to at least three in-state universities with departments that specialize in the study of labor relations, seeking all their emails regarding the union battle in Wisconsin, Gov. Scott Walker (R-WI) and MSNBC’s Rachel Maddow, TPM has learned. According to professors subject to the request, filed under Michigan’s version of the Freedom Of Information Act, the request is extremely rare in academic circles. An employee at the think tank requesting the emails tells TPM they’re part of an investigation into what labor studies professors at state schools in Michigan are saying about the situation in Madison, Wisc., the epicenter of the clashes between unions and Republican-run state governments across the Midwest. One professor subject to the FOIA described it as anti-union advocates “going after folks they don’t agree with.” The Mackinac Center For Public Policy, based in Midland, Mich., submitted the FOIA requests last Friday and Monday to the Labor Studies Center at the University of Michigan and theDouglas A. Fraser Center for Workplace Issues at Wayne State University. A third FOIA was directed to Michigan State University, which has a School of Human Resources & Labor Relations. The requests specifically seek emails from all labor studies faculty at each school. The Mackinac Center For Public Policy describes itself as a “nonpartisan research and educational institute” focused on providing free market “solutions to state and local policy questions” in Michigan. The center does not disclose its donors but

according to recent reporting by Mother Jones, Mackinac “is part of a network of state-based groups associated with the Heritage Foundation.”

Talking Points Memo, March 30, 2011:

….the Mackinac Center, a Michigan think tank funded by big names in the conservative movement ranging from the Kochs to the Wal-Mart Waltons to the family that founded Blackwater, used the Freedom Of Information Act to request copies of every email sent or received by labor studies professors at state universities that mentioned Wisconsin, Gov. Scott Walker (R-WI), the city of Madison and Maddow. The universities have not decided how to respond, but the professors say the FOIAs suggest Mackinac is trying to catch them in illegal political advocacy. Mackinac has declined to speak on the record about the requests.

Under a withering barrage of outrage and ridicule, the Mackinac Center opened up –

The Mackinac Center:

We asked for these emails first because Ms. Maddow had recently criticized at length Michigan’s governor and his labor-related legislation in a TV segment virally circulated on the Web, and second because FOIA requests are an inexact art, much like a Google search. You can ask for everything, and get everything, but not only is it costly to do so (public bodies can charge the fair costs of retrieving public records), it is both time-consuming and needlessly intrusive on the activities of public employees. Hence, by including emails referring to Ms. Maddow, we were aiming to generate a more narrowly targeted set of emails that nevertheless didn’t depend closely on exact phrases that she or the letter writers might have used and that would have excluded emails relevant to our request.

Freedom, liberty, constitution, rights – are buzzwords these “think tanks” use in their PR – but the truth is that this closely coordinated network of true believing ideologues is dedicated to monitoring, survelling, and closing off, any intellectual activity that threatens the absolute economic power and political influence of the fossil fuel industry that funds them.