It has been 10 months since the American Tradition Institute filed a Freedom of Information Act request with the University seeking, among other things, all "correspondence, messages or emails" between former Environmental Sciences Prof. Michael Mann and 40 other individuals. In the interim, ATI and the University have engaged in a fierce legal battle about which, if any, documents covered by the FOIA request are exempt from public disclosure.
This saga has changed direction almost as often and as sharply as the legendary "hockey stick graph" produced by Mann and other researchers, which shows global temperatures trending upward and is at the heart of the ongoing controversy. Two rulings issued Tuesday by Prince William County Circuit Court Judge Gaylord Finch, however, could help establish a process whereby an orderly resolution to this controversy may finally be reached.
The first decision allows Mann to join the suit so that he may challenge, along with the University, ATI's right to gain access to certain documents pertaining to his research. Mann obviously has a stake in the outcome of this case since it is his personal correspondence and unpublished scientific material that would be released to the public if the University were to grant fully ATI's FOIA request. Therefore, Finch ruled correctly in granting Mann standing in the present lawsuit so that he can coordinate with the University about how to defend the privacy of portions of his records. This mitigates the possibility of him filing a separate lawsuit, which would have further delayed and complicated the ultimate settlement of ATI's FOIA request.
More importantly, Finch altered a protective order that the University and ATI agreed upon in May. The previous terms of the protective order were such that any documents the University considered exempt from FOIA were to be submitted to ATI so its lawyers could review them and determine whether to challenge their protected status in court. This process was flawed, however, because it de facto granted ATI access to the records it was seeking without establishing whether they were, in fact, eligible to be disclosed to the public.
Although the protective order prohibited ATI from further disseminating the material in question, it would have given the group an undue legal advantage by enabling it to examine material to which other individuals and organizations have no access. This would have made it nearly impossible for outside groups with an interest in the case to file briefs rebutting ATI's arguments as to why it feels the documents are not exempt from FOIA. Moreover, it would have undermined the very purpose of such exemptions by furnishing the filer of a FOIA request with material - including student-professor correspondence and unpublished research - that is meant to be kept private.
The revised process addresses these issues by requiring ATI and the University to choose an impartial third party to review the disputed documents and determine whether they are subject to FOIA. Since the two groups have been unable to agree on most issues thus far, Finch also wisely set Dec. 20 as the deadline for the selection of a third party and said in the absence of an agreement he would make the decision himself.
It is fortunate that by involving Mann in the case, Finch has made it possible for him to influence the outcome of the selection process as well. After all, it is his privacy and that of his former colleagues and students that is at stake in this dispute. Yet regardless of whether this process ultimately settles the debate or Finch must again intervene, it is encouraging that a fair and reason-governed approach to mediating disputes about FOIA exemptions has been established at a time when conflicts of this kind are increasingly common.
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