Those prone to rejecting the conclusions of climate science sometimes fixate on weird things. For years, there has been a concerted effort to prove that a specific paleoclimate record—often referred to as “the hockey stick” because of the sharp rise at the end—was somehow fraudulent. It doesn't seem to matter that many other researchers have replicated and advanced those findings. These people seem to feel that all of climate science would come crashing down if you could just dig up a golden e-mail that reveals a dastardly scheme.
The original record was partly the work of Michael E. Mann, now at Penn State, and he has been hounded ever since. There have been a number of attempts to get universities to turn over his e-mails over the years. But last year, an effort targeting one of Mann’s colleagues in Arizona seemed to have finally found success.
A group called the Energy and Environment (E&E) Legal Institute had turned from Mann and instead focused on Malcom Hughes and Jonathan Overpeck at the University of Arizona. E&E Legal filed a broad Freedom of Information Act request in 2011, trying to obtain 10 years’ worth of their e-mails with fellow researchers. When the university rejected the request based on legal protections for the data and communications of researchers, E&E Legal sued in 2013. Two years later, the court decided in favor of the University of Arizona.
The argument presented by scientists and universities is that researchers need to be able to discuss their work freely without having to worry that their every word could later be mined for some embarrassing phrase or hint of doubt—words that could be exploited by political groups. Science is done by the collection and analysis of data—published in peer-reviewed scientific journals for other scientists to consider—not by fishing through e-mails for “gotchas.” Thus, the groups seeking e-mails aren’t really interested in the scientific process; they just want material to score political points and intimidate scientists.
E&E Legal appealed on the grounds that the university shouldn’t be allowed to assert its legal privilege unchallenged. In June 2016, the judge reversed his decision and declared that the harm of releasing e-mails wasn’t compelling. The university was ordered to hand over everything E&E Legal wanted and to pay the institute’s legal fees.
The university immediately appealed that decision. The American Association for the Advancement of Science, the American Meteorological Society, the National Academy of Sciences, the Climate Science Legal Defense Fund, and the Union of Concerned Scientists all filed an amicus brief in support of the university. The drug company Pfizer even got in on it, because it collaborates with University of Arizona researchers and was concerned about the precedent.
These groups said that the judge had failed to account for a 2012 Arizona law explicitly granting the university the right to withhold records “composed of unpublished research data, manuscripts, preliminary analyses, drafts of scientific papers, plans for future research, and prepublication peer review.” The law wasn’t referenced in the judge’s decision at all, so no reason was given why it shouldn’t apply.
On September 14, an Arizona Court of Appeals judge ruled that ignoring the 2012 law didn’t cut the legal mustard. The case now has to go back to the original trial court to be re-decided while taking the 2012 law into account. E&E Legal will have to argue that the documents they are after somehow don’t fall under legally protected categories—and keep dreaming of the day that they read e-mails revealing misconduct behind a study that was published in 1998.
This is the second time in recent weeks that a lawsuit like this was decided in favor of scientists after the conservative group Judicial Watch failed to win access to the e-mails of NOAA scientists involved in a study of global temperature data.
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