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Scientific Process Harmed by Public Record Abuse, Brief Says

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Tucson, Arizona
The Arizona Board of Regents and the University of Arizona’s public records custodian are seeking to protect the ability of  Univeristy of Arizona scientists to collaborate and consult freely, absent threats that such communications will be misrepresented or taken out of context. | dmitri_66/Flickr CC BY-NC 2.0

The scientific process is threatened by a lawsuit seeking to compel the disclosure of more than a decade worth of emails, some private, between two prominent University of Arizona climate scientists, says an amicus brief that the American Association for the Advancement of Science joined on July 17.

The Climate Science Legal Defense Fund, a nonprofit founded in 2011 to defend climate scientists from what it calls “burdensome and invasive disclosure of scientists’ communications and preliminary analyses and drafts,” authored the brief filed with the Arizona Court of Appeals.

“Confidentiality of scientists’ email communications and prepublication drafts is necessary to ensure the uninhibited and creative collaboration among scientists that is at the heart of the scientific endeavor; to protect scientists from undue burdens; and to encourage scientists to enter into controversial yet important fields,” said the defense fund in its amicus brief. Among organizations joining AAAS in signing onto the brief are the American Meteorological Society and the National Academy of Sciences.                                                          

The filing supports the Arizona Board of Regents and the University of Arizona’s custodian of public records in their efforts to deflect the legal challenge of a group seeking the public release of 13 years of the two Arizona scientists’ emailed correspondence with other scientists and organizations about their research.

Jonathan Overpeck, a University of Arizona professor of geoscience and atmospheric sciences, and Malcolm Hughes, a regents’ professor at the university’s Laboratory of Tree-Ring Research, who contributed to the “hockey stick” climate research that identified a sharp increase in Earth’s Northern Hemisphere temperatures, are not the only two climate scientists from public universities who have landed in the cross hairs of the Energy and Environment Legal Institute.

The E&E Legal Institute, formerly called the American Tradition Institute, describes its mission as “free-market environmentalism through strategic litigation.” The organization has used public information laws in Virginia, Texas, Alabama and Delaware to pursue similar efforts to gain disclosure of the email correspondence of climate scientists, public records show.

In the Arizona case, which dates to 2011, the E&E Legal Institute requested the public disclosure of all email files to or from Hughes and Overpeck, a call that the university answered by releasing some documents and withholding 1,700 others that the university deemed “in the best interest of the state” to shield from public disclosure.

After E&E Legal Institute filed a lawsuit seeking the release of all the documents, the Pima County Superior Court ruled that the university had acted properly in withholding some of the documents. The case then moved to the Arizona Court of Appeals after the E&E Legal Institute appealed. The Court of Appeals sent the case back to the trial court which reversed its original decision.

The Arizona Board of Regents and the state’s custodian of the university’s records contested the reversal, arguing that the trial court disregarded the state’s public disclosure law and the “legitimate interests” of the university. They asserted when such a balancing is applied, the court would find the withheld documents were properly exempt from disclosure.

The E&E Legal Institute then weighed in, responding to the claims of the university and the public record’s custodian in stating that it is in the public interest to ensure “transparency” of academic research that taxpayers finance and that the state’s public record laws allow for such public disclosure.

“Neither the First Amendment nor academic freedom was ever intended to be a shield against the public’s right to know what their government is up to,” E&E Legal Institute stated in its challenge.

That response drew yet another from the university and its public record custodian urging the state appellate court to either protect the competitive interests of Arizona’s higher educational institutions by defending “the freedom, vigor, candor and integrity of the researchers who work there” or rule on its own that “the need to protect the confidentiality and privacy of the work done at Arizona’s universities” outweighs the public’s right to know.

In the amicus brief, the Climate Science Legal Defense Fund sides with the university arguing that E&E Legal Institute’s efforts “are part of a broader trend of harassment that threatens the core of the scientific endeavor.”

Releasing the “personal documents, correspondence, drafts and discussions whose confidentiality is traditionally recognized by the scientific community as essential to encourage the honest and productive exchange and refinement of ideas leading to new scientific insights and improved experimental designs,” according to the brief, would damage the ability of university scientists to exchange ideas freely and make it more difficult for the university to hire top scientists particularly since private universities are not subject to such disclosures.

Groups have been abusing public disclosure laws, the legal defense fund said in the amicus brief, “to harass scientists whose findings – or entire fields of study – they perceive as threatening their financial interests and ideological beliefs.”  

The amicus brief cited examples from an array of groups increasingly using public records laws to gain access to emails beyond those of climate scientists, including animal rights groups that have long waged legal battles against researchers who use animals in their studies and opponents of genetically modified organisms seeking to expose the emails of scientists in efforts to demonstrate links to industry.

“Whether this sort of harassment should be countenanced is not about any particular political or special-interest groups; instead, it is a fundamental question about whether anyone can use (or, rather, misuse) public record laws to stifle science,” the legal defense fund said in the amicus brief.

The case now rests before the Arizona Court of Appeals and the timing of court action on the matter remains unclear. The case could be sent back to the trial court again or end up at the Arizona Supreme Court should one of the parties’ appeal.

[Associated image: Patrick McArdle/UANews]