On Friday, March 25, CSLDF filed a brief (available here) as amicus curiae before the Pima County Superior Court in Arizona, arguing for protection of climate scientists’ private files against invasive open records requests by the Energy & Environment Legal Institute (“E&E Legal”).
Since 2013, E&E Legal has been attempting to use Arizona open records laws to access 13 years of emails and other documents from University of Arizona climate scientists Dr. Malcolm Hughes and Dr. Jonathan Overpeck. E&E Legal claims it deserves these files because it is conducting a “transparency project,” and it has argued that these two researchers somehow constitute a “scientific-technological elite” that has “successfully corrupted public policy” with respect to “climate alarmism.”
The University of Arizona turned over some records to E&E Legal, and has been litigating to safeguard others.
Last year, the Superior Court validated the University’s decision to protect the scientists’ files against E&E Legal’s harassment attempts. E&E Legal appealed and the Arizona Court of Appeals, determining there had been procedural error, has remanded the case back to the Superior Court for rehearing.
Like our earlier amicus brief before the Arizona Court of Appeals, our new amicus brief urges the Superior Court to again protect climate scientists’ private correspondence and other records against E&E Legal’s intrusive requests. As detailed in our March 25th brief and accompanying motion, E&E Legal’s motivation is not transparency but “to interfere with climate scientists’ work in an attempt to discourage the pursuit of climate science and impugn the integrity of climate science as a whole.” E&E Legal has received substantial funding from the coal industry and other fossil fuel interests – and it works to “fil[e] nuisance suits to disrupt important academic research” largely by “abus[ing] open records laws to harass climate scientists across the United States.”
In addition to its attacks in Arizona, E&E Legal has also used open records laws to go after researchers in Alabama, Delaware, Illinois, Texas, Virginia and Washington D.C. This includes a three-year legal battle, under its former name the American Tradition Institute, attempting to force the University of Virginia to release six years of Dr. Michael Mann’s emails. CSLDF was formed to help Dr. Mann fight back against this attack, which ended in a Virginia Supreme Court decision protecting Dr. Mann’s records and affirming that state open records laws include protections for research and academic “free thought and expression.”
We expect the Arizona state court to also ultimately rule for the protection of science. (In fact, it already has.) But, as E&E Legal is well aware, “while they lose repeatedly, in one way they are successful: they confuse the public debate, and force universities and scientists to spend hundreds of thousands of dollars defending themselves.” E&E Legal is also able to force scientists to attend to litigation instead of spending their time researching – in Arizona, Dr. Hughes and Dr. Overpeck spent ten weeks and six weeks, respectively, reviewing emails in response to this lawsuit. And while E&E Legal’s efforts to force the Arizona Superior Court to reconsider its earlier decision will likely yield the same result, E&E Legal has the satisfaction of inflicting an additional round of litigation.
Consequently, CSLDF has asked the Superior Court not only to again protect scientists’ records but also “to make clear that, in the absence of a showing of exceptional circumstances, certain documents related to research are exempt from disclosure under the Arizona Public Records Law.” In particular, we think that, unless there are extreme circumstances or potential conflicts of interest at play, “prepublication drafts, editorial comments, peer reviews, email (between and among researchers, co-authors, reviewers and other collaborators), unfinished or inactive research, and unused data” should be presumptively protected. While open records laws are critical tools for understanding government and policy, the increasingly expansive application on scientists is troubling and “broad-ranging [open records] laws risk being tantamount to permanent wiretaps in academics’ offices.” We believe our requested presumptive exemptions will not undermine any appropriate use of the Arizona Public Records Law.
We are committed to protecting the scientific endeavor, especially defending scientists from abusive legal attacks. We are hopeful that the Arizona Superior Court will, on remand, again rule that overbroad and invasive public records requests for researchers’ scientific correspondence are not appropriate.
Many thanks to our terrific legal team at Mayer Brown and Osborn Maledon for their wonderful help.
 Petitioner E&E Legal’s Reply Brief dated August 28, 2014.