On July 17, 2017, the Climate Science Legal Defense Fund filed an amicus (or “friend of the court”) brief asking the Arizona Court of Appeals, Division II, to protect Arizona researchers from a “free market” group that targets climate scientists using open records laws. In our appellate amicus brief, we argued that an Arizona trial court decision forcing the release of scientists’ emails set a dangerous precedent and would be harmful to the scientific endeavor, and must be reversed.
On September 14, the Arizona Court of Appeals did reverse, and ruled that the trial court had erred in ignoring an Arizona statutory protection for university records.
State and federal open records laws promote government accountability by allowing citizens to request copies of administrative records, but these powerful tools – which were initially written with an eye towards policymakers – can also be misused to harass and intimidate publicly funded scientists.
Overly intrusive open records requests, particularly for emails, can discourage the candid exchange of ideas (including “devil’s advocate” arguments and “what if” debates). They also provide opportunities for hostile actors to take phrases, including scientific jargon, out of context in order to mislead and confuse the public. Climate scientists in particular have been subjected to “information attacks” by a “network of groups with close ties to energy interests that have long fought greenhouse gas regulation.”
In this case, the Energy & Environment Legal Institute (E&E Legal) – formerly named the American Tradition Institute – attempted to use open records laws to obtain a 13-year span of emails from two University of Arizona climate scientists, Malcolm Hughes and Jonathan Overpeck. The group’s work has been described as “filing nuisance suits to disrupt important academic research” as part of its work to convince “the public to believe human-caused global warming is a scientific fraud.” The group has been linked to the coal and oil industries, “major conservative players,” and “organizations opposing action on climate change.”
The case, which has already been through the trial court twice, now returns to the trial court for a third round. This time, it comes with a dictate from the appellate court to determine whether the emails sought by E&E Legal fall within Arizona’s statutory protection for scientific research.
An increasing number of states protect scientific research, usually through statutory means – including, most recently Rhode Island (effective June 27, 2017) and North Dakota (effective August 1, 2017) – but sometimes also via application of common law principles (for example, West Virginia). But while there has been a general trend toward lawmakers and courts recognizing the public interest reasons for protecting scientific records, states can have wildly varied and idiosyncratic approaches, increasing the odds for confusion and misuse.
Even when plaintiffs lose, they can still succeed in “confus[ing] the public debate, and forc[ing] universities and scientists to spend hundreds of thousands of dollars defending themselves.”
In the case now before the court, Dr. Hughes testified that it took him ten weeks to compile and review old emails, and he lost his summer research opportunity (the time he would normally focus on research because he teaches during the academic year), including losing grant funding that expired. Dr. Overpeck testified that he lost six weeks of his sabbatical to reviewing old emails, and that “this matter has been a grave distraction from my responsibilities to carry out research, teaching, [and] administration for the University of Arizona.”
CSLDF has helped other climate scientists fight E&E Legal’s invasive open requests over the past several years. The group’s demands are part of a growing trend focused on harassing scientists whose findings or fields of study threaten the financial interests or ideological beliefs of individuals and organizations.