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University of Arizona Board of Regents to Appeal Trial Court’s Decision in Open Records Case

The Arizona Board of Regents filed a notice last week that it will appeal a February 26, 2018 Arizona trial court ruling in the University of Arizona’s ongoing fight against overly intrusive open records requests it received from the Energy & Environmental Legal Institute (E&E Legal), a coal-funded group that disputes the scientific reality of climate change.

The case, in which the Climate Science Legal Defense Fund has played a supporting role (see here and here), stems from open record requests E&E Legal made to the University beginning in December 2011, asking for over a decade’s worth of emails between Drs. Jonathan Overpeck and Malcolm Hughes—two prominent University of Arizona climate scientists—and their colleagues around the world.

Drs. Hughes and Overpeck were targeted by E&E Legal because of their substantial contributions to climate science. Dr. Hughes co-authored 1998 and 1999 papers that first presented what has come to be known as the “hockey stick” graph, showing a dramatic spike in temperatures in the Northern Hemisphere in the second half of the 20th century. Dr. Overpeck has done significant work with the United Nations Intergovernmental Panel on Climate Change (IPCC), acting as one of two lead authors of a chapter in the IPCC’s Fourth Assessment Report, a project that won a Nobel Peace Prize.

The University produced voluminous records in response to E&E Legal’s requests but withheld some emails, particularly those involving pre-publication drafts and peer reviews. The University has argued that these research records are exempted from being disclosed in two ways. First, it has pointed to a general Arizona provision that allows for the withholding of records when the public interest in protecting them is greater than the interest in disclosing. Second, the University has relied on a specific Arizona statute that protects universities’ “unpublished research data, manuscripts, preliminary analyses, drafts of scientific papers, plans for future research and pre-publication peer reviews.” (A.R.S. 15-1640(A)(1)(d)).

The preservation of scientific research correspondence and drafts is critically important to protecting the scientific endeavor. Safeguarding these materials, including peer review correspondence, ensures that scientists feel free to engage in a frank, creative exchange of ideas, including “devil’s advocate” arguments and “what if” debates that could be misunderstood or twisted by outside parties.

These kinds of communications between colleagues, which scientists reasonably presume will be confidential, are a crucial part of the scientific process in which scientists examine potential flaws or weaknesses in their methods or assumptions, and challenge both themselves and their collaborators. And while open records laws play a key role in promoting government transparency, they are increasingly misused by groups seeking to harass publicly funded scientists by obtaining these records as part of an effort to inhibit progress in critical areas of research such as climate, biomedicine, and epidemiology.

E&E Legal has openly admitted that it is trying to obtain climate scientists’ communications in the hopes of recreating the so-called “climategate” manufactured controversy of 2009. In this event, climate scientists’ emails were hacked and a few phrases, including scientific jargon, were taken out of context in order to falsely cast doubt on climate science.

In the current case, the University was initially victorious, with trial court finding that the University had acted reasonably in determining that the interests of confidentiality and privacy outweighed the interest in disclosure of the records at issue. However, the case has now gone up on appeal to the Arizona Court of Appeals twice, becoming muddier and more confused each time.

The trial court’s most recent decision ordered the release of the previously-protected emails—despite the fact it has, perplexingly, never addressed Arizona’s existing research protection law. Specifically, the trial court has yet to articulate how Arizona’s statutory protection for university research mentioned above applies, or does not apply, to the emails at issue. The trial court has declined to tackle this issue head-on despite the appellate court having now sent the case back down on remand twice, most recently with explicit instructions to the trial court to better explain the basis for its decision.

If E&E Legal is successful and scientists’ communications become subject to regular public disclosure, it will have a chilling effect and do serious damage to the scientific endeavor in the U.S. Scientists may self-censor as they go about their work and perhaps, in some cases, choose to forgo participating in a research project if they know it is likely to be controversial.

At CSLDF, we hope the appellate court will address the statutory exemption’s application in this case, and that it will recognize the importance of maintaining the confidentiality of these kinds of pre-publication communications among scientists.

— Augusta Wilson, CSLDF Staff Attorney

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