Last Friday, the Climate Science Legal Defense Fund submitted an amicus, or “friend of the court,” brief in a case with important implications for scientists and other academics who work on climate change issues.
The lawsuit was filed by a special interest group called Government Accountability & Oversight, P.C. (GAO); GAO has ties to the coal industry and has a history of disputing and undermining climate science and climate policy solutions. Here, GAO targeted UCLA Professors Ann Carlson and Cara Horowitz, who work at UCLA Law’s Emmett Institute on Climate Change, because of their work to develop potential legal theories for climate litigations.
Using the California Public Records Act, GAO has spent years trying to review the correspondence of these two faculty members, while suggesting that their climate litigation research might somehow be inappropriate. Although the University produced thousands of pages of documents in response to GAO, GAO filed suit to attempt to compel the production of additional records.
As we argue to the court in our pending amicus brief, GAO v. Regents of the University of California is part of a broader trend driven by those who oppose regulation of greenhouse gases, as well as research that might support such regulations. These opponents frequently use open records laws to try to obtain the private communications of scientists and other academics at public universities who work on these issues. The underlying intent is to make climate research and climate progress more difficult and less effective.
This case is highly reminiscent of previous attempts by coal-funded groups obtain the emails of climate scientist Dr. Michael Mann from his time on the faculty at the University of Virginia, and of climate scientists Drs. Malcolm Hughes and Jonathan Overpeck while they were both at the University of Arizona.
Open records laws have a noble goal to provide transparency into how government funds are spent, but these laws are frequently misapplied towards scientific and academic research conducted at public universities (even if the research itself is privately funded). Weaponizing open records laws to target academic researchers, scientific or otherwise, does little to contribute to public understanding of government activities—the ostensible and laudable purpose of open records laws—since university professors do not serve in a representative capacity or have any authority to set public policy. Meanwhile, any research results are generally already publicly available, as reflected by the “publish or perish” mantra of academia.
Open records lawsuits against academics appear, rather, to constitute a concerted effort to intimidate and silence researchers whose work endangers fossil fuel interests, and to discourage others who might consider pursuing similar work.
Moreover, public disclosure of confidential faculty communications—particularly when they relate to prepublication research—inevitably chills academic inquiry and discourse. It ultimately harms the interests of public universities by making it harder to attract top talent, and by making potential outside collaborators less willing to work with university faculty for fear their correspondence or intellectual property may be made public. Furthermore, the harassing nature of these open records requests diverts significant faculty time and resources that could have been put to more productive use, such as advancing research or mentoring students.
Although it is California’s Public Records Act that is at issue in GAO v. Regents of the University of California, it is likely that the outcome will either encourage or discourage similar actions against universities in other states (every state has its own version of California’s open records law, and we have analyzed all of them here).
We hope that the court will deny GAO’s petition and institute protections to prevent other attempts to weaponize open records laws against important research.
Read our amicus brief here, which is currently under consideration by the court. Many thanks to the law firms MoloLamken LLP and Fenwick & West LLP for their tremendous assistance in this case.