University of Virginia ordered to disclose Michael Mann’s emails

Source:  Washington Examiner

By: Norman Leahy

Could the long-running fight over former UVA professor Michael Mann’s emails be edging toward resolution? Perhaps. Yesterday, a Prince William county judge ordered the University to comply with a FOIA request from Del. Bob Marshall and the American Tradition Institute. According to the organization’s press release, getting the state-funded school to comply with the FOIA law was a test of both patience and will:

Under FOIA the University was required to produce the documents within five days of its receipt of payment for “accessing, duplicating, supplying or searching” for the documents. Alternatively they could have entered into an agreement with ATI on when they would supply the documents, or they could have gone to court to ask for more time. They did none of the above. Instead they promised to provide some of the documents “shortly” on April 6; then specifically on May 6, 2011; and always stated they would get to the others later on. They did none of this either, so ATI went to court to compel production and compliance with the law.

ATI finally received the first approximately 20 percent of the 9,000 pages of documents that UVA says are responsive to ATI’s request and that it possesses, only after ATI filed its petition, and two working days before the judicial hearing. Most of what ATI received in this seemingly hurried production, which was more focused on showing volume than content, were ads for Halloween costumes, public news releases from lay and scientific journals, and a few emails that were printed in computer code so as to be unintelligible in that form. Despite this product of (according to the University) 75 hours of review and more than four months, the University stopped work on producing anything further. Nevertheless some substance made it through UVA’s filter, which ATI will discuss after we review the withheld records.

The failure of UVA to honor its own commitments or to follow the law forced ATI to petition the court for relief. ATI filed its petition on May 16th, and the Court heard the matter Tuesday.

According to Chris Honer, ATI’s counsel, the initial slate of Prince William County judges who could have heard the case last Friday recused themselves to avoid any conflicts of interest (as the FOIA request itself came from Prince William County Del. Marshall). The case was heard by a visiting judge instead.

Of wider interest, though is that the documents ATI and Marshall will now bring to light are the same ones Attorney General Ken Cuccinelli requested from the University. His efforts were partially rebuffed by an Albemarle County judge who did not disclose a key conflict of interest (his wife worked for the school) and then proceeded, in Cuccinelli’s asessment, to invent new law in his decision to limit the AG’s request.

But while that matter is on appeal to the Virginia Supreme Court, ATI and Del. Marshall appear to have succeed using existing law to (eventually) compel the University to give up the documents it once told Marshall had been erased, as Mann was no longer an employee. ATI plans to make them public:

The day before the court hearing, UVA finally agreed to a date when they must produce all the documents they believe are not protected from disclosure. The court entered an order that forces UVA to honor that agreement and to produce the documents in easy-to-read electronic form so that ATI can make them available to all who wish to review the work of this highly controversial former Virginia employee. They must produce those documents by August 22nd.

And what of those documents the University contends must still remain sealed?

ATI has won the right to look at all the documents beginning no later than September 21, including those the University refuses to make public. The court issued a protective order that allows ATI’s attorneys, David Schnare and Christopher Horner, to see them all so that they can challenge any further UVA refusals to supply what the public paid for.

There’s still a long way to go in this matter, but that at least one judge has finally agreed that the University of Virginia is bound to comply with FOIA just like any other government body.

This development also all calls into question the continued expense of the University’s legal battle with the Attorney General’s office. If the documents Cuccinelli’s office sought are now to be made public by other means, shouldn’t the fight end? The AG may believe not, as his office contends that the Albemarle judge’s ruling set a bad precedent. UVA may be so invested in the matter that to stop fighting now would make them look unprincipled or weak.

But that has been their position all along. UVA’s inglorious and inconsistent history in this case leaves it with few good options. One thing is clear now, though: it must cough-up the documents under FOIA. And that’s a start
Read more at the Washington Examiner: http://washingtonexaminer.com/blogs/local-opinion-zone/2011/05/university-virginia-ordered-disclose-michael-manns-emails#ixzz1NOcnBZro

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