- The Washington Times - Tuesday, September 6, 2011

A former University of Virginia professor who has drawn the ire of climate change skeptics is entering the legal fray over a conservative group’s pursuit of his emails and documents related to his work.

Attorneys for Michael Mann, now a professor at Pennsylvania State University, have filed a motion to intervene in a case brought by the American Tradition Institute’s (ATI) Environmental Law Center and Delegate Robert G. Marshall, Prince William Republican.

Under a May order from a Prince William County judge, the University of Virginia agreed to turn over a set of documents it believed were not exempt from the state’s Freedom of Information Act (FOIA) within 90 days to ATI.

Last month, ATI lawyers received a disk from the university containing about 4,000 pages the university believed were not exempt, though the group claims that the university had indicated there were 9,000 such pages.

The group has argued that the university is dragging its feet in producing the emails, while the university has insisted it is working in a reasonable process to comply with the request.

The university has until Sept. 21 to turn over documents it believes are exempt for review by ATI lawyers, under a gag order. Lawyers for Mr. Mann have also filed a motion to stay production of those documents, though, and requested a hearing at 10 a.m. on Sept. 16 in Prince William County Circuit Court.

ATI and Mr. Marshall had filed a FOIA request seeking documents, including emails, related to Mr. Mann, who is associated with the infamous “hockey stick” climate change graph charting a rapid increase in the temperature of the earth’s surface during the 20th century.

In a separate but similar case, Virginia Attorney General Kenneth T. Cuccinelli II filed civil investigative demands, akin to a subpoena, seeking records from the university to determine whether Mr. Mann defrauded Virginia taxpayers through seeking and obtaining grants. An Albemarle Circuit Court judge set aside the demands last year, but Mr. Cuccinelli has since appealed the ruling in a case currently before the state’s Supreme Court and filed a new demand in response to the judge’s ruling.

Christopher Horner, director of litigation for ATI’s Environmental Law Center, blasted the recent development.

“Dr. Mann’s late-hour tactics offer the spectacle of someone who relies on the media’s repeats of his untrue claims of having been ‘investigated’ and ‘exonerated’ - that is, when he’s not sputtering ad hominem and conspiracy theories to change the subject,” he said. “Mann has tried whatever means possible to ensure he remains free of any serious scrutiny, and this just appears to be his last gasp.”

Lawyers for Mr. Mann, however, argue the professor was not provided a copy of the protective order until after it was entered into the court, and that he wanted to intervene but lacked the money to do so.

But “recently, through a fundraising effort by the scientific community,” Mr. Mann was able to retain counsel, they wrote.

Indeed, Mr. Mann has been widely cleared of academic misconduct, including, most recently, by the U.S. National Science Foundation Office of the Inspector General.

“My research and methods have been a matter of public record for more than a decade, and our findings have repeatedly been reproduced and confirmed by other scientists, and validated by the U.S. National Academy of Sciences,” Mr. Mann wrote in an email to The Washington Times. “No group has the right to access every single private email a scientist sends just as they have no right to root through a scientist’s physical mailbox.

“I clearly have the right to make sure that my interests are represented in any matters involving the release of my private emails. Apparently, Mr. Horner wishes this were somehow not the case - which is really a statement about him, and his ethics and integrity, more than anything else.”

The university does not comment on pending litigation or motions of this nature, spokeswoman Carol Wood wrote in an email.

“The University has consistently stated that it will produce all responsive, non-exempt records that are public documents,” she wrote. “The University has also consistently said that it will carefully review Mr. Mann’s email in order to protect what is legally exempt through FOIA.”

David Schnare, director of ATI’s Environmental Law Center, said Mr. Mann lacks standing to even enter the case.

“He’s not a custodian of these documents,” Mr. Schnare said. “Under the law in Virginia, he can’t enter the case.”

Lawyers for Mr. Mann argue he does have standing and “unquestionably has an interest in this litigation because Petitioners seek the production of Dr. Mann’s personal e-mail communications with professional colleagues throughout the world regarding climate change and other scientific issues.”

They also wrote that Mr. Mann’s interests are not adequately protected due to the “mere fact” that Mr. Schnare and Mr. Horner, under the protective order, can review the exempted emails, though they would do so under a gag order.

Mr. Schnare, though, said that he and Mr. Horner were bound by law not to use the documents except, under seal, to turn them over to a judge to argue if anything further should be made public.

“That will be the totality of Mr. Horner and I’s opportunity to weigh in on this,” Mr. Schnare said Tuesday. “Mr. Horner and I will never be permitted to speak about whatever we’ve seen, and if anyone finds out that we have, we’ll have to … go to jail.”

But that prospect still didn’t sit well with Michael Halpern, manager for the Union of Concerned Scientists’ (UCS) Scientific Integrity Program. UCS was one of a consortium of groups that last month sent a letter to University of Virginia President Teresa Sullivan asking for a revision of the protective order.

“ATI should not be given special privileges,” he said. “It’s inappropriate for any outside group to have access to emails about student grades, research development and other privileged information.”

• David Sherfinski can be reached at dsherfinski@washingtontimes.com.

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