It is the fourth quarter, the team you hate (perhaps the Green Bay Packers) have been winning the whole time, but over the last few minutes your team has scored enough points to be just barely ahead. And, you have the momentum. The other team has many key players out with injuries, your players are really clicking, and all the stats have turned your way. Nothing is assured, but you are likely to win this game (may be you are the Vikings, so this is an extreme event).

But the other team (hey, let’s change them from the Green Bay Packers to the New Orleans Saints) is starting to play dirty. The referees are blind (maybe they’ve been paid off?) and are not seeing many of the obvious penalties, and their defense is trying really hard to injure your quarterback.

That was a metaphor. The following is an important press release from the Climate Science Legal Defense Fund. I’ll let you draw your own conclusions.

Yesterday, CSLDF filed a brief as amicus curiae, or “friend of the court,” urging the Arizona Court of Appeals to protect climate scientists’ files from invasive open records requests. CSLDF filed its brief in support of the Arizona Board of Regents, which has defended the records of two University of Arizona climate scientists from massive and harassing open records requests by the Energy & Environment Legal Institute (E&E Legal).

E&E Legal, as detailed further in our brief (available here), touts its mission as “free-market environmentalism through strategic litigation” and a key part of its strategy has been repeatedly misusing open records laws to go after huge swaths of climate scientists’ records. Its work has been described as “filing nuisance suits to disrupt important academic research”[1] as part of an aim to convince “the public to believe human-caused global warming is a scientific fraud.”[2]

In this case, E&E Legal claims that Arizona state open records laws entitle it to virtually unfettered access to two U of A professors’ files, and it has sought an astonishing 13 years of emails and other documents from both Dr. Malcolm Hughes and Dr. Jonathan Overpeck – 26 years of records in total. E&E Legal claims it needs these records because it is conducting a “transparency project,” and it has argued that these two researchers were somehow part of a “scientific-technological elite” that has “successfully corrupted public policy” with respect to “climate alarmism.”[3]

The University of Arizona turned over some records to E&E Legal, and litigated to withhold others. A March 2015 trial court decision validated the University’s decision to deny large portions of E&E Legal’s requests. (You can read more about the trial court decision here.)

CSLDF’s October 26th amicus brief asks the Arizona Court of Appeals, Division II, to uphold the trial court’s decision and protect climate scientists’ private correspondence and other records against E&E Legal’s intrusive requests. As described in our brief, E&E Legal’s requests are “part of a broader strategy of attacking individual scientists as a way to try to discredit theories or even entire fields of study.”[4] We agree with the Arizona Board of Regents, which argued before the trial court that these requests seek ultimately “to attack [researchers’] science, criticize their interactions with each other and publicly assault how they speak about or defend themselves against the increasingly small group of outliers who continue to deny man’s role in global climate change.”[5]

Unfortunately, abusive open records requests on publicly funded scientists have been an increasingly prominent method of using the legal system to attack climate scientists. Open records laws, namely the federal Freedom of Information Act (FOIA) or state equivalents, are intended to serve the public good and provide transparency on government decision-making by allowing citizens to request copies of administrative records – but open records laws can also be twisted into a tool for harassment of publicly funded scientists, such as those employed by the government or public universities.[6] Climate scientists in particular have been regularly subjected to attacks via abuse of open records laws, by E&E Legal and other ideologically motivated groups. In addition to the Arizona requests currently in litigation, E&E Legal has also filed similar open records requests in, at least, Alabama, Delaware, Illinois, Texas, Virginia, and Washington, D.C.[7]

In fact, CSLDF’s initial project was to generate funding and publicity for the defense of Dr. Michael Mann, who was on the receiving end of several invasive open records requests from E&E Legal. E&E Legal – then named the American Tradition Institute – sought massive numbers of emails and other documents that Dr. Mann had written or received over the course of six years of employment at the University of Virginia. After years of legal battling, the Virginia Supreme Court ultimately agreed in 2014 that the state’s open records protections included protecting research and academic “free thought and expression.”

But defeat in Virginia hardly slowed E&E Legal down, because “while they lose repeatedly, in one way they are successful: they confuse the public debate, and force universities and scientists to spend hundreds of thousands of dollars defending themselves.”[8] There is also a substantial time element – in Arizona, Dr. Hughes and Dr. Overpeck spent ten weeks and six weeks, respectively, culling and reviewing emails potentially responsive to E&E Legal’s requests.

Consequently, CSLDF has asked the Arizona Court of Appeals not only to affirm the trial court’s ruling but also “to make clear that, in the absence of a showing of exceptional circumstances, certain documents related to research are exempt from disclosure under the Arizona Public Records Law.” In particular, we believe that, unless there are extreme circumstances or potential conflicts of interest at play, “prepublication drafts, editorial comments, peer reviews, email (between and among researchers, co-authors, reviewers and other collaborators), unfinished or inactive research, and unused data” should be presumptively protected. ”Confidentiality must of course be balanced against the societal goods that traditionally justify public-record laws; CSLDF does not believe the presumptive exemptions it asks the Court to adopt will impede any appropriate use of the Arizona Public Records Law.”[9]

CSLDF is committed to protecting the scientific endeavor, and it is fighting back against legal attacks on climate scientists. We hope the Arizona Court of Appeals upholds the trial court decision, and implements protections to help prevent future attacks on public researchers. The best climate science needs climate scientists who can do their work free of harassment.

Many thanks to our wonderful legal team at Mayer Brown and Osborn Maledon for all their help.

To here to see the version with the footnotes.

Go HERE to donate to the fund.