This is interesting:
The Madison School District has agreed to pay $31,454.57 in legal fees after the State Journal won an open records lawsuit over employee sick notes related to last year’s Capitol protests, the newspaper’s lawyer, April Barker, said Tuesday.
The State Journal filed the lawsuit in June after the district refused to release hundreds of notes employees turned in to ensure they weren’t docked pay for missing school during the protests. The newspaper also sought payment for its legal fees.
I know an open records lawsuit over teachers sick notes in Wisconsin doesn’t seem to have much to do with climate. Still, it’s an interesting outcome in light of the on going ATI/UVa case. At least in Wisconsin, not only did a Journal get access to sick notes– which one might generally consider “personal”– but it seems the school district fighting release was required to pay the Journals legal costs related to the fight. It seems blotting out individual names was sufficient to keep people’s privacy intact.
Seems about right to me. I’m sure some others may thing otherwise.
Read more: at Madison.com and
Volokh conspiracy.
I don’t get it. Why were sick notes written by climate scientists?
==========
kim–
Doctors wrote sicknotes for school teachers.
The similarity to the ATI case is:
Journal wanted to get the records from the school district=> ATI wants to get records from UVA.
School districts wants to exclude ‘private’ records=> UVA wants to exclude a lot of records. (We don’t know which– but exclude.)
Journal sues=> ATI sues.
In the school district case, the courts concluded that medical records could be released– though individual names or teachers are blotted out. So we see that at least in Wisconsin law, FOIA (or open records) type laws work to really, really make records accessible. The court doesn’t interpret the exclusions in a way that eviscerates the intent of the law which is to make records open.
Yah, yah, l; elites perverting the foundation of their honor, for politics. But it’s no good if I have to explain it.
=================
Lucia,
“School districts wants to exclude ‘private’ records=> UVA wants to exclude a lot of records. (We don’t know which– but exclude.)”
.
No, but based on ATI’s comments, what they were willing to release contained nothing of substance…. Releasing accumulated spam seems not terribly responsive to an FOIA request. So, what do they want to exclude? I think it is pretty clear: Effectively everything. Will the courts let them? I donno.
The Wisconsin court’s decision seems to be that you can release personal information if you can’t identify the people. Would that work with Mann’s emails?
Nick–
No one who hasn’t seen the emails can possibly know. It might work for an awful lot of them. Also, some claimed “private” may simply be deemed not private.
What I see here is a court looking for ways to fulfill the intention of the open records act. Rather than lean in the direction of not releasing it’s decision is to look for solutions that permit release. In this case, the solution is trivial to think up. I think many people suspect the school boards motivation in being unable to imagine a solution and not providing records was entirely political.
( You probably aren’t familiar with the whole Scott Walker/ recall election/ public employees/ schools things. But in this case, it’s quite likely that at least some in the Madison school district side of the legal battle had a very direct political interest in not releasing these records. They likely opposed Walker, supported the rally that teachers played hookey to participate in and wanted teachers and doctors to be able to do this in the first place and preferred the news story not have legs. In contrast, UVA’s interest would be somewhat different from the Madison Schools.)
Nick–
Also for you and others not in the US– just in case….
Wisconsin interpretation of Wisconsin law is in now way binding to Virginia interpretation of Virginia law. So, while I see a similarities, I’m not claiming this gives us a lot of insight. Precedents and the wording of the law in VA may differ from each other in important ways.
Well, Michael Mann is trying to keep his work-related emails from being release to the Virginia Attorney General (I think that is correct), who is investigating whether there might have been misconduct involved in falsifying research results, or at least generating model results that were intended to show a particular outcome. I have heard speculation that there might be one or more emails with incriminating statements.
No one is interested in Mann’s personal emails, Nicky. They want the emails that belong to the citizens of VA, that relate to the work he performed while on the public’s payroll. I am pretty sure they don’t want to see notes from Mann’s doctor, or emails from his wife telling him to stop on the way home and buy some milk.
UVA is not arguing that the 12,000 emails held back are private. They are arguing that they are proprietary. That’s going to be a loser.
Jim Bender–
The Virginia AG sought material for that reason and a judge refused to grant them emails.
The ATI FOI request is for largely similar material but on different grounds and using a different method.
I disapproved of the AG’s request because in my view he was a government official pretty much fishing at taxpayer expense. I consider that a misuse of the AG’s office. That said, I don’t pay taxes in VA. Nevertheless, I would not want a government official to devote staff time and state moneys to fish when there is really no evidence that there is anything around to catch.
I think ATI is entitlted to seek documents under FOI.
Maybe so.
But that wouldn’t prevent an enterprising judge from decreeing that UV redact the proprietary bits from the messages at their own expense explaining precisely what is proprietary about the redacted bits and sending the rest of the message on.
I honestly don’t believe that 90% of emails sent to and from anyone could be proprietary.
lucia,
I also don’t believe that 90% of the emails could legitimately be proprietary. I am saying UVA is going to lose.
In familiarizing himself with the VA FOIA, I am sure Judge Sheridan is going to run across this:
http://www.doa.virginia.gov/General_DOA/FOIA.cfm
“A public record is any writing or recording – regardless of whether it is a paper record, an electronic file, an audio or video recording, or any other format – that is prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business. All public records are presumed to be open, and may only be withheld if a specific, statutory exemption applies.
The policy of FOIA states that the purpose of FOIA is to promote an increased awareness by all persons of governmental activities. In furthering this policy, FOIA requires that the law be interpreted liberally, in favor of access, and that any exemption allowing public records to be withheld must be interpreted narrowly.”
I agree with Monfort. It seems that the UVa position is untenable.
the irony is that by virtue of UVa being obstructive and dragging the process out, the potential audience for any emails that may get released is going to be huge.
And if they do not get released then it still looks bad, especially because Mann has published extracts from them in a book.
John F. Pittman (Comment #95107) May 3rd, 2012 at 3:38 pm
“I agree with Monfort. It seems that the UVa position is untenable.”
Eli came up with something interesting from the Va State FOIA Advisory Council. Vergano (USA Today) had been rebuffed by GMU on some material relating to the Wegman Report. GMU had argued that this was not a document prepared “in the transaction of public business”. Although it obviously is public business, they argued that it was not public business of the University.
The VSFAC didn’t disagree. They did say:
“Therefore any records prepared or owned by, or in the possession of a University professor are public records under FOIA if they are in the transaction of public business. However, as stated in the first opinion published by this office, the phrase in the transaction of public business is not defined in FOIA.”
“Therefore any records prepared or owned by, or in the possession of a University professor are public records under FOIA if they are in the transaction of public business. However, as stated in the first opinion published by this office, the phrase in the transaction of public business is not defined in FOIA.â€
So how did they reach this conclusion? How can records be public records under FOIA if there is no such thing as public records under FOIA.
This sort of cretinism is why the legal profession exists. If the arbirters are sufficiently stupid, then lawyers can cash in big-time.
There are times when i wish I could be a judge.
Nick–
Interesting. If UVa takes the tack that contributions to the IPCC are not part of a faculty members job, they are going to have big arguments in court. After all, UVA’s promotion and tenure policy states
https://policy.itc.virginia.edu/policy/policydisplay?id=PROV-017#Service
If during promotion and tenure reviews Mann’s contributions to the IPCC were given weight — as the promotion and tenure policy suggests they would be– it will be very difficult to suggest that those contributions are not part of Mann’s job as a faculty member. Moreover, if faculty contributions to any external commitee come up during promotion and tenure reviews, it’s going to be hard to support the claim that those sorts of activities are not part of a faculty members jobs at UVA.
Nick, diogenes, Don (and others),
Nobody cares about Mann’s dentist appointments. They do care about the robustness of his scientific work…. and especially the nitty gritty of the process of reaching specific conclusions, and especially about the give-and-take/compromises made in reaching the conclusions as published. Yes, lots of people do care if Briffa (or someone else) says something like: “Mike you are way out of line here, the statistics do not support what you are saying…” And that is identically what UVA and Mike Mann do not want to disclose.
.
It is a classic (if profoundly hideous) case. I do not know which way it will go, but I still think the VA legislature can make things a lot clearer by revisiting the law. As written, UVa can contort the language of the law and claim the need to hide critical evidence in a murder investigation…or for that matter, essentially any information. IMO, the UVa claims are nuts. But the courts will ultimately decide.
Lucia,
They didn’t speak of whether it was part of his job. They spoke of whether it was the transaction of public business. They say, for example,
“In examining a similar issue, that opinion stated that electronic mail messages between members of a public body that are not related to the transaction of public business are not public records under FOIA, and therefore are not subject to its mandatory disclosure requirements. “
They didn’t say that the members didn’t write the emails as part of their job.
Oh Nicky, how could the withheld 12,000 emails be proprietary to UVA, if they were not related to UVA/public business? UVA have apparently never thought of claiming they aren’t public business, Nicky. Maybe they should hire the wabbette as their attorney.
Your lot are all over the freaking map on this stuff, Nicky. Floundering around looking for an excuse not to be accountable. Pathetic.
Oh Nicky, how could the withheld 12,000 emails be proprietary to UVA, if they were not related to UVA/public business? UVA have apparently never thought of claiming they aren’t public business, Nicky. Maybe they should hire the wiley wabbette as their attorney.
Your lot are all over the freaking map on this stuff, Nicky. Floundering around looking for an excuse not to be accountable. Pathetic.
Nick
Au contraire.
The way I read this, the opinion assumes that writing the report was “not part of the professors’ duties at the University. Based on the assumption that this is true, they then conclude Therefore the records are not in the transaction of the University’s or the professors’ public business.
However, in court, I’m pretty sure one would argue that writing the report was part of the professors duties. The requirements for promotion and tenure strongly suggest that public service is part of a professors duties, and presumably writing a report for Congress would be.
What a judge would decide, I don’t know. But I’d bet dollars to donuts that if UVA claims cooperating with the IPCC is not part of a faculty members duties to the university, ATI’s attorney’s will present evidence that it is part of a professors duties. Not withstanding the letter you point to– which is not a court precendent– I suspect that a court will decide cooperating with the IPCC was part of Mann’s job.
Mann and UVA argued against him being discovered on grounds that this was a sort of end-around FOI.
An interesting point arises about whether IPCC participation is part of public duties. This is separable from the FOI request. Why shouldnt ATI be entitled to discover Mann and UVA on this?
Lucia,
“They” in my observation was VSFAC. And they gave as example internal emails, which seem to be part of the job but not public business.
GMU argued that this exercise was not part of GMU duties, and therefore (their emphasis) not transaction of public business. There are other ways that you could seek to satisfy the test.
I don’t know how GMU’s argument would have fared in court. It’s not clear that VSFAC endorsed it, but they didn’t reject it either. Since Wegman must have spent not only a lot of GMU time, but also students and colleagues (Congress mentioned a team), he also would have explaining to do in saying it’s not part of his job.
Steve
Oddly, I am just now reading the “2012_04_16_Hearing_Transcript_full.pdf” document, and it appears to be that this precise question is being argued.
(Note: I slightly twisted my ankle while mowing the law and am self–medicating with ibuprofin and…. wine… and I am not going to provide any incisive analysis. But this point is being argued in court. I’m happy to learn I thought of it before reading it was argued in court. 🙂 )
The side seeking documents appears to have provided no counter argument and possibly conceded the point as fact. Mind you–if so, I suspect they were flat out wrong to concede it as a true fact. I think if disputed, a court would find that the notion that service is not part of a professors job would be rejected by any judge who read the job description.
But it is interesting that GMU (or Wegman) argued so and the document you point to seems to make a ruling based on this fact being true (when, in reality, it is false.)
The point is being argued in the ATI case. We’ll see what the judge decides. I will be amazed if the judge decides that co-operation with the IPCCwere not part of Mann’s job. (I’d be even more interested in how this affects universities ability to support faculty members interaction with professional societies and so on if a court rules this sort of thing is not part of faculty member’s jobs.)
nicky, nicky
“They didn’t say that the members didn’t write the emails as part of their job.”
You should have read it yourself, instead of letting the wabbette interpret it for you:
“The circumstances you have presented are somewhat different from those in past opinions in that the professors assert they did not use the University’s electronic mail system or other University resources or facilities in performing the work at issue. Accepting that assertion at face value, it still is not controlling in deciding whether the records in question are in fact public records subject to FOIA. Even if the professors only used personal electronic mail accounts and privately owned equipment in generating the records, the records could still be public records subject to FOIA because the professors are public employees, the records were prepared and possessed by them, and may have been in the transaction of public business. The final determination again depends on the subject matter or content of the records in question: were they in fact prepared in the transaction of public business? In this case, based on the facts you presented, the report was commissioned by and presented to Congress, not by the University. The professors and the University have asserted in the response to your request that the work performed was not part of the professors’ duties at the University. Therefore the records are not in the transaction of the University’s or the professors’ public business.
You have noted that the work is of great public interest and was commissioned by a public body, which, based on the background provided, appears to be Congress. Given that background, it would appear that the work in question may have been performed in the transaction of public business, but again, it appears to be the transaction of the public business of Congress, not of the University. This situation highlights the fact that under Virginia FOIA, a public body is responsible for providing the records it uses in the transaction of its own public business. As the requested records do not appear to concern or relate to the transaction of the public business of the University, they would not be public records of the University.2 “
Lucia:
In my experience with human subject research, that is basically the only privacy requirement (that you not be able to connect the person to the data, one crimp for us is that we compensated our human subjects, which involved storing the number of hours the subject participated in an experiment together with their SS number…and this had to be reported to the IRS. That gets tricky).
lucia,
I don’t think that the Wegman-Congress-GMU situation is analogous to the Mann-IPCC-UVA situation. The report that Wegman was asked to do for Congress was done on his own time, with his own resources, and was not directly related to research projects he had done at GMU, that were funded by the people of VA.
On the other hand, what reason would Mann have to be communicating with the IPCC through the UVA email system, while he was on the job, other than discussion/sharing of the research he had been doing at UVA? Ain’t that discussing the public’s business? If he wasn’t doing the public’s business, he owes the people of VA for the time he spent on IPCC business, and he needs to explain why he was sharing the people’s proprietary information, without authorization.
Don–
I disagree with you. FOIA law is FOIA law. There may be matters of fact that differ between the Wegman cases and the Mann cases. But there are 12,000 emails in dispute.
Quite likely, some Mann claimed exempt emails may to involve projects funded by people of VA. The Wegman case will be irrelevant in those instances.
But some may involve projects not funded by people of VA. Some might turn to reveal his work on “The Great American Novel” which he authors on weekends but someone accidentally sent to his publisher on UVA email (possibly because his home machine was configured to permit him to send and the default was his UVA address). In that case, the opinion in the Wegman case will hold.
Many emails are likely to fall inbetween. We dont’ know which class everything falls in because we don’t have the emails!
(My guess is that at least some of the emails UVA claims are exempt will be released. How many? I don’t know. I’d lay my quatloos on more than 25%.)
lucia,
I don’t disagree with you. Why you disagree with me ? I never said that FOIA law is not FOIA law. You must have me confused with nicky, or bugsy. Or maybe I am confusing you with my nuanced brilliance. I am going to catch up on the wine, so we can get on the same page 🙂 I get a later start than you do.
If I had any quatloos, I would lay them on 75%.
Don–
On this
I just think some aspects are analogous; others aren’t. But… yes.. wind interferes with precise expression of my thoughts.
Oh… my ankle…. I better get some ibuprofin!!!
(Should I see the doctor tomorrow? I didn’t when I was in Rheims. But I am in the US… my doctor is only 5 miles away….)
wind? 🙂
If it it still hurts in the morning, go to the doctor. I will watch the store for you.
Did Mann’s funding pass through the UVA? Would Mann have been funded had he not been at the UVA or a similar institution? Was he funded directly for anything in connection with his work? Who paid for the time he spent on IPCC matters? Was the IPCC work done on “overhead?” If overhead, then it would have been paid for by the university.
I can’t tell if these questions fall under the “rhetorical question” proscription, but it seems to me that an exemption for correspondence not “transacting” institutional business would much more likely apply to people not employed by the university communicating with other people not employed by the university but one or the other happening to have access to the university’s email system. Then if Mann is employed by the University and his entire compensation no matter what its source flows through the university’s business operation, it would seem strange that his activities on company time are not transactions of the University’s business.
Otherwise only Ex Cathedra pronouncements might be FOIAable.
Further thought on Discovery vs FOIA access: I suspect that the uses to which “Discovered” material may be put are quite restricted, whereas FOIA recovered material would seem inherently to become public.
Is it so unreasonable to have disdain for both sides of the ATI vs. UVA issue?
Lucia:
I disagree. Books written by professors substantially affect tenure, but it would be hard to determine if a book was written by a professor as part of his job or as a personal project. (This goes for reviewing papers, serving on editorial boards and etc.) I think people are used to the corporate world where many employers put clauses into their contracts that guarantee the corporation’s control over the employee’s intellectual product. They do so because there is a lot of gray area in determining what is work product and what isn’t.
Boris–
If the book writing is considered as a positive during promotion and tenure, then it’s part of his job. So is reviewing papers and sitting on editorial boards. Those acting as editors or heavily involved in professional societies often also sometimes have university employed secretaries do clerical work to support the task. In the past pre-email.wordprocessor, faculty members had secretaries write up cover letters on university letter head to send in with their reviews.
In those cases, the fact that the effort is not merely a personal task is manifestly evident.
University professors typically retain copyright while those at corporations don’t– but that doesn’t mean writing scholarly articles is not part of their job. Writing the articles is part of a faculty members job. This is true even if the faculty member dreams up something unfunded and publishes that article.
Of course, these questions will need to be thrashed out in court. That’s why Mann will have to be deposed. Then people can ask him and others like his former department head questions about his job description.
If UVA is going to have a very difficult time convincing anyone that faculty member traveling to professional society meetings is not part of their job. It will be especially difficult if the university ever permits funds for the trips and conference to be paid for out of overhead or if faculty don’t take vacation to go on these trips. And I don’t just mean paying for Mann or permitting Mann to attend without formally taking vacation. If the University kicks in funds for trips to society meetings for graduate students, newly recruited faculty &/etc. they will find it very difficult to convince a disinterested 3rd party that doing this is not part of a faculty members job.
In reality doing these things simply is part of the job. Who owns copyright is a separate issue. It is simply a fact that it’s possible for someone to retain copyright in material created as part of their employment if that’s the arrangement between the employeer and employees. This doesn’t magically transform the material into “not a product of their employement”.
I think that’s one interpretation, but it is certainly a gray area. I agree with you that some more emails will probably be released and that UVA should note why FOI does not apply to each email. I have no problem with a court deciding this issue.
Of course, I have a problem with the harassment by ATI in the first place, but the harassment in this case is legal.
Harassment under Color of Law. I believe only a government organization can be indicted for this.
Boris
But really…. I think if UVA argues it, they will be on the losing side.
Still, question is sufficiently grey that it’s going to be argued in court. To the extent the matter is grey, Mann needs to be deposed so he can answer questions about his job description. People at UVA will have to answer questions about promotion and tenure and so on. 🙂
I can see how the FOIs can be viewed as harassment. Or not. Depending on POV. But requesting documents is legal. Disputing the Universities self-diagnosis is legal. Even though I’d had to much wine last night, reading the oral arguments in the court case was interesting.
Regarding the Wegman emails noted above, one point to consider is that even though they may not have been subject to a FOIA request to GMU under Virginia’s FOIA, they very well may be subject to a FOIA request of the Federal Government, unless there is an exception of work done directly at the request of Congress. I don’t know the law so can’t answer that question. But it seems to me the Wegman/GMU argument is very narrow and properly is not analogous to the Mann case.
j ferguson
One of the distinctions between Cucci and ATI requests has to do with color of law.
… probably is not…
The issue of copyright is a bit complicated in FOIA. If the writer of a document (journal article, book, book chapter, etc) is allowed under their employment contract (or under normal conditions of employment), to retain copyright for creative work, as University professors clearly are, then logically any draft of that creative work, and documents/data related to the production of the creative work would not be subject to FOIA, at least until after publication, whereupon the copyright is formally transferred to the publisher.
.
It seems to me the exclusion section of the Va statute was written to specifically to address materials subject to copyright, which makes perfect sense. The real question is if everything a professor at UVa writes (emails, replies to emails, instructions written for grad students, notes for lectures, written rants about climate science “deniers”, written statements of loathing for those who disagree with you, etc) is protected by copyright. I mean, when you send someone an email message (or comment on a public blog!) it would seem reasonable (at least, reasonable to me) that the content of those communications is not necessarily protected by copyright under most circumstances. Copyright is a protection to keep people from using your work for their gain. I don’t see the possibility of financial gain from an email unless it is directly related to or descriptive of publishable but as yet unpublished creative work.
.
Will the court agree with me? Donno; I’d guess there is about a 50% chance it will. But I’d guess there is a near 100% chance the court will demand production of many/all the documents which are claimed by UVa to be exempt from FOIA for the court. I don’t believe UVa can ultimately refuse a request from the judge to produce all the documents, or as many of them as the judge wants, for the court’s review, since they would almost certainly lose on appeal (and really piss off the judge as well). But even appeals of a judges order for production of the documents for the court would probably take years…. which I suspect is perfectly OK with UVa and Mike Mann. If UVa wants to spend the money, (and risk the wrath of the legislature) they can probably drag out the process for a decade or more. I think there is good reason to believe that is what they will try to do, since no final decision for a very long time is almost as good as a final decision in their favor.
The judge is not going to let this drag on too long. There are important questions to be settled regarding the VA FOIA law. The key issue is, do the recipients of FOIA requests for public records have the right to decide what they are going to turn over. It seems clear that the intent of the law is to foster openness, not to permit stonewalling.
Judge Sheridan is retired and this is his only case. He will move it along. It will presumably be appealed and the appellate courts will move it along. In the meantime, the state legislature could clarify the intent of the law. It’s highly improbable that it is going to take a decade for these things to get hashed out. They are not going to leave the FOIA law in limbo that long by allowing stonewalling to continue without some mechanism for resolution. I say two years, tops.
Nick Stokes (Comment #95110)
Several have posted the relevant part from your eli link:The University did provide other documents that indicated that both professors did not use any University facilities, equipment, or resources in performing the work at issue, but instead worked on a pro bono basis at personal expense without state or federal funding.
The supposition by Eli about libraries is incorrect. I have had work that I did research in a University library. The work that I submitted was FOI -able and some of this was obtained FOI. The work that was done to produce the document was held, such as emails and other work such as correspondance , and in one case held by the owner’s lawyer, and no one could get it without a court order. Even a court order would require justification that is rarely given.
I do not know who owns certain part of the works with respect to Wegman. However some of my work which I own is only been available through a lawyer and a court if some one wanted it. I would never have to respond to a FOI. Still work is in the public domain that you can get if they still have it.
Several seem to be confused to ownership, confidentiality, and inclusions and exclusions wrt FOI. The reason I agree with Montford is that, as far as I know, the legal argument is not about one of the defined and ennumerated reasons to deny FOI, but something new. In fact, the arguement seems to be the claim of an inferred right. Though such is not without precedence, the ones that have won had a legal leg to stand on. I don’t see it, the documents are property of UVa, and FOI applys. Worse, the lawyers are arguing do not do as my client has done, but as I think you the court should rule. Though this is not insurmountable, it indicates that the first hurdle will be to explain why this new right should be recognized if no one recognizes it. That is propobably harder to overcome than an unrecognized right exits. In essence a special pleading…odds are low.
The last item, is I think UVa should have to give them up simply because they sent them to Dr. Mann. Although one can claim that Dr. Maan is an interested party, the same can be claimed for the public. However, in this case the law, regulations, guidance documents clearly state that errors are to be made on the public side. Thus when Uva showed they had a work(s) that could be sent to another party, without a huge expense as far as I can determine, they showed that the plantiffs claims of cost and feetdragging were just that. I do not think the judge is a fool and does not or will not recognize this. Short version, there is no such thing as a little pregnant. Now not only do they have seveeral hurdles to claim this unrecognized right, the reason that the plantiff is in court has or will be shown to be someone is trying to NOT meet FOI requirements.
So, the question to you, Nick, and others, why would the judge assume that this new right is not just more foot dragging, when he has ample evidence that footdragging is what this case is about? Please forgive the rhetorical, Lucia, but this is the question that some are not asking and from my point of veiw want to do anything to prevent others from asking and opining by sidetracking.
The question is what evidence is being brought that this is not footdragging. My conclusion is that there has been little if any evidence presented that UVa is not footdragging. Next hurdle, show that it is legal. This is where I agree with Montford except I would say that there is only about a 5% chance that almost all that is requested will not be released. Monfort is too kind.
SteveF–
Copyright law changed during our lifetime. Currently, when you write a grocery list on a piece of scrap paper, copyright springs into existence for that list. In the past, copyright only existed if you filed copyright.
But I don’t think anyone anywhere thinks your grocery list is “proprietary” in the way that term is generally used. While it is true that if I were to steal your grocery store list make a bajillion copies in a fashion that didn’t meet the requirements to fall under “fair use”, I would commit a copyright violation. But
a) that fact doesn’t suddenly vault your grocery store list into the realm of valuable property (i.e. it doesn’t become what people call “proprietary”) and
b) it doesn’t mean I couldn’t legally copy the list. I could copy it provided my copying met the requirements of fair use. (So, for example, I could copy it and then comment on your choices. In that case since I copied for the purpose of commenting on your choices, I’d almost certainly be ok!)
So, I don’t think the mere claim that emails might be copyright is sufficient to make them not be covered under FOIA. Because given current copyright laws, not all things that are copyrighted are actually proprietary.
(But this, of course, is one of the things that is being argued in court!)
Lucia,
Please consider any email I ever sent to you to be protected by copyright, even the ones where I complained about Eric Steig. 😉
John F.P.,
Nobody has ever accused me of being too kind 🙂 I have said that I don’t think that UVA/Mikey Mann have much of a chance of getting any of that BS by Judge Sheridan. The law very clearly comes down on the side of the public’s right to know:
http://lis.virginia.gov/cgi-bin/legp604.exe?000+cod+2.2-3713
“C. Notwithstanding the provisions of § 8.01-644, the petition for mandamus or injunction shall be heard within seven days of the date when the same is made, provided the party against whom the petition is brought has received a copy of the petition at least three working days prior to filing. The hearing on any petition made outside of the regular terms of the circuit court of a locality that is included in a judicial circuit with another locality or localities shall be given precedence on the docket of such court over all cases that are not otherwise given precedence by law.
…..
E. In any action to enforce the provisions of this chapter, the public body shall bear the burden of proof to establish an exemption by a preponderance of the evidence. Any failure by a public body to follow the procedures established by this chapter shall be presumed to be a violation of this chapter. ”
The law clearly provides for a swift hearing when disagreements arise, and the public body has to prove the exemption they are claiming is justified. Neither has happened in the UVA/ATI case, because the public body has been allowed to get away with dragging its big feet. Judging from da judge’s court room demeanor, I will guess that he is going to put a stop to that, soon.
According to Chris Horner:
http://washingtonexaminer.com/opinion/op-eds/2011/08/uva-goes-all-climate-gate-foia-coverup/40804
“If so, each of them is being withheld on the remarkable claim that they are “Data, records or information of a proprietary nature produced or collected by or for faculty … in the conduct of or as a result of study or research on medical, scientific, technical or scholarly issues.” Really.”
So any claim that the emails are not public business, goes out the window. And how do they prove that there is proprietary value in stuff that has been lying about on a stray server for six years, after it was supposed to have been deleted? And if it does have proprietary value to the people of VA, six years after it was supposed to have been deleted, why did UVA gratuitously ship it off to a long-gone former employee, who now works for a competing university?
All that UVA/Mann and their toadies have left to argue is some vague BS about academic freedom and science blah, blah, blah. They should get jobs at private institutions. Or jobs driving cabs and waiting tables, where many of them would be now if not for the CAGW scare. How am I doing , John? Mean enough 🙂
Monfort not give away something, but the most telling evidence I have seen is the presentation of Dr Mann’s work where he ignores all the claims that are now being made on his behalf. On the same level perhaps even more important is that UVa were able to give Dr Mann these emails without all the crap that they claimed in refusing to give them to others, such as costs, existence, etc.
The final straw is to consider in USA LAW with precedent, etc, to be science you must do what scientists do. Just think of what Mann has claimed and what Mann has done. The problem, though they will try to divorce it, is that UVa without coersion gave the documents to Dr Mann. Did Mann not do what scientist do and publish? Did not UVa confirm this with giving these to Dr. Mann? Or if he claims proprietary and he did not publish, that would not be what was requested in the FOI. Of course, if he published, he now can’t claim proprietary for publically paid work: he published, and now is being sought in the FOI.
I know lucia dislikes rhetorical questions, and I agree, but Nick and others post comments as though one cannot pose rhetorical questions. Yet we and Lucia can and do! The problem with Nick is not what he adrresses, but as Lucia has pointed out before that does not mean we can’t ask, just because Nick is trying to deflect us from asking. ASK away! I have a bunch of answers to questions to how important it is that UVa without legal request, that I have been able to find, gave the contested emails to a third party. Would love to discuss this and how eli and his library scenario are an utter fail!
Hey John, I wonder if they had a party over there at UVA, when they stumbled upon that forgotten backup server in the broom closet and discovered that they had not deleted all that proprietary material, way back in 2006. The judge should ask them if they have included the value of the re-discovered treasure in their budgeting. That would save the taxpayers a pretty penny.
Lucia,
Great catch on the WI teacher scam.
The charade of Mann/UVA on the e-mails is as shallow as their defenders come across.
“University professors typically retain copyright while those at corporations don’t”
Are you sure Lucia? I have signed copy-write agreements, giving the publisher copy-write, for every paper I have had published and for book chapters.
I own none of the figures/data I have published. Ony with IP and Patent work do I ever keep anything. This is why I have the IP people breathing down my neck for disclosure.
Doc Martyn,
This is actually proof you retained copyright while employed. If you had not retained it you would not sign the copyright form, your employer would. That would mean every paper would go to your Universities Legal Department to be signed by their lawyer. The latter is what happens at national labs and corporations.
You owned them prior to transferring the copyright to someone else.
There may be a difficulty that the university retains some patent rights. In this case, the fact that you publish could diminish their ability to patent. Private industry avoids this particular difficulty by having both patent and copyrights held by the employer in the first place. That way the IP guys can review each paper for disclosure of proprietary (esp. potentially patentable) information prior to permitting publication in a journal. Universities have greater difficulty doing this because faculty members may wish to publish and they may either not know or not care how that impacts the ability to patent something.
I recently attended a free seminar on IP and copyright at my old university. Lucia comments match what they said. However, there can be complications, such as if you work in a lab that is also funded privately. Also, if you work in collaboration with others. Each University usually has a policy that will explain most situations. If IP people are breathing down your neck then it’s likely in the interest of the University or Corporation, not you. I also picked up a book called Copyright Law in the Law section of the University Bookstore (Canada) a couple of months ago. So I am an expert, just kidding! – but here is what I got from what I’ve learned:
For work produced in the course of employment it depends on what your job expectation or contract is. If you are a janitor and you write a book about it. Unless the employer asked him to do so then it’s the janitors copyright.
For education if you are supposed to be writing course notes then they belong to the institution or whatever the contract says but if you write them on your own then they are probably yours. If a student write notes from your class then they cannot publish them. If they write an original essay or thesis then that is the students copyright.
If a university director uses a university computer lab and employees to create a program that the director intends for private profit that the university didn’t know about then that is considered a breach in trust and faith by the employee and so that university would be held to own copyright in that program.
There are a couple of questions that need to be answered in each case 1) if not created would you have been in breach of contract or employment obligation? 2) Is it a breach of trust or loyalty to your employer?
For something like committee reports and meeting notes, there is no legal interest in them so they belong to the institution. Email may fall into this category but I don’t know. My understanding is if the email had something original and was a “no” answer to the 2 questions above then it would belong to the employee. Unless you know the contents it would be hard to say.
We have quite a good IP policy; 50% to inventors, 25% inventors labs costs and 25% to the Institute.
lucia:
While I agree with the idea you’re expressing, I think you’re wrong on this example. I believe the courts would rule a grocery list is not substantive enough to qualify for copyright.
this should be ok now.
test
OT but very warm April. UAH is late, but MSU up 0.26°C, and TempLS (GHCN based) up 0.2°C.
Nick–
I’ve been waiting for UAH– but yes. That’s up!
Nick, your OT is very telling. Is it because the sea ice isn’t cooperating with you this time? Just think where we would be without the extra co2 saving our bacon.
MrE–
That’s not fair. I usually post the UAH results by now and Nick knows that. But John Christy is out of town so I don’t have the data.
lucia,
RSS is 0.333 for April.
I have a Lucia/Mosher type request.
Take the BEST rate distribution data and take the 12 tree cores reconstruction vs. 400 tree cores that Steve Mc has managed to get.
Convert the Yamal 12 tree and 400 tree into a rate domain. Then calculate the error distribution for n=12 and n=400, based on the BEST variance of rate distribution.
Then calculate the error-bars just resulting from sample size, back in the time domain.
Just what does having a n=12 vs. n=400 do to your error bars?
Doc,
I prefer to look at Yamal differently. First, I would do the reconstruction using all the available data, so 400 cores.
Then, however, we need to recognize that not all trees respond to temperature in the same way. Theory and measurement both confirm this. The questions are.
1. is there an objective proceedure for selecting temperature responders.
2. how does this selection proceedure effect uncertainties.
simply: you can screen cores for an HS response and then guess what? you get a HS and you will also deflate variance in the past.
At this stage I’d do both. no screening and screening. I’d show both results and focus argumentation on selection process. That is where the real statistical debate should be centered. what data gets used? what data gets left out? how does our understanding change if we make different data choices. For me that is always step one.
in some fields you never make it past step one.
As it stands the selection process is not studied ( to my taste) in a methodical exhaustive way. A methodical way would probably raise more questions than it answers. People dont like that. I do.
In some ways, and steve would agree, the vast majority of McIntyres work is about the data selection. Give me one proxy with a HS shape and ANY linear method will give me a HS out the other end. wiggle suppression/expression will differ depending on the
1. data in
2. method nuance.
me, I want to to see the full envelope of approaches. its only data and math. nobody is going to go blind or evaporate.
Steven Mosher:
If I were doing it, my first step would be to look for common patterns within the data. For example, I might use PCA (when used properly, it isn’t a bad thing). For each pattern, I’d make a “collection” of data responsible for it. That would allow me to clearly state what data shows what.
I think that would be the best first step. There wouldn’t be a need to argue about methodologies or data selection. It would just tell everyone what the data shows. Everything else could then be built upon it. Once it was done, people could argue what data was “good” or “bad,” how much weighting different series should get, etc, but they’d have to be fairly clear about it. They wouldn’t be able to just grab tons of data and say, “Our thousand proxies show…” when it’s really just ~50 proxies giving their answer.
Brandon Shollenberger (Comment #95352)
If I understood your suggestion it would be to look at the data without regard to temperature just to see what it looks like. It might be that 1,000 cores suggest (exhibit?, cointain? express?) a pattern which might not at all follow temperature. it would be as if there was some other signal in the noise which was ignored because it wasn’t the right signal. What a wonderful idea.
I wonder if anyone has done that to date.
Steve, I salute your indefatigability.
I was not after the shark, but after a different fish. I just wanted to know what the absolute minimum number of cores are required to have small error-bars in these type of reconstructions; using the distribution revealed by BEST.
Of everything in BEST, I think the distribution of rates is the most interesting. The distribution change the whole way one has to define error in reconstructions.
j ferguson:
That is part of it, but a larger part of my suggestion is just to figure out where signals come from. Why should we have reconstructions using dozens of proxies if the conclusions are entirely dependent on just a couple? Why should we have reconstruction after reconstruction use the same data to reach the same conclusions? We shouldn’t.
The simple reality is scientists haven’t been trying to figure out what the data shows. They may say they have, and they may even believe they have, but it’s not what they’ve been doing. And it is what they should be doing.
I don’t believe it has been done in any systematic way, but sometimes people will talk about a signal they found in addition to the temperature signal (I believe Mann even did this for his original hockey stick).
Brandon Shollenberger, real scientists have to analyze all the data-sets they have, or to have an a prior, exclusion criteria.
If I run controls vs +X, I have to include controls when all the cells die EXCEPT if we can detect fungi (as these infections occur from time to time).
We also have to determine the size of n, a prior. We cannot toss coins and run control vs. +X until we get a sequence that is statistically valid.
Imagine you run control vs. +X, morning and afternoon. You could truthfully report Thur, Fri, Mon, Tues and Wed were statistically different; but if you actually did Mon-Fri x2, then your pants are on fire and you have to become a climate scientist.
DocMartyn, I honestly have no idea what your point is. Could you clarify what the relation is between what you said and what I said?
More hot OT. David Appell says that UAH is up 0.295°C from March.
Still not up at Roy’s which is the “official” site for betting outcomes. But that’s warm!
Doc
I think I understand your test. with N=12 and the variance you see in temperature rates..
e
Interesting idea.
I also enjoy the distribution of rates. I think the video carrick showed ( convection) was another field I’d like to sample
“UAH is up 0.295°C”
From the discovery website it looks like April UAH will be about the same as 2003, but I have no idea what the 2003 figure was.
HR (Comment #95367),
Jan-03 0.29
Feb-03 0.17
Mar-03 0.08
Apr-03 0.15
May-03 0.22
Jun-03 0.03
Jul-03 0.11
Aug-03 0.11
Sep-03 0.19
Oct-03 0.30
Nov-03 0.22
Dec-03 0.37
#95364
I may have mis-read David Appell – he says UAH is +0.295°C which I took as a rise, but may just be the absolute figure. The March figure was 0.11°C.
0.295?
Looks to me like Peter sneaks off with most of the quatloos – not many of us got close, again.
Yep. It was 0.295C. The results are up!
Anteros (Comment #95373)
Betting on noise is much like betting on a roulette wheel. It’s a pointless exercise.
You know what bugs– I disagree.
Betting on the temperature anomaly is a fun diversion. But beyond that the game reminds people about the history. The history includes the trend over the period, the magnitude of the variability and so on. Even though the temperature is very noisy which means those with a better understanding can’t necessarily out bet those with less understanding, it’s still useful that overtime, betting helps people understand:
1) There are elements of predictability. Knowing ENSO helps relative to not knowing ENSO.
2) There has been an upward trend over decades but on a monthly basis that’s small compared to other factors.
3) Periodic comparison to models suggests models are likley off in their long term forecast
We can have longer and shorter term bets to vary the amount of noise etc. This year I didn’t do annual because there were too many hospital trips with the inlaws and so on, but we usually do some. That’s a little noisier. We don’t to 5 year means because…. well… too long between placing bets and reporting.
I don’t know why you read the posts on betting and then grouse about it. I think soccer, hockey and Nascar are boring and pointless. My solution is to just ignore them.
bugs (Comment #95377),
Betting is not pointless because somebody wins and I don’t think it’s entirely noise we’re betting on.