University of Virginia Fights Attorney General’s Sweeping Demand for Research Documents
May 29, 2010
by Adam Kissel
Thursday, the University of Virginia filed a petition to the Albemarle Circuit Court in Charlottesville, Virginia, asking the court to set aside the demands of the state's attorney general, Kenneth T. Cuccinelli, II, for a huge set of documents relating to the research and correspondence of a former professor, Michael Mann. As the petition notes, the origin of these demands was the set of "Climategate" documents that began to make international news in late 2009.
As FIRE wrote earlier this month in a letter to Attorney General Cuccinelli, we are concerned that this demand for documents may be a politically motivated fishing expedition with ominous ramifications for academic freedom. So far, investigations like that undertaken by Mann's current employer, Penn State University, haven't found any fraudulent conduct (PDF), and Cuccinelli hasn't publicly presented any new evidence to justify the investigation.
Fraud is a serious charge, one that needs to be firmly distinguished from simple disagreement with a researcher's methods or analysis, even when the disagreement is very vehement. Trying to turn up evidence of fraud through a massive and burdensome document request on a university—the petition points out that Cuccinelli's demands on UVa came only a week after Virginia filed a motion to add the "Climategate" e-mails to its litigation against the Environmental Protection Agency—is guaranteed to serve to discourage universities from tackling any kind of controversial research at all. The simple fact is that, just like FIRE, the Attorney General's office simply lacks the competency to judge the validity of climate research, which like any scientific research is an enterprise better left to scientists themselves.
Specifically, UVa's petition argues that Cuccinelli's civil investigative demands (1) fail to state the nature of the conduct being investigated, (2) are invalid because the five grants being investigated were either federal (rather than state) grants or were awarded prior to the passage of the act under which the demands were made, (3) are invalid because "there is no objective ‘reason to believe'" that the information requested would be relevant to a fraud investigation under the act, (4) are overbroad in asking for so much information (including all correspondence with dozens of other researchers over a decade), and are deficient in several other ways involving, notably, violations of academic freedom and freedom of speech.
The petition's Preliminary Statement cuts straight to the heart of the fundamental issue:
Academic freedom is essential to the mission of our Nation's institutions of higher learning and a core First Amendment concern. As Thomas Jefferson intended, the University of Virginia (the "University") has a long and proud tradition of embracing the "illimitable freedom of the human mind" by fully endorsing and supporting faculty research and scholarly pursuits." Our Nation also has a long and proud tradition of limited government framed by enumerated powers, which Jefferson ardently believed was necessary for a civil society to endure.
The Civil Investigative Demands ("CIDs") ... threaten these bedrock principles ..., and their sweeping scope is certain to send a chill through the Commonwealth's colleges and universities. [Footnotes omitted.]
The petition proper likewise states:
FATA [the Virginia Fraud Against Taxpayers Act] does not authorize the Attorney General to engage in scientific debate or advance the Commonwealth's positions in unrelated litigation .... This is particularly true where, as here, the information goes to the core of academic research otherwise protected by law. Unfettered debate and the expression of conflicting ideas without fear of reprisal are the cornerstones of academic freedom; they consequently are carefully guarded First Amendment concerns. Investigating the merits of a university researcher's methodology, results, and conclusions (on climate change or any topic) goes far beyond the Attorney General's limited statutory power. ... Permitting them [the CIDs] to be used in the sweeping fashion attempted here would impair academic freedom in the Commonwealth.
The petition also promises that the university "will file briefing" to support its claims. We look forward to reading it. Meanwhile, if the Attorney General has any real evidence to go on, we would all be better served if he would immediately produce it. In the meantime, the University of Virginia should be commended for standing up for the rights of faculty members in the Commonwealth.