Judge Sets Aside Virginia Attorney General's University of Virginia Document Demands
August 30, 2010
by Adam Kissel
Citing a failure to show "reason to believe" that fraud had occurred at the University of Virginia (UVa), Judge Paul M. Peatross, Jr., has set aside the Civil Investigative Demands (CIDs) issued to UVa by Virginia Attorney General Kenneth T. Cuccinelli, II, who has sought a huge swath of UVa documents in order to investigate possible fraud under the Virginia Fraud Against Taxpayers Act (FATA). The sweeping CIDs would have required UVa to find and hand over more than a decade's worth of documents involving dozens of researchers related to former UVa professor Michael Mann and his five UVa-related research grants.
Cuccinelli's initial demands for documents provided no evidence suggesting fraud on the part of Mann, and an extremely troubling precedent would have been set if his demands had gone unchallenged in that form. FIRE thus pushed Cuccinelli to reveal whether he had any basis for his comprehensive demands. Cuccinelli then provided a basis for his demands, and, as we noted in June, it was then up to the court to decide. The court has now decided that Cuccinelli has not shown enough reason to pursue the CIDs.
In his ruling (.pdf), Judge Peatross ruled that the "reason to believe" standard is not subjective—which would give the Attorney General "unbridled discretion to say he believes" fraud has occurred, without affording judicial review—but objective. That is, Peatross ruled that in such cases, the "nature of the conduct" must be spelled out in order to demonstrate an objective "reason to believe." Although Deputy Attorney General Wesley G. Russell, Jr., referred the court to fifteen pages of explanation, Peatross did not find this material to provide sufficient objective reason:
The Court has read with care those pages and understands the controversy regarding Dr. Mann's work on the issue of global warming. However, it is not clear what he did that was misleading, false or fraudulent in obtaining funds from the Commonwealth of Virginia.
The court also agreed with UVa's argument that "If the Attorney General and the University agree that the first four listed grants are federal grants, ... the Attorney General should not be able to investigate these grants." Furthermore, the court agreed that the fifth grant, a state grant dating back to 2001, could only be subject to investigation under FATA "if any funds were paid on the grant after January 1, 2003," the date FATA went into effect. (Documents from an earlier time could be requested "as reasonable discovery to evaluate any conduct after January 1, 2003.")
As for the scope of any possible future CID on the 2001 state grant, Judge Peatross stated that the information available for review would be limited significantly:
[T]his request would be limited to correspondence ... to or from Dr. Mann that relate to any information, materials or documents contained in the application for the 2001 U.Va internal grant and any information, materials, or documents provided by or to Dr. Mann that relate to approval or payment of any funds to him at any time under the grant until it ended.
This result looks about right. The judge appears to have set a reasonably high bar for demonstrating an objective reason to believe that a public university in Virginia holds documents relating to an investigation of a professor for fraud under FATA. This result should reassure faculty members across the state that their academic freedom is reasonably well protected, so long as they do not give the Attorney General any objective reason to pursue a fraud investigation. Conducting highly controversial research is not such a reason. Of course, in Mann's case, the Attorney General now has the opportunity to make a better case (or to appeal this ruling), so again we must wait to see whether any such reasons are forthcoming.
Furthermore, in such cases, the documents that must be produced should be limited to the topics of "the application for the ... grant" and "approval or payment of any funds ... under the grant." That means a huge swath of materials would not be subject to CIDs under FATA. This ruling should go a long way toward reducing the CIDs' chilling effect on faculty members in Virginia.