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U. of Virginia Asks Court To Halt Attorney General’s Demand For Documents

In a petition prefaced with lofty language from Thomas Jefferson, lawyers for the University of Virginia asked a state court on Thursday to stay or overturn an “unprecedented” demand by the state’s attorney general for more than a decade’s worth of documents related to a prominent climate researcher formerly on the university’s faculty.

The researcher, Michael E. Mann, taught at the university from 1999 to 2005 and is now director of the Earth System Science Center on Pennsylvania State University’s main campus.

In its petition, the university argues that the “civil investigative demand” issued by the attorney general, Kenneth T. Cuccinelli II, does not meet the requirements of the 2002 law he cited in making it, the Virginia Fraud Against Taxpayers Act, because the demand does not specify “the nature of the conduct constituting the alleged violation,” or even why Mr. Mann was singled out for investigation.

The petition also says that four of the five grants about which the attorney general sought information were made by the federal government, to which the Virginia law does not apply, and that the fifth, an internal university grant, was made before the law’s 2003 effective date. The law is not retroactive.

Brian J. Gottstein, a spokesman for Mr. Cuccinelli, said that the attorney general’s office would respond to the petition after reviewing it thoroughly. Mr. Cuccinelli, a Republican who has said that he questions climate researchers’ global-warming findings, maintains that he opened the investigation because “at least some information suggests” that Mr. Mann applied for the grants using research data that he knew were inaccurate. Mr. Cuccinelli has also said he is not investigating Mr. Mann’s academic work. “That subpoena is directed at the expenditure of dollars.”

Scrutiny on Climate Scientists

Mr. Mann is one of the climate-change researchers affected by the so-called Climategate theft of e-mails from scholars at the University of East Anglia, in England. Global-warming skeptics have asserted that some of the e-mails show that researchers manipulated research results, but a series of investigations on both sides of the Atlantic have so far uncovered no fraudulent conduct.

Mr. Cuccinelli’s investigation of Mr. Mann has drawn criticism from scholars in Virginia and elsewhere. Among critics have been the American Association for the Advancement of Science, the American Association of University Professors, the American Civil Liberties Union of Virginia, and the Union of Concerned Scientists. While some have interpreted the investigation as a warning shot across the bow of Virginia’s universities, Mr. Mann said last week that he believed it was part of a larger strategy to collect and review climate researchers’ e-mails for anything that casts doubt on their findings.

The attorney general’s demand, delivered to the university late in April, sought not only documents related to the five grants but also what the university’s lawyers called “a voluminous body of academic and scientific information, documents, and correspondence related to the merits of scientific research spanning a period of more than 10 years.” The lawyers added that the demand left unexplained the “nexus between these broad requests and the five grants” or any other potential violation of the fraud law. Unless a court stays the demand, the university is required to turn over the documents by July 26.

The petition argues that Mr. Cuccinelli’s demand threatens “bedrock principles” of academic freedom and of limits on the power of government, and it adds that the demand’s “sweeping scope is certain to send a chill” though the state’s colleges and universities.

The fraud law “does not authorize the attorney general to engage in scientific debate,” the lawyers for the university wrote. “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.”

The Chronicle of Higher Education, 27 May 2010