In a 2012 decision the Virginia Supreme Court rejected attempts by then Virginia Attorney General Ken Cuccinelli to compel disclosure of university research records. Cuccinelli who publicly opposes the theory of global warming, used his position to formally request emails and other documents relating to former faculty member and climatologist Michael Mann from the University of Virginia (UVA) arguing that he had authority to subpoena these records pursuant to the Virginia Fraud Against Taxpayers Act (FATA). The Supreme Court of Virginia held that state universities, as agencies of the Commonwealth, do not constitute a “person” under the FATA and therefore Cuccinelli had no authority to require release of the records and his appeal was rendered moot. (In another related case, the Virginia Supreme Court rejected a request for these records under the Virginia Freedom of Information Act.)
The case began in April 2010, when the Attorney General of Virginia, Kenneth Cuccinelli, served a civil subpoena on the University of Virginia (UVA). The subpoena demanded emails and a variety of other materials and documents relating to Michael Mann, a climate scientist who was a faculty member at UVA until 2005, when he left for Pennsylvania State University. Professor Mann was one of the scientists involved in “Climategate,” the November/December 2009 episode at the University of East Anglia in which a leaked email from Mann referenced a “trick” he used to create the “hockey stick” graph showing a sharp increase in global warming during the recent industrialized period. Although some suggested that the emails proved that global warming was a hoax, investigations by the National Academies of Science, Penn State, and an independent British review panel concluded that no research misconduct had occurred, and that Mann’s reference was to statistical methods rather than to fraudulent manipulations of the data.
Despite these conclusions, Attorney General Cuccinelli – who, a week before serving the subpoena, filed suit challenging the U.S. Environmental Protection Agency’s fuel standards on the grounds that the East Anglia emails constituted “after-discovered evidence” regarding global warming – apparently concluded that the actions reflected in Mann’s emails might constitute fraud under Virginia’s Fraud Against Taxpayers Act (FATA), which relates to expenditures of Commonwealth funds. He therefore served the University of Virginia with an extremely broad subpoena (or “civil investigative demand”) that asked for Mann’s communications with any of 39 other scientists, his communications with administrative assistants at UVA, and all materials (including computer programs) related to five grants for which he applied while at UVA.
After public pressure from the AAUP and other organizations, UVA filed a petition in Virginia court to set aside the subpoena, invoking academic freedom and arguing that Cuccinelli’s subpoena did not satisfy the requirements of FATA. The AAUP, the ACLU of Virginia, the Thomas Jefferson Center for the Protection of Free Expression, and the Union of Concerned Scientists filed an amicus brief in support of UVA’s position. The brief argued that the requested items were protected by the First Amendment and that the attorney general’s actions could seriously chill academic freedom, university scholarship, and intellectual debate. The brief also argued that the political controversy surrounding Professor Mann’s work did not rise to the level of fraud under FATA (or federal law).
In late August 2010, the Virginia state court set aside the attorney’s general subpoena, holding that some of Mann’s grants could be the subject of a request under FATA – if they used Commonwealth rather than federal funds – but that the attorney general had failed to show any reason to believe that fraud had occurred and that the scope of any information request must be more limited. The decision allowed Cuccinelli to try again with a more narrowly drawn subpoena, and in October 2010, Cuccinelli served another information request on UVA. Cuccinelli also appealed the judge’s decision to the Virginia Supreme Court (and UVA cross-appealed), and the university asked the circuit court to stay its decision on the follow-up subpoena pending the outcome of the appeal.
In March 2011, the Virginia Supreme Court agreed to hear the appeal, and the University of Virginia filed a brief strongly asserting that the subpoenas infringe academic freedom and chill scholarly debate. In April 2011, the AAUP, Virginia ACLU, Thomas Jefferson Center, and Union of Concerned Scientists again filed an amicus brief (.pdf) in support of the University of Virginia. The amicus brief argued that uncertainty about the validity of scientific research cannot, without more, constitute an allegation of fraud upon the Commonwealth. The brief also notes that the Supreme Court and other courts have recognized heightened constitutional protections for academic freedom under the First Amendment, and that an investigation like this one, targeted towards scholarly or scientific research under a vague allegation of fraud, poses serious risks of causing a chilling effect. As the brief explains, “in situations where an investigating official targets information subject to [the First Amendment’s protection of academic freedom], courts scrutinize the strength of the investigating official’s suspicion of wrongdoing and weigh it against the significant chilling effects that will result if scholars or institutions face burdensome investigations based only on the fact that they have employed research methods and reached conclusions that might prove unpopular.”
In its decision (.pdf), the Virginia Supreme Court dealt primarily with the threshold issue of whether the Attorney General had the authority to issue a subpoena, called a Civil Investigative Demand (CID), against the University of Virginia under the FATA. The FATA authorizes the Attorney General to serve CID’s on “any person.” However, the Supreme Court found that the University of Virginia, as an agency of the Commonwealth, “does not constitute a "person" under the [FATA] and therefore cannot be the proper subject of a CID.” Therefore, the Court found that “[b]ecause the statute does not give the Attorney General authority to issue CIDs to UVA, all other issues are rendered moot” and it entered final judgment in favor of UVA.