Energy & Environment Legal Institute v. Arizona Board of Regents, Case No. 2CACV-2015-0086 (Ariz. App. Ct., Second App. Div., Dec. 3, 2015) (unpublished); and No. C2013-4963, (Arizona Superior Court, Pima County, June 14, 2016)

In this case currently pending before the Arizona Court of Appeals, the AAUP has submitted three amicus briefs in support of faculty members at the University who have been subjected to intrusive public records requests for emails related to their climate research. The case arose from a public records request for extensive material from two climate scientists submitted by a legal foundation seeking to use records requests in an attempt to “put false science on trial.” Most recently, the AAUP filed an amicus brief with the Arizona Court of Appeals, arguing that academic freedom to conduct research is essential to a vital university system, and to the common good, and warranted protecting certain research records from disclosure.

This case arose from a lawsuit filed by Energy & Environment Legal Institute, a “free market” legal foundation using public records requests in a campaign against climate science. E & E, previously known as the American Tradition Institute, brought similar cases involving public records requests of faculty members, including in the case of American Tradition Institute v. Rector and Visitors of the University of Virginia, 756 S.E.2d 435 (Va. 2014), in which the AAUP filed an amicus brief successfully opposing the ATI records request.

E & E submitted public records requests that targeted two University of Arizona faculty members, climate researchers Professors Malcolm Hughes and Jonathan Overpeck. E & E sought emails authored by or addressed or copied to them. The emails were, in turn, linked to eight other individuals, each of whom is or was then a professor or researcher at another private or public university. As E & E counsel has stated, the suit is supposedly intended to “put false science on trial” and E & E vows to “keep peppering universities around the country with similar requests under state open records laws.” The case was originally heard by the Superior Court in Pima County Arizona in late 2014.

The AAUP filed an amicus brief in the lower court on September 25, 2014. The brief argued, “when public records requests target information that implicates principles of academic freedom, courts must balance the public’s general right to disclosure against the significant chilling effects that will result from forcing scholars and institutions to disclose collegial academic communications and internal deliberative materials.” On March 24, 2015, the court ruled that the University did not have to disclose the records. The decision noted that the argument regarding the potential chilling effect of the disclosures was key to the decision.

E &E appealed this decision to the Arizona Court of Appeals. On October 23, 2015, the AAUP filed a brief in support of the University and the scientists. The brief was drafted by AAUP General Counsel Risa Lieberwitz, with input from AAUP Litigation Committee members, local Arizona Counsel Don Awerkamp and others. The brief argued that academic freedom warranted protecting the research records from disclosure. One key consideration under Arizona law is whether disclosure is “in the best interests of the state.” The brief explained that “Courts should consider the best interests of the state to maintain a free and vital university system, which depends on the protection of academic freedom to engage in the free and open scientific debate necessary to create high quality academic research. Where the requests seek prepublication communications and other unpublished academic research materials, as in the case at bar, compelled disclosure would have a severe chilling effect on intellectual debate among researchers and scientists.”

In its decision, the Court of Appeals focused solely on the burden of proof applied by the trial court and did not address the substantive question regarding whether the release of the records was appropriate. The trial court had ruled that the issue was whether the University had abused its discretion or acted arbitrarily or capriciously in refusing to disclose the records. The Court of Appeals determined that this was not the appropriate burden of proof. The Court of Appeals held “the trial court was required de novo to weigh the [University’s] contention that disclosure of the records would be detrimental to the best interests of the state against the presumption in favor of disclosure.” Therefore, the court remanded the case to the trial court. 

In its decision on remand the trial court ruled that the requested records should be released. The court explained, “[T]he Court does not ignore the repeated ‘chilling effect’ concerns raised in the affidavits and in the pleadings. However, the Court concludes that this potential harm is speculative at best, and does not overcome the presumption favoring disclosure of public records containing information about a topic as important and far-reaching as global warming and its potential causes. As noted in the previous ruling, the affidavits/arguments of AzBOR are compelling. However, they go beyond championing academic freedom and, in effect, promote the creation of an academic privilege exception to ARS §39 – 121. This is a proposition more properly made to the legislature rather than the courts.”

The University has again appealed the case to the Arizona appellate court. On July 12, 2017, the AAUP again filed an amicus brief in support of the scientists. Because the 2015 decision of the Court of Appeals did not address the substantive question of whether the release of the records was appropriate, this brief largely reiterated the arguments made by the AAUP in the October 23, 2015 amicus brief.


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