MANASSAS, Va. — A judge is treading cautiously in a high-stakes case that pits the University of Virginia against a conservative institute seeking thousands of records related to climatologist Michael Mann.
Retired Arlington Circuit Judge Paul Sheridan, during arguments in Prince William County Circuit Court on Monday, denied without prejudice a motion filed by the American Tradition Institute that contended the university waived its right to the records when it released them last year to Mr. Mann’s lawyer and, in essence, Mr. Mann himself.
The ruling, while a defeat for ATI, means the group can make its case again at a later date.
“He did the only thing he could do,” David Schnare, director of ATI’s Environmental Law Institute, said afterward, suggesting he may revisit the argument. “How can you say you don’t waive them when you gave them up to somebody?”
Lawyers for the university maintained it did not waive its rights to the documents because it and Mr. Mann had a common interest agreement — in essence, the university and Mr. Mann are on the same side.
Mr. Schnare tried to undercut that argument by saying that Mr. Mann, who has since left UVa. and taken a position at Penn State University, is now an academic “competitor,” and, therefore, an adversary of sorts.
“He is the last person to whom the University of Virginia would want to give any proprietary information,” he said, adding that the university “selectively released” them.
Judge Sheridan did not accept the argument.
He is hearing the case after judges in Prince William County recused themselves because one of the plaintiffs is Delegate Robert G. Marshall, Prince William Republican.
The case is similar to, but separate from, an inquiry by Virginia Attorney General Kenneth T. Cuccinelli II into whether Mr. Mann defrauded taxpayers in seeking publicly funded grants while he was in Charlottesville. Mr. Mann was the creator of the famous “hockey stick” global-warming graph that charts a rapid increase in the Earth’s temperature during the 20th century. He gained further notoriety during the 2009 “Climategate” scandal, in which hackers gained access to scores of emails from scientists that global-warming skeptics tried to suggest were an example that the phenomenon is a manufactured controversy.
The Virginia Supreme Court dismissed Mr. Cuccinelli’s case last month.
Mr. Marshall first filed a Freedom of Information Act (FOIA) request in 2009 for Mr. Mann’s records from the university. The University of Virginia told him it did not have the documents, said Mr. Marshall, who was on hand for Monday’s proceedings.
But after finding out in the course of Mr. Cuccinelli’s case that the university did, in fact, have the documents, he joined ATI and they filed a new request in January 2011.
“We simply want what the citizens own,” argued Mr. Schnare. “As a matter of law, the commonwealth owns the records. Michael Mann is not the records’ custodian.”
Mr. Marshall and ATI were granted access to about 1,800 pages of documents but were denied about 12,000 additional pages they thought they were entitled to.
ATI produced emails of Mr. Mann’s it had obtained independently and asked the university to confirm whether they were among the emails in its collection.
The parties agreed the judge will now read the emails ATI obtained to determine whether they are relevant to the case.
Judge Sheridan on Monday deferred on several other of the parties’ motions. He asked pointed questions of both sides, admitting he was not prepared enough on the subject to issue a ruling from the bench about turning over the disputed emails.
“I’m a first-grader here,” he said with regard to Freedom of Information Act law. “Sorry I don’t have a more definitive ruling. … This case has clear potential for appeal, and I want everybody’s record.”
• David Sherfinski can be reached at dsherfinski@washingtontimes.com.
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