UVA home to two open-government issues

It was a cruel spring at Mr. Jefferson’s University. In what should have been a time of flowering dogwoods and days of hope and promise for the future, the University of Virginia found itself in the midst of two issues of national interest, and both including a transparency element.

The first, and most regrettable, is the murder of UVA women’s lacrosse player Yeardley Love, presumably at the hands of men’s lacrosse player, George Huguely.

Soon after police seized several items from Huguely’s apartment, the Charlottesville newspaper, the Daily Progress, obtained the search warrant and published information from it.

Shortly after that, a judge ordered the search warrant sealed. No one else could see it.

Then, the order sealing the search warrant was itself sealed.

The Daily Progress and several other news outlets went to court to try to force the circuit court clerk, Paul C. Garrett, to turn over the order-to-seal-the-sealing-order. In late May, Judge Cheryl Higgins said the legal maneuver was the incorrect one procedurally, so on Monday, June 1, the press groups were back in court. Represented by Richmond lawyer Craig Merritt, this time they filed a petition for leave to intervene and a motion to unseal the order.

It is not uncommon for search warrants to be sealed: lawyers on both sides of the case often fear tainting the jury pool and jeopardizing a defendant’s right to a fair trial. But, without access to the order to seal the original order, there is no basis for determining whether the original order itself was properly sealed or not.

The second issue roiling The Grounds involves global warming, and, more specifically the question of whether the science underlying global warming science may be dubious.

Suspecting that it is, Attorney General Ken Cuccinelli issued a civil investigative demand asking for more than 11 years of research records of former professor Michael Mann. Cuccinelli says that if Mann doctored his research, he may have perpetrated a fraud on people of Virginia, who funded five of Mann’s research grants.

Citing fear of chilling academic freedom, the university said on May 27 that it would fight the order in court. Cuccinelli’s office indicated it would respond to the school’s arguments in court.

The context of the research records is different from the open-records context: the AG has powers and authority that no citizen would ever pretend to have. But the request did prompt many to question the accessibility of research records under the Virginia Freedom of Information Act.

There’s no clear cut answer, but some points must be kept in mind:

(1) professors at public universities are public employees;

(2) as public employees, the records they generate are potentially public records;

(3) public records are only “public records” if they also involve the public’s business;

(4) professorial research is not typically considered the public business;

(5) some academic research is  conducted under contract with private companies; and

(6) there’s a discretionary FOIA exemption that could cover research .

There’s probably at least a (7), (8) and (9), and maybe more, when considering the so-called one-day rule of college professors at public universities, copyright and privately endowed professorship chairs, but the bottom line is that as potential public records, it’s still up to the university (via the professor often) to say exactly why the records are exempt under FOIA or prohibited from release by other statute.

Neither case is close to over, and there may be more open-government twists and turns along the way. Stay tuned to the UVA Channel.