Energy & Environment Legal Institute v. Arizona Board of Regents

On August 29, 2018, the Arizona Supreme Court denied motions by the Arizona Board of Regents for stays of the release of emails of two climate scientists in response to a 2011 public records law request by the Energy & Environment Legal Institute (then known as the American Tradition Institute). The court also declined to accept jurisdiction of the Board of Regents’ Petition for Special Action.

The Arizona Court of Appeals reversed a trial court ruling that required that the University of Arizona produce emails of two climate scientists. The documents at issue were characterized as “prepublication critical analysis, unpublished data, analysis, research, results, drafts, and commentary.” The trial court issued its ruling on remand from an earlier appellate decision finding that the trial court should have conducted a de novo review of the university’s justification for withholding the documents. In its latest decision, the appellate court said that the trial court’s decision on remand did not refer to a section of the public records law providing for an exemption for “records of a university” and that the trial court seemed unaware of the existence of the academic privilege. The appellate court also said the trial court had not explained why the documents at issue did not fall within other exceptions to the public records law for unpublished research data, drafts of scientific papers, and information developed by university employees for which disclosure would be contrary to the best interests of the state. The appellate court remanded for further proceedings.

The Arizona Court of Appeals ruled that a trial court had applied an incorrect standard to its review of a decision by the Arizona Board of Regents to deny requests for records of climate scientists at the University of Arizona. The appellate court said that the Superior Court should have reviewed de novo the Board’s justification for withholding emails addressing “prepublication critical analysis, unpublished data, analysis, research, results, drafts and commentary,” rather than determining whether the Board had abused its discretion or acted arbitrarily or capriciously. The appellate court remanded to the Superior Court, saying that it should weigh the Board’s determination that disclosure would be detrimental to the best interests of the state against the presumption favoring disclosure. The appellate court affirmed the Superior Court’s decision with respect to the Board’s withholding of emails that contained confidential information or attorney work product.

The Arizona Superior Court denied the Arizona Board of Regents’ motion for a new trial and request for further proceedings and findings in accordance with mandate in Energy & Environment Legal Institute’s lawsuit seeking to compel disclosure of the emails of two climate scientists at the University of Arizona. The court ordered the Board of Regents to produce all requested records within 90 days.

On remand from the Arizona Court of Appeals, the Arizona Superior Court again granted a motion to require disclosure under the state public records law of emails of two climate scientists at the University of Arizona. The Superior Court indicated that the Court of Appeals had mistakenly concluded that the Superior Court had not considered an exemption from the public records law for certain university records in its earlier decision requiring the disclosure. The exemption at issue applies to “unpublished research data, manuscripts, preliminary analyses, drafts of scientific papers, plans for future research and prepublication peer reviews.” In its ruling on remand, the Superior Court made explicit findings (1) that to the extent the scientists’ emails fell within this exemption’s scope, the exemption was inapplicable because “the subject matter of the documents has become available to the general public,” (2) that the subject matter of any emails that did not fall within the scope of the exemption also had become available to the general public, and (3) that disclosure of the emails would not be contrary to the best interests of the State. The Climate Science Legal Defense Fund, which filed an amicus brief in the appellate court in support of the scientists, today released a 50-state report on research protections in open records law. You can review the report <a href="https://www.csldf.org/resources/50-state-report/">here</a>.

The Arizona Board of Regents filed a notice of appeal a month after the Arizona Superior Court filed a judgment ordering production of previously withheld emails of two University of Arizona climate scientists pursuant to the State’s public records law. The Superior Court’s judgment was based on a June 2016 “Under Advisement Ruling” in which the court concluded that the potential chilling effect of disclosure did not overcome the presumption favoring disclosure.