Energy & Environment Legal Institute v. Arizona Board of Regents

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 The exemption at issue applies to “unpublished research data, manuscripts, preliminary analyses, drafts of scientific papers, plans for future research and prepublication peer reviews.”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.

The Arizona Superior Court ordered the Arizona Board of Regents to produce previously withheld emails of two University of Arizona climate scientists pursuant to the State’s public records law. The Board had asserted that it was entitled to withhold the emails from its response to a public records request from the Energy & Environment Legal Institute because the emails were prepublication critical analysis, unpublished data, analysis, research, results, drafts, and commentary. The court issued its ruling on remand from an appellate court decision that said the court had applied a too-deferential standard in an earlier review of the Board’s determinations to withhold the emails. In the new ruling, the court said it was cognizant of the concerns regarding the “chilling effect” disclosure could have, but it concluded that the potential harm was “speculative at best” and did not overcome the presumption favoring disclosure. The court indicated that the establishment of an “academic privilege exception” to the public records law was an issue for the legislature, not the courts. A blog about this decision appears <a href="http://blogs.law.columbia.edu/climatechange/2016/06/22/az-court-reverses-protection-for-climate-scientists/">here</a>.

The Arizona Superior Court in Pima County ruled that the Arizona Board of Regents did not act arbitrarily and capriciously when it denied access to more than 1,700 emails of two University of Arizona climate scientists. The emails were among documents requested by the Energy & Environmental Legal Institute pursuant to Arizona’s public records law. Based on a representative set of 90 emails, the court concluded that the Board of Regents did not act arbitrarily or capriciously or abuse its discretion when it withheld emails concerning prepublication critical analysis, unpublished data, analysis, research, results, drafts, and commentary on the ground that production of these emails “would have a chilling effect on the ability and likelihood of professors and scientists engaging in frank exchanges of ideas and information.” The court noted that the Board of Regents had provided “compelling” support of this position through the affidavits of scholars, academic administrators, and professors.