Did #ExxonKnew academics “lawyer up” over public records requests? - Climate Litigation Watch

Did #ExxonKnew academics “lawyer up” over public records requests?

As Climate Litigation Watch noted earlier this week, a Friday 4/19/19 document production from UCLA sheds further light on that public institution’s law school and its role in the Climate Litigation Industry. Among the documents released Public Records Act litigation are emails suggesting that Profs. Ann Carlson and Cara Horowitz sought legal counsel on avoiding release of emails relating to their role in what one academic called the “secret meeting at Harvard”.

Thanks to this recent release, after a by now typical stonewall, we know that that remarkable event was for state attorneys general staff and “prospective funders” (presumably, from context, prospective Climate Litigation Industry funders).

In a March 7, 2018 email to UCLA’s information technology staff, Prof. Horowitz wrote, inter alia,

“Ann and I would like to discuss this request with counsel in our office. Would that be possible? Perhaps sometime early next week?.” 

This was in a “reply all” response to a March 1, 2018 Information Practices (apparently the IT department) notification of that request, which had copied the Office’s Manager Robert Baldridge and assistant manager Ayse Donmez. It is not clear what sort of counsel the faculty wanted to participate, though numerous other records indicate that consultation did occur.

Later, on March 29, 2018, Prof. Horowitz wrote to IP about the Harvard event emails, inter alia,

“I believe that some of these emails, or some portions of these emails, should not be disclosed under the PRA because disclosure may not serve the public interest. Please let’s discuss next week.” (emphasis added) On April 3, 2018, IT responded, in part, “we can touch base about the concerns you note below”.

Prof. Carlson apparently shared her colleagues’ desire to withhold some of these pubic records. On January 18, 2019, IP’s principal point of contact, Marisa Hawkins, wrote again to Carlson:

“I am in the process of reviewing the documents you produced in response to the first CEI request, and I have a couple of questions regarding one of the email chains you had flagged as a possible concern. Would you have time for a quick call on Tuesday to discuss it?”. 

Regarding the professors’ instincts to withhold public information, including specifically because in their view “disclosure may not serve the public interest,” Cal. Gov’t Code § 6255(a) is clear on the actual balancing test:

“The agency shall justify withholding any record by demonstrating that the record in question is exempt under express provisions of this chapter or that on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.”  (emphasis added)

That is, as CLW previously noted, to withhold public records relating to its role in the Climate Litigation Industry UCLA must demonstrate to the court’s satisfaction not just that the public has an interest in keeping those records free from public scrutiny, but that the public’s interest in withholding them from…the public…is greater than the public’s interest in transparency.

As the California Office of Attorney General writes,

A particular agency’s interest in nondisclosure is of little consequence in performing this balancing test; it is the public’s interest, not the agency’s that is weighed.” (emphasis in the original)

Obviously, personal or confidential information is properly withheld. Prof. Horowitz does not seem to be referencing any exemption. Instead she suggests withholding on the basis of that balancing of the public’s interest.

It is worth noting that Transparent California lists “academic administrator” Ms. Horowitz as earning $197,778 from this public school in 2017 (Horowitz’s email tag is “Andrew Sabin Family Foundation Co-Executive Director, Emmett Institute on Climate Change and the Environment”).

The same site lists Prof. Carlson’s compensation at $502,001 for 2017 — climbing annually between $12k and $60k since 2013, when the records begin. That’s exclusive of any, e.g., consulting income, and comes in a hair behind UC System Chancellor Gene Block’s $521,464 during the same year (his annual raises clock in at $15k per year).

Were that the sole reason for disclosing how this institution came to be used in this way — and given the disruptive pursuits of the Climate Litigation Industry, it is hardly that — the public is very heavily invested in seeing how its resources are being used. It is difficult to imagine what public interest in withholding these records outweighs that.

The public records production: (PDF)

Carlson and Horowitz concerned that release of Harvard docs not in public interest