Schnare vs UVA - The Impossible Request

The impossible request:




January 6, 2011

Dear Rector Wynne:

We the undersigned citizens and residents of the Commonwealth of Virginia, in coordination with the Environmental Law Center of the American Tradition Institute, ...

Subject Matter

We seek materials that Dr. Michael Mann produced and/or received while working for the University of Virginia and otherwise while using its facilities and resources, as specifically enumerated in the Attachment. We seek these records from a backup server identified already by the University as part of a related search, as detailed, below.

15. The scope of this request is to reach any and all data, documents and things in your possession, including those stored or residing on any of the specified or referenced (see FN 1, supra) computers, hard drives, desktops, laptops, file servers, database servers, email servers or other systems where data was transmitted or stored on purpose or as a result of transient use of a system or application in the course of day to day research or product processing work that is owned or contracted for by you or any of your officers, managers, employees, agents, board members, academic departments, divisions, programs, IT department, contractors and other representatives.

2. As used herein, the words "record", "records", "document" or "documents" mean the original and any copies of any written, printed, typed, electronic, or graphic matter of any kind or nature, however produced or reproduced, any book, pamphlet, brochure, periodical, newspaper, letter, correspondence, memoranda, notice, facsimile, e-mail, manual, press release, telegram, report, study, handwritten note, working paper, chart, paper, graph, index, tape, data sheet, data processing card, or any other written, recorded, transcribed, punched, taped, filmed or graphic matter now in your possession, custody or control.

...

1. All documents that constitute or are in any way related to correspondence, messages or e-mails sent by Dr. Michael Mann to, or received from, any of the following persons:
(a) Dr. Caspar Ammann,
(b) Dr. Raymond Bradley,
(c) Dr. Keith Briffa,
(d) Dr. John Christy,
(e) Dr. Edward Cook,
(f) Dr. Thomas Crowley,
(g) Dr. Roseanne D' Arrigo,
(h) Dr. Valerie Masson-Delmotte,
(i) Dr. David Douglass,
(j) Dr. Jan Esper,
(k) Dr. Melissa Free,
(l) Dr. Chris de Freitas,
(m) Dr. Vincent Grey,
(n) Dr. James Hack,
(o) Dr. Malcolm Hughes,
(p) Dr. Eystein Jansen,
(q) Dr. Phil Jones,
(r) Dr. Thomas Karl,
(s) Dr. Otto Kinne,
(t) Dr. A. T.J. de Laat,
(u) Dr. Murari Lal,
(v) Dr. Stephen Mackwell,
(w) Dr. Glenn McGregor,
(x) Stephen McIntyre,
(y) Dr. Ross McKitrick,
(z) Dr. Patrick Michaels,
(aa) Dr. Jonathan Overpeck,
(bb) Dr. Tim Osborn,
(cc) Dr. Roger Pielke, Jr.,
(dd) Dr. Benjamin Santer,
(ee) Dr. Gavin A. Schmidt,
ff) Dr. Stephen Schneider,
(gg) Dr. Olga Solomina,
(hh) Dr. Susan Solomon,
(ii) Dr. Kevin Trenberth,
(jj) Dr. Eugene Wahl,
(kk) Dr. Edward Wegman,
(ll) Dr. Thomas Wigley,
(mm) Dr. Vincent Gray, and
(nn) All research assistants, secretaries or administrative staff with whom Dr. Mann worked while he was at the University of Virginia.

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Response to the impossible request:
January 25, 2011
Mr. Christopher C. Horner
Dr. David W. Schnare
Del. Bob Marshall
Environmental Law Center at the American Tradition Institute
...
Dear Mr. Horner, Dr. Schnare and Del. Marshall:
I write in response to your request, dated January 6, 2011, under the Virginia Freedom of Information Act (FOIA) for records relating to Dr. Michael Mann and others. The University previously informed you that it was taking the extension allowed by FOIA in which to respond to
your request.
After careful review, we have determined that your request does not comply with FOIA’s requirement to “identify the requested records with reasonable specificity.” Va. Code §2.2- 3704(B). The opening pages of your letter appear to direct the University to a specifically identified back-up server believed to contain certain e-mail relating to Dr. Mann. See Horner Ltr. at 1-2. Indeed, your letter appears to suggest that the fees associated with your request should be minimal because of the narrow target of your request. The Attachment to your letter, however, appears to request that the University conduct a broad search for documents encompassing more than a twelve-year period (Attach. Instr. ¶ 1); stored at any location (Attach. Instr. ¶ 14); and within a scope you describe as follows ...
As you likely know, the University of Virginia is made up of 11 schools in Charlottesville, and the College at Wise in southwest Virginia. It offers 51 bachelor's degrees in 47 fields, 84 master's degrees in 67 fields, six educational specialist degrees, two first-professional degrees
(law and medicine), and 57 doctoral degrees in 55 fields. The University currently has more than 14,000 employees and has had tens of thousands more “employees, agents . . . contractors and other representatives” during the past 12-year time period.
...

In response to your request for an estimate of costs, we believe it will cost at least $8,500 to process your FOIA request. We would request this minimum payment in advance of commencing our review of the requested records. There is no way for the University to predict the volume of records that are, in fact, responsive to your request and that are not protected from disclosure. Under FOIA, you will be responsible for the actual cost of producing the requested records, even if that cost exceeds the above estimate and the payment of your deposit.
...

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February 7, 2011



Dear Mr. Schnare:

I am responding to your January 31 letter, pursuant to the Virginia Freedom of Information Act, to the Rector of the University of Virginia. That letter was in response to our January 25 letter seeking clarification of your Freedom of Information Act request of January 6, 2011.

These issues undoubtedly are familiar to you. They are substantially the same issues we discussed with you in response to your FOIA requests for similar records on behalf of the Competitive Enterprise Institute in May and June 2010. They also are substantially similar to the issues we discussed with your colleague, Delegate Marshall, in response to his FOIA request for similar records in October 2010. Indeed, you will note that the estimate of costs above is identical to the estimate we supplied to Delegate Marshall in October 2010 for searching the same records. In response to our prior cost estimates to both you and Delegate Marshall, we received no further communication or payment of the costs indicating a desire for the University

to proceed with those requests.

=================

After a phone call:

From: David Schnare [mailto:vvvvv@wwwww.com] Sent: Friday, February 11, 2011 11:51 AM To: Wilkerson, Elizabeth (epw3m) Cc: Chris.Horner@zzzzzz; DelegateBobMarshall@bbbbbbbbb

Subject: Follow up to Phonecon regarding VFOIA for records relating to Michael Mann
....

During our discussion I made the following points:

1. Having extensive experience in document production, we don't believe you will need to expend 340 hours to obtain, process and send us the documents on your server. Nevertheless, we will remit $8,500 and will seek return of unspent funds upon completion of the production.

The next UVA
From: Wilkerson, Elizabeth (epw3m) Sent: Monday, February 14, 2011 12:50 PM To: DWSchnare@gmail.com Subject: Your request to the University of Virginia -- Michael Mann

Dear Dr. Schnare:

Thank you for your e-mail of Thursday, Feb. 10. I write to confirm our telephone conversation and to provide some answers to your questions.

We will begin review of the materials on the server within a week after receiving your check for $8,500. Please make the check to Rector and Visitors, University of Virginia, and send it to Penney Catlett in the Office of Public Affairs at the address in the signature line below.
==============

A "lets scare them" document

The Law Center of the American Tradition Institute
...
February 15, 2011
VIA EMAIL
The Rector and Visitors of the University of Virginia
...

Dear Ms. Wilkerson:
...
As of this date, some 40 days after the initial request, the University affirms having identified the specific server upon which the documents we seek are stored. The department head of the unit using the server is on record with the media stating it would take no effort at all to produce the documents.

The University still, however, does not agree to initiate the required search and production until we provide a check for $8,500. Even in that instance, however, the University further refuses to offer or agree to a schedule upon which it will produce the records, instead indicating that it will only “begin” to access the documents with “a week” after receipt of the demanded fee, which on its face serves as a barrier to access and disclosure. Beyond that request for substantial, unsupported payment for an open-ended response with no schedule for production, the University offers us nothing more than that it would take over two months to

“review” those records if worked on full time, which the University also makes plain will not be the case. Further, the University refuses to commit to producing the records on a rolling basis, as we have requested.

At this point in the negotiations, and in light of the University's refusal to accede to any proposal we have made, we make a final request, after which we will be forced to seek judicial relief.

We would never seek to instruct you on the law, but bring to your attention Section 2.2-3704 of the Virginia Freedom of Information Act, which states:

A public body may make reasonable charges not to exceed its actual cost incurred in accessing, duplicating, supplying, or searching for the requested records. No public body shall impose any extraneous, intermediary or surplus fees or expenses to recoup the general costs associated with creating or maintaining records or transacting the general business of the public body. (emphasis added)

In particular, we note the statute does not grant any reimbursement for the cost of reviewing or redacting the records.1

Regardless, the University demands charges that reflect “review of e-mails, and other documents on the server” and “review [of] them individually to determine whether they might be exempt from disclosure under state or federal law”. Elsewhere, you reaffirm that charges for these activities serve as the basis for much or most of your otherwise unsupported fee demand.

These activities are not reimbursable under the VFOIA, even though you admit they constitute the bulk of the fee you demand. As such, that demand is facially unreasonable and in contravention of the University's obligations under VFOIA.

We also note your express intention to provide Mr. Mann copies of the records that are being released under our request. Your decision to do so suggests that he is on an equal footing to we who seek these documents under the VFOIA, possibly because of some ownership of the records you ascribe to him. We would appreciate clarification of this but, regardless, as such, we expect that you will demand of him an equal fee for the records requested, and will assess us no more than half the actual cost of accessing, duplicating, supply and searching for the emails and related documents.



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February 17, 2011

David W. Schnare, Esq.

The Law Center of the American Tradition Institute

RE: Your Freedom of Information Act Request

Dear Mr. Schnare:

This will respond to your letter of February 15, 2011, to The Rector and Visitors of the University, John O. Wynne, Rector, and Elizabeth Wilkerson of our Office of Public Affairs. Before I bring you up to date on the University’s response to your Freedom of Information Act (“Act”) request, allow me to correct a number of mistakes and inaccuracies in your letter.

First, your second paragraph infers that the University delayed in notifying you of the “specific server upon which the documents [you] seek are stored.” This inference is incorrect. As you may recall, the University sought to have you state whether your request was University-wide, an enormously broad and unrealistic request that we informed you did not meet the specificity requirements of the Act, or whether it was limited to the server. The fact of the existence of the server had long been known and was disclosed to you early on. I’m not sure when the “department head” is supposed to have said that it “would take no effort at all to produce the documents,” but the only context in which this statement would make sense would be in the period prior to the server’s being discovered when it was thought we likely had little or no responsive information to a request for Professor Mann’s materials.

There has been a pervasive tendency in your correspondence to mischaracterize as a refusal or denial every instance in which the University does not reject one of your requests and informs you that it is considering it and taking time to determine its feasibility. The alleged refusals in the second paragraph of your letter are illustrative of this. The University has stated that we will not commence the actual review and production of responsive documents until we receive a payment. The other inferences in this paragraph are incorrect. We have not refused to produce a “production schedule”; we have stated that a realistic one cannot be considered until the process of review and production commences. Moreover, we have not refused to produce responsive documents on a rolling basis; rather we have simply not yet addressed whether that would be feasible.

Needless to say, the first paragraph of the second page of your letter, which states that the University has refused “to accede to any proposal we have made,” is simply untrue.

In response to your interpretation of Va. Code § 2.2-3704, implicit in the “supplying” of requested records is the necessary review to assure that documents or portions of documents that cannot be disclosed because of the requirements of other state or federal laws is done,1 and that available exemptions are considered. Any other interpretation would make no sense in the overall context of the Act. I would also note that your interpretation of the narrowness § 2.2-3704 is not shared by the Virginia Freedom of Information Act Advisory Council.

Your request that we would charge Professor Mann for copies of documents you have requested pursuant to the Act has no basis in the Act itself. Professor Mann has not requested any records pursuant to the Act; you have. Nonetheless, we have made no decision about under what circumstances we would furnish copies of responsive documents to Professor Mann or whether we would offer to make these documents available for a reasonable copying fee. It may interest you to know that we extended the same courtesies to Patrick Michaels when his documents were requested as we have with Michael Mann.

Neither has the University made any decision to hire an outside firm to assist in responding to your request. Rather, we have told you that this is something we are considering.

I am also puzzled as to why you would think that we “have no idea of the number of documents” potentially responsive to your request. We have repeatedly told you that our estimate of the cost for responding and supplying those documents is based upon the volume of material on the server.

Finally, it strikes me that many of your requests and demands are more consistent with requests for production of documents under the applicable discovery rules in litigation than they are in responding to a request for public records under the Act, but that is another issue (and not an uncommon one, I might add, when lawyers get involved in requests pursuant to the Act).

Having made all of the above clarifications, I have conferred with those here who have been dealing with your request and can offer the following to meet some of your objections and complaints about the University’s response:

•

We are willing to commence work with your submission of the check in the amount of $2,000, as requested, with the corollary understanding that this would be sufficient to allow for 80 hours of accessing, duplicating, supplying, and searching for documents responsive to your request. Once this work is concluded, we can see what additional potentially responsive material may still exist.

•

We can agree to a rolling disclosure of responsive, non-exempt documents during the 80 hours of accessing, duplicating, supplying, and searching for documents responsive to your request.

Please let me know if this is acceptable. If so, we will commence work after receiving your check in the amount of $2,000 consistent with the understanding stated in the letter.



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March 28, 2011

David W. Schnare, Esq.

The Law Center of the American Tradition Institute

...

RE: Your Freedom of Information Act Request

Dear Dr. Schnare:

I write to give you an update on the status of your Freedom of Information Act request and to seek further clarification from you as to how you wish to proceed.

As I noted would be the case in my letter to you of March 9, 2011, we commenced our review by limiting our initial search to messages sent by Michael Mann to, or received from, the persons identified on page 7 of your request and to the additional requested information on pages 10 and 11 of your request. Specifically, we have limited our initial search to paragraph 1(a) through 1(mm) on page 7 of your request, and to information requested in paragraphs 4 through 10 of that request. At this point we have segregated all potentially responsive documents from the 34,062 documents contained on the server. We have not yet begun review of those segregated documents to identify information that is truly responsive, exempt from disclosure, or confidential pursuant to other provisions of law. To date, the law students working on the project have worked a total of 40 hours, or half of the time covered by your initial payment of $2,000.

We will next proceed to conduct the review of the potentially responsive documents. I cannot estimate at this time how long that will take.

Regarding the other aspects of your request, I would note the following:

•

The information requested in paragraph 1(nn) of your request would involve a minimum of 200 additional people and would greatly expand the time needed for review and the potential cost of responding to your request. Because I would think that much of what would be discovered in the process of conducting the additional review called for by this subsection of your request would be redundant or trivial, I would urge you to withdraw this aspect of your request.

•

As noted in my letter to you of March 9, the different iterations of your request on pages 8 and 9 of that request appear redundant or overly general to allow for a focused response. Because of this, I would urge you to withdraw those aspects of your request as well.

We will proceed with review of the segregated potentially responsive documents until that task is either complete, or the remainder of your initial payment is exhausted



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April 6, 2011

David W. Schnare, Esq.

The Law Center of the American Tradition Institute

2020 Pennsylvania Avenue, N.W. # 186

Washington, D.C. 20006

RE: Your Freedom of Information Act Request

Dear Dr. Schnare:

I am writing to follow up on your Freedom of Information Act request of January 6, 2011, for a wide array of records and documents concerning former University of Virginia faculty member Michael Mann. As I previously informed you, the University has identified 34,062 potentially responsive documents on the server we have previously agreed to be the sole repository of any possibly responsive material. We have now segregated from that mass of documents approximately 8,000 that are potentially responsive to your request and have been reviewing these documents for possible disclosure. As of today we have exhausted in this effort the initial payment you have made. Consequently, we will undertake no further review unless you wish to pay another installment on our original estimate of $8,500 (or wish to pay the remaining amount of that estimate).

To date we have reviewed approximately 1,000 of the roughly 8,000 documents potentially responsive to your request. I anticipate that a first group of responsive, non-exempt documents which may be lawfully disclosed will be released to you shortly.

If you wish continued review pursuant to your request, I would note that we currently have three law students working on the project who are now familiar with this request and efficient in processing it. They will be able to work only the next two weeks, however, because of academic commitments. It would therefore be to your advantage, if you wish to pursue this request further, to send me the further reimbursement of cost by overnight mail.

Finally, I would note that when we last spoke on March 29, you expressed no disagreement with the narrowing of your original request outlined in my letter to you of March 9, 2011.



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David W. Schnare, Esq. Ph.D.

April 7, 2011

BY ELECTRONIC MAIL

Dear Mr. Kast:

Thank you for your April 6, 2011, update on our FOIA request. Per your letter, you indicate that “we will undertake no further review unless you wish to pay another installment on our original estimate of $8,500.” This letter indicates that we wish to and will pay an additional installment, and on that basis ask that you continue your work to produce the responsive documents.

Our Institute has issued a check which I expect to receive today or tomorrow and which I will have delivered to you by an overnight delivery. As such, and, as you indicate, because your law students might otherwise lose valuable time on this effort, we ask that you keep them engaged in reviewing the documents as we transmit the check to you.

With regard to the narrowing of our request, we have not dismissed your proposal, but we wish to see the fruit of the initial delivery of documents before we commit to that narrowing. We look forward to receiving those and to moving to completion on this FOIA request.

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