A trial hearing that had been delayed several times finally took place on January 20, 2022, in Government Accountability & Oversight’s California Public Records Act (PRA) litigation against the Regents of the University of California. The case involves certain records pertaining to UCLA Law School’s donor-enhanced role in staffing and providing spokespersons for the climate litigation industry.
Specifically, at issue is a request seeking correspondence between two faculty and two email addresses associated with a major donor, some of which have already helped shed light on the relationship between public institutions and private interests. That request was prompted by an email to that donor, Dan Emmett, describing a “secret meeting at Harvard” for state attorney general staff, activists and “prospective funders” as being “about going after climate denialism — along with a bunch of state and local prosecutors nationwide.”
The Superior Court for the County of Los Angeles issued its ruling, which sets up two issues for appeal should either party so choose and also gives the University one more chance to meet its burden of describing over six hundred records it is withholding as exempt (in full) or as “not public records.” All of these withheld records are to, from or include the email address of two companies associated with Emmett, the namesake benefactor of UCLA’s Emmett Institute on Climate Change and the Environment and significant funder ($499,999.00) of the (UCLA Law Prof., on leave) “Ann Carlson Discretionary Fund“. That latter account received at least $1.5 million between Emmett and another donor, for the use of Prof. Carlson (presently serving as a political appointee in the Biden Administration) solely as she sees fit.
Carlson was, prior to her recent appointment to advance the climate agenda in the federal government, the New York Times‘s go-to commentator on all things climate, including particularly litigation for which both she and the Emmett Institute served on the plaintiff’s tort lawyer team. Carlson also assisted the climate plaintiff’s firm, Sher Edling, LLP, in what appears to be an effort to recruit other academics to the team of surrogates. In hindsight, the proliferation of commentary by bth Carlson and her co-host for the recruitment webinar, Vermont Law School’s Pat Parenteau, in some news outlets’ coverage does stand out.
Related to this, among all other institutions whose faculty participated in a briefing arranged by Carlson and Parenteau for Sher Edling and its non-lawyer communications director — i.e., a ‘comms’ briefing — it was the University of Texas that denied that it had any records which, other schools proved, do in fact exist. One’s guess is as good as ours as to how that came to be, and/or why. It has happened before and, as GAO has learned, public schools are sensitive to examination by the public of their roles in the climate litigation industry.
The LA Court ruled that Regents had sufficiently satisfied its burden to claim exemption for a small handful of correspondence and attachments claimed to be “pre-publication research.” GAO argued that, particularly given the emails were from a faculty member to her and her Center’s principal financial backer, a commercial real estate developer, they likely “were not between a researcher and a third party source whose assistance in improving the work in progress was being solicited or provided. Rather, as William Happer posits is more plausible in his declaration, the nine Pre-Publication Documents were exchanged ‘to make a major donor feel catered to and privy to advance information””.
In fact, the relevant part of Prof. Carlson’s Declaration presented something of a moving target on that, shifting mid-stream from discussion of such valuable sources to the value of the major donor to fundraising (¶ 14). The one email among these that has been seen by either the Court or GAO, because UCLA let it slip in redacted from in response to another request, shows without doubt that at least some of the supposed exempt, pre-publication research is no such thing.
The Court did not examine the records, but ruled the University had sufficiently described records that would be exempt. Whether this is true on scrutiny might be a question for future deliberations but for the moment the University is permitted to keep them from the public.
The Court did order UCLA to produce records it claimed were protected under FERPA, even though that claim is not available to the University for these materials, as affirmed by US Supreme Court precedent, which was even cited in a California Court of Appeals case litigated by none other than Regents. GAO argued that that claim, tossed in late in the proceedings apparently on realization its other claims to keep certain records from the public would also not make the grade, was one of many signs the University slow-walked and otherwise obstructed GAO’s request. The Court ruled that it is open to further evidence but is not yet persuaded on that.