Rockefellers’ “Climate Superfund” push using academics gets a break from scrutiny
(cross-posted from Climate Litigation Watch)
In GAO v. Regents of the University of Michigan, the court has ruled that a law professor’s public “expert testimony” and other advocacy, performed expressly and repeatedly in her capacity as an expert University of Michigan Law School professor, wasn’t really being performed as a University of Michigan law professor. This despite that the professor also taught classes on the same subject (“climate superfund” laws). Apparently, everyone now agrees the professor was actually acting on behalf of the Rockefeller Family Fund when wielding her academic title as an expert professor on the topic.
This newfound view that the professor’s work was private came despite the professor’s long record of vocally insisting otherwise by prominent use of her academic position to credential her argument, a view promoted and publicized with at least as much effort by the University. That suddenly changed when Michigan’s FOIA was invoked to see the record of how this public institution was being used for what, other records had already revealed, was a Rockefeller Family production.
Yesterday’s Michigan Court of Claims decision runs counter to a recent Court of Appeals conclusion that took a much broader view of when an employee is working on behalf of their public employer, holding that an official function includes “those authorized acts or operations that are expected” of the employee.
The top line conclusions of this opinion are that:
- The UM is clearly a public body to which FOIA applies (media hardest hit);
- Prof. Rothschild is not herself a public body as the “employee” language is restricted to the executive branch of state government;
- On whether the documents at issue were “public records” of a “public body” that turns on the relationship between the documents and Prof. Rothschild’s “official functions” (this makes the definition of what is an official function of utter importance, and on that count the court chose a different, much more narrow path than a Michigan Court of Appeals did earlier this year, while the court was writing its own opinion);
- “Some affirmative conduct on the part of the public body is required as ‘the mere possession of a record by a public body does not render the record a public document.’”
- “[T]he personal nature of the documents in question” is not dispositive (well-established since at least when the media pursued Mitt Romney’s non-.gov emails and a court agreed, if only a fashionable view among media depending on whose seemingly or arguably work-related correspondence we’re talking about…);
- The Court disagreed with GAO’s view that the documents were used by Prof. Rothschild in her public function as: (a) her Vaughn index reflected that “all responsive documents were communications with RFF or with NYU”; (b) “even assuming the emails related in some way to the [RFF-requested “climate superfund”] memorandum, GAO presented no evidence connecting the email communications to Prof. Rothschild’s required job duties or other authorized acts or operations of the University”; (c) the “indirect benefit[s]” between her work at NYU/RFF and her professorship “is not an official function”; (d) her pro bono work and legislative testimony “is not part of the professor’s job duties, and is considered by the University only to the extent that it features into the professor’s ‘total academic complexion’”; and (e) her use of her official title was not dispositive/indicative of a relationship to her official duties.
In short, it seems like that Court flipped the FOIA burden onto GAO rather than the other way around as the statute has it, and missed the point of an opinion in the landmark case Evening News Ass’n v City of Troy (1983) about the government’s burden of specificity given the requester does not have access to the records themselves.
However, note that per the November 5, 2025 discovery order in the case, after an in camera review of Prof. Rothschild’s annual reports, the court found that the University treated information about her outside activities as relevant to her faculty position. It also found that Rothschild treated the same information as relevant to her academic career. Government Accountability & Oversight v Regents of the University of Michigan, Court of Claims No. 24-000060-MZ, slip op at 2-3 (Nov. 5, 2025). Those findings do not resolve the status of each email (which the court did not review (!)). Were they those authorized acts or operations that are expected” of the employee as the Appeals Court recently ruled? There’s yer trouble.
Yesterday’s opinion instead narrowed “official function” to mandatory, formal job duties, emphasizing that the professor’s claim of pro bono work for an activist foundation (RFF) and its beneficiary groups was not “mandatory” or “required as part of” institutional service. Again, while that is not the view the Court of Appeals recently took it also sets aside the substantial record evidence that the University authorized, monitored, promoted, and drew institutional value from Professor Rachel Rothschild’s “climate superfund” work. That same evidence—which the court previously acknowledged—is irreconcilable with its final opinion which repeatedly claimed that GAO provided “no evidence” connecting the emails to Rothschild’s “required job duties.”
As an aside, per this opinion Michigan law now says all this pro bono work has no impact on hiring and tenure except maybe as part of academic “complexion” … which is particularly odd given that annual reviews everywhere request details of such activities, for just this purpose. This novel assertion defeats what all of academia has said in the past. What will they now say? CLW suspects that position, like the media’s view on open records laws, will be ad hoc and of convenience.
GAO is considering its options on appeal given the well-respected judge’s nonetheless erroneous mandatory-duty gloss on “official function,” shifting the University’s statutory burden to the requester, and its failure to inspect the communications.