Raising the bar

The Virginia Supreme Court should provide transcripts of oral arguments

Nine years after he left the University, former environmental science professor Michael Mann’s emails are still a topic of debate in Charlottesville—and Richmond. Last Thursday, for the second time in as many years, lawyers for the University of Virginia found themselves in front of the Virginia Supreme Court arguing about the level of privacy to which academics at state-run institutions are entitled, with Mann at the center of the case.

In 2010, then-Attorney General Ken Cuccinelli attempted to obtain Mann’s private correspondence using the Virginia Fraud Against Taxpayers Act. Cuccinelli, a climate change skeptic, sought grant applications prepared by Mann, a climate scientist who worked at the University between 1999 and 2005 (he now works at Penn State). Cuccinelli also demanded the release of emails between Mann and his research assistants.

The dispute made its way to the Virginia Supreme Court, which ruled in March 2012 that Cuccinelli did not have the authority to demand Mann’s records.

This year, the two attorneys representing the University faced off against a group called the American Tradition Institute, which filed a Freedom of Information Act request in 2011 seeking the release of many of the same documents Cuccinelli had demanded. A circuit court ruled last year that Mann’s email correspondence was exempt from FOIA. The case went to Richmond after the American Tradition Institute appealed.

This year’s case seems like an instance of déjà vu: the same animus toward Mann, the same drive to discredit him by foraging through his research-related emails. The two cases, however, have something else in common: journalists, observers and friends of the University who wanted to hear the oral arguments had to go to Richmond in order to do so. This is because the Virginia Supreme Court does not provide audio recordings, video recordings or transcripts of oral arguments. Mann’s right to privacy is what’s at stake in these two cases; we wonder, however, if the privacy of the state supreme court is a more pressing issue for citizens.

The U.S. Supreme Court has faced criticism for its abiding refusal to permit video coverage of court proceedings. But at least the country’s highest judicial body provides both audio recordings and transcripts of arguments.

By contrast, members of the public interested in the Virginia Supreme Court proceedings have to either trek to Richmond or hope a news outlet will give a case its due coverage.

The state supreme court installed audio recording technology in 2008, but the microphones were too sensitive and picked up private mumblings between the justices, prompting the devices to be removed, a court official told the Alexandria Gazette last summer.

Bad technology, however, is no excuse for keeping these public proceedings shuttered. We suggest getting more appropriate microphones (or having justices turn their microphones off when delivering pithy, private asides) or, alternatively, hiring a stenographer.

The release of transcripts and audio recordings would be good for journalists, law students and scholars, historians and engaged citizens. The Virginia Supreme Court’s decisions have ramifications for all Virginians, and citizens across the commonwealth have a right to know about arguments and judgments that affect their lives, families and businesses. The court should honor its public obligation by documenting its proceedings and making those documents accessible.

Published January 16, 2014 in Opinion

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