r- VIRGINIA: i IN THE CIRCUIT COURT OF PRINCE WILLIAM COHIHQDY, 3 7 THE AMERICAN TRADITION "gf INSTITUTE, and HON. DELEGATE ROBERT MARSHALL, Petitioners, v. Civil Action No. CL-11-3236 THE RECTOR AND VISITORS OF THE UNIVERSITY OF VIRGINIA, Respondent. CITY OF CHARLOTTESVILLE I I COMMONWEALTH OF VIRGINIA AFFIDAVIT OF RICHARD C. KAST On this day, Richard C. Kast personally appeared before me, a certified Notary Public in and for the Commonwealth of Virginia, and after first being duly sworn to tell the truth, testified as follows: l. My name is Richard C. Kast. As I have previously represented to this Court in an affidavit tiled in this matter on May 23, 2011, I have been licensed to practice law in the Commonwealth of Virginia since 1973. I have practiced in the field of higher education since 1985. I have been Associate General Counsel at the University of Virginia ("University") since January l996. 2. Following the entry by this Court of the protective order on May 24, 2011, I became concerned that press releases and media coverage were rnisrepresenting the effect of that order in disturbing ways and that these distortions and inaccuracies might indicate that David Schnare and Christopher Horner did not understand their responsibilities pursuant to the order. 3. Immediately following the entry of the protective order, Petitioner Horner himself, in conjunction with Paul Chesser, issued a press release on behalf of The American Tradition Institute stating that "the University was hauled into court" and required to produce the documents sought by ATI "so that ATI can make thern available to all who wish to review" them. The press release further stated that has won the right to look at all of the documents beginning no later than September 21, including those the University refuses to make public." (Exhibit 1.) These representations were obviously antithetical to the spirit, intent, and literal requirements of the protective order and raised concems in my mind that Mr. Horner did not understand or did not plan to abide by the terms of that order. 4. On May 25, 2011, The Washington Times quoted Delegate Robert Marshall, one ofthe Petitioners in this lawsuit, as follows: want to look at what they"ve given us and examine what they've withheld and see why it's been withheld." This statement concemed me because Delegate Marshall has no access to the exempt documents pursuant to the protective order. (Exhibit 2.) 5. On May 26, 2011, Petitioners Schnare, Horner and Marshall co-wrote an op-ed piece for The Washington Examiner entitled: "Yes, Virginia, you do have to produce those 'Global Warming' documents." Petitioners wrote that "[t]he university must also allow attorneys David Schnare and Chris Horner to view any [documents] it believes are exempt from release under and noted that although "Schnare and Horner had to promise that they would not disclose the contents of any documents withheld until the court rules on whether UVA's FOIA exemptions are valid they do get to see all of them. That's a major breakthrough." (Exhibit 3.) Again, these statements were irresponsible and inconsistent with a genuine intent of Petitioners Schnare and Horner to abide by the terms of the protective order. 2 6. On May 26, 2011, an article appeared in Commentary entitled "Climate Scientist Ordered to Release Thousands of Documents." That article quoted Petitioner Horner and stated that the University "must allow. . . David Schnare and Chris Homer to view any [documents] it believes are exempt from release under FOIA-with the burden of proof on The article further noted that even if the University were to attempt not to disclose exempt documents, those documents would "still have to be shown to the two attorneys who tiled the public infomation request." (Exhibit 4.) Clearly, this latter statement inferred that there was some significance vis cz vis public disclosure of these documents that was wholly inconsistent with the terms of the protective order. 7. Further disturbing and inaccurate reporting appeared in The Chronicle of Higher Education, which reported on May 25, 2011, that the University had "agreed to tum over a potentially enormous trove of climate-research e-mails and other documents to a conservative group that filed a demand for them under the state's Freedom of Information Act," (Exhibit The Virginian Pfiot, which reported on May 26, 201 l: "Under the terms of a legal agreement, the work papers of a former University of Virginia climate change professor will be provided to an advocacy group that requested them earlier this year under the state open records law," (Exhibit and Inside Higher Ed which reported on May 26, 201 state judge has ordered the University of Virginia to release documents produced by Michael Mann, who formerly taught there, to a conservative foundation requesting them as open records." (Exhibit 7.) 8. The ATI press release and this reporting reflected a pervasive misunderstanding of this Court"s protective order. It troubled me that David Schnare and Christopher Horner either originated or were quoted in most of this disturbingly inaccurate information. It further troubled me that neither had done anything as far as I could determine to correct the record. 3 9. Before I could express my concerns to David Schnare, he sent me an e-mail on May 26, 201 1, stating: "Please let your colleagues know that the noise that has arisen since Tuesday is just noise. I look forward to discussing with you how we can bring our disparate philosophies together into a sensible approach to disclose that which is proper to disclose, without visiting harm onthe academic community." (Exhibit S.) 10. On May 27, 2011, I responded to Dr. Schnare noting that, while the University was used to the hyperbole and error that had pervaded much of the reporting on ATl's Freedom of lnfonnation Act request, some of what he had characterized as "noise" following the hearing in this Cotut had been "particularly disturbing in its implication that the Protective Order did not exist or was of no moment." I asked for a specific reassurance from him and Mr. Homer that they remained fully aware of "the requirements for confidentiality and nondisclosure imposed by [thisl Court." (Exhibit 9.) Dr. Schnare responded to my May 27 e-mail on the same date acknowledging that the "most disturbing reporting suggested that we would use any knowledge we gain to game the system." He fLn'ther noted: "[P]lease reassure your colleagues that I will countenance no abrogation of our duty to the court and to (Exhibit 10.) On June 1, 2011, Dr. Schnare further noted: "Both Mr. Horner and I take our responsibilities to the Court very seriously, but Lmderstand the sensitivities at issue in this highly public matter. To that end, Mr. Horner will send you an email documenting his full tmderstanding of the responsibility he took on when he signed the attachment to the protective order and his continuing commitment to that." (Exhibit ll.) Also on June 1 Mr. Horner furnished the referenced e-mail noting that if the University's general counsel had any concerns about his adherence to the protective order, he should contact him directly. (Exhibit 12.) 4 12. On May 31, 2011, Dr. Schnarc sent me an e-mail in which he noted: am angered and upset at the mostly irrational and surely uncivil discussion going on (especially on influential internet blogs) with regard to the differences between UVA and GMU in handling our recent FOIA requests, and ATI has done little to help in that regard." (Exhibit 13.) While this statement has the right words, the fact is that Mr. Schnare was then and remains a key staff member of ATI, not some innocent bystander. See Sra)Y& Board ofDirecrors, AMERICAN TRADITION INSTITUTE, (last visited Oct. 14, 20 i 1. 13. Not surprisingly, the vast amount of misinformation, distortion, and "irrational and surely uncivil discussion" that followed this Cou.rt's entry of the protective order on May 24, 2011, resulted in a vast outpouring of concern from University faculty, faculty and scientists at other institutions, and professional groups such as the AAUP, the ACLU of Virginia, and the Union of Concerned Scientists. (See representative letters collected at Exhibit 14.) In addition, I myself received communications directly expressing concerns about the University's perceived capitulation to ATI and lack of concern for research integrity and academic freedom. (Exhibit 15.) This groundswell of concern fueled by the pervasive misinformation inthe media about what the University had actually agreed to was understandably of concem to University President Teresa Sullivan who responded to it. (Exhibit 16.) 14. More disturbing than the concerns fueled by misinformation, however, were the concerns that remained in the minds of those who perfectly well understood the requirements for confidentiality imposed by the protective order, but nonetheless did not believe that Petitioners Schnare and Horner could be trusted to abide by those requirements. These concerns derived not just from the very public zeal of ATI to discredit Michae! Mann (see Exhibit 17 where Dr. 5 Mann's image is used on the ATI website and described as "discredited" and seeking to keep his University records "hidden iiom the taxpayer"), but also from the fact that, unlike most situations in which attorneys are granted access to confidential information pursuant to a protective order, Dr. Schnare and Mr. Horner were not just counsel forthe Petitioners in this case, they were two-thirds of Petitioners in this case. 15. On August 31, 2011, to respond to that had been raised about the possibility of someone seeking access to the documents that were to be shared with Dr. Schnare and Mr. Horner pursuant to the protective order through the issuance ofa civil investigative demand, subpoena, or other such demand, I wrote to Dr. Schnare seeking his and Mr. Horner's assurances that they agreed that such attempts could not be successful under the temts of the protective order. (Exhibit 18.) 16. On September 2, 2011, Dr. Schnare wrote to me to assure me that he and Mr. Horner understood the protective order as I did: ie., it would not allow for their release of documents disclosed to them by the University pursuant to its terms to be further disclosed to third parties in response to a civil investigative demand, subpoena, or other demand. (Exhibit 19.) 17. Because of the numerous and recurrent concerns that had been raised about the protective order, as detailed above, my colleague and co-counsel in this matter, Madelyn Wessel, sent a letter dated September 20, 2011 (the letter was actually transmitted electronically on September 21) to Dr. Schnare proposing an alternative mechanism for review and inviting Dr. Schnare's comments. (Exhibit 20.) 18. On September 29, 2011, having heard no response from Dr. Schnare. Ms. Wessel inquired when he might be available to discuss the proposal made in her September 20 letter. 6 Dr. Schnare responded that he had been in the midst of "a particularly upsetting family crisis" and further stated: "Among other things, tomorrow is my last day as an employee of the U.S. EPA, and I've had to close out a large caseload as well as deal with all manner of federal records matters." (Exhibit 21.) 19. Dr. Schnare's statement of his continuing employment status with the EPA through September 30, 2011, came as a complete surprise to me because on May 24, 201 l, prior to my appearance in this Court that resulted in the entry of the protective order, Dr. Schnare had told me that he had worked for the EPA but now was doing public interest law and handling such matters as the FOIA request currently before this Court. 20. On September 29, 2011, I communicated my surprise and concern about Dr. Schnare's apparent misrepresentation to him, noting: must say that I am surprised and frankly disturbed by your revelation that you are just now leaving the EPA. You told me when we tirst met before the initial court appearance in Prince William County Circuit Court on May 24th that you had formerly been with the EPA and were then, and had been for a while, a private, public- interest lawyer." (Exhibit 22.) 21. Dr. Schnare responded: have had authority from the agency to do pro bono public interest law for over 5 years now. That is what I represented to you." He further noted that he never mentioned EPA duties when doing non-EPA work and never used EPA facilities for private work. (Exhibit 23.) At no time on May 24 or at any subsequent time prior to his e- mail of September 29 had Dr. Schnare ever represented to me that he continued to be employed by the EPA or had had authority to do pro bono public interest law work for over years or for any other period of time. Dr. Scimarc repeatedly sought to convince me and my co-counsel that our expressions of concern about potential misuse of the documents to be provided under the 7 protective order were insulting to someone who had been an EPA lawyer handling highly confidential documents over a long career. Indeed, he made a similar argument to this court, stating at the hearing on September I6, 20ll that: "Now, because of some dispersions cast, we want to make it clear, Your Honor. I have been a federal prosecutor on environmental issues. I have had access to extremely sensitive business information. lf I were a corrupt man, I would not be here today on cash games, insider training, and retiring in Bermuda." (Exhibit 24 22. To attempt to understand the confusion about Dr. Sclmare's employment status, and discuss with him Ms. Wessel's proposal in her September 20 letter, Ms. Wessel and I scheduled a telephone call with him on October 3, 201 l. Prior to that conversation, Dr. Schnare sent us an e-mail stating that he wanted us to explain "the nature of [our] concem about the fact that [he] was an employee of EPA, operating under an outside employment waiver, prior to October I, 201 He further stated that he had "explained" to me that he "had worked for but "never made a specific statement as to [his] current employment other than as to [his] pro bono representation in the instant case and [his] general responsibilities for ATI, and had every good and ethical reason to say no more." (Exhibit 25.) 23. On October 3, 2011, in his conversation with Ms. Wessel and me, Dr. Schnare insisted that he had made no misrepresentations to me about his employment status with the EPA and had nothing to apologize for. I vehemently disagreed with these statements and so informed Dr. Schnare. 24. Subsequent to my conversation with Dr. Schnare on October 3, further information came to my attention that continued that he had been misleading me about his employment status with the EPA. Specifically, in a letter of October 6, 201 1, the Senior Counsel for Ethics with the EPA notified Peter Fontaine, who is representing Michael Mann in his motion 8 to intervene in this case, that Dr. Schnare had never had the required outside approval "to engage in outside activity that involves the practice of a profession or that deals in significant part with any ongoing Agency program, policy or operation." Moreover, although a "request for approval ofthe outside activity was purportedly prepared by Mr. Schnare on or about November 16, 2010, . . neither his Deputy Ethics Official nor his Assistant Deputy Ethics Official has any record of receiving it or approving this request to engage in the outside activity." (Exhibit 26.) 25. My review of the request for approval "purportedly prepared" by Dr. Schnare revealed that, even had it been received and approved by the appropriate officials at the EPA, it would not have authorized the work he has undertaken for ATI as counsel in this lawsuit because Dr. Schnare clearly and unambiguously represented: "My duties would not include any representation at law of the Institute or its members. Institute and affiliated attorneys will conduct all representation of any matters at law." (Exhibit 27.) 26. Further, Dr. Schnare's memorandum states that "All services will be performed entirely outside normal duty hours." (Exhibit 27.) However, a review of the e-mail communications I have received from Dr. Schnare since I became involved with AT1's Freedom of information Act request in mid-February (the request was made January 6, 201 1), reveals that I have received 58 messages from Dr. Schnare from February 17 to September 29, 2011. (Exhibit 28.) Most of these e-mails were sent between 8:30 a.m. and 5:00 p.m. and all were sent on week days and on days that were not federal holidays. Moreover, during this same time period, Dr. Schnare has tiled voluminous pleadings in this Court during regular business hours. Mr. Schnare also sent emails to my co-counsel Madelyn Wessel and to the University's Public Affairs Office during regular business hours. (Exhibit 29). 9 27. The fact that Dr. Schnare has, for whatever reason, felt compelled to make misleading statements to me about his employment status with the EPA, and demonstrably false statements about his having obtained the requisite approvals to represent ATI in this lawsuit while still being employed bythe EPA, is extremely troubling and has destroyed Dr. Schnare's credibility in my mind. Under the circumstances, I cannot feel comfortable with the representations he has made to me about his intent fully to abide by the terms of the protective order. The behavior of Mr. Horner documented in this Affidavit also creates the same concerns. Mr. Horner is also not licensed to practice in Virginia and is therefore not subject to ethical duties and standards set by the Virginia Bar. Cl. Richard C. Kast Seen to and subscribed before me this I 7* day of October, 2011. 1 I My commission expires: /3o/ .101 mary Pubtit of 707 3994 1 4 commission Efvtf" 2? 10 rage 1 or 5 atinstituteuorg Court Orders University of Virginia to Produce Documents of Dr. Michael lVlann FOR IMMEDIATE RELEASE Wednesday, May 25, 2011 Contacts: Christopher Horner, chris.horner@atinstitute.org Paul Chesser, paul.chesser@atinstitute.org share I EXHIBIT MANASSAS, Va.-On Tuesday, more than four months after the American Tradition lnstitute's Environmental Law Center requested emails and other iles from a specifically identified University of Virginia back-up computer, the University was hauled into court and made to stand and agree to comply with the Commonwealth's Freedom of information Act (FOIA). See all court documents, press releases, media coverage of ATI's case against UVA - Under Virginia's FOIA, ATI and co-petitioner Delegate Bob Marshall (R-Manassas) asked UVA to disgorge the emails and iles that Virginia's Attorney General also sought under other authority. The emails are specific communications sent and received by Dr. Michael Mann during his tenure at UVA in which he corresponded with, or discussed other, leading voices that represent the climate alarmist perspective, Seminal among them include discussions about his now infamous and discredited 1,000-year temperature reconstruction known as the "hockey stick." There also already appears -from records ATI has received - to be additional information of the kind released in the "Climategate" emails that originated at the Climatic Research Unit at East Anglia University. Under FOIA the University was required to produce the documents within Eve days of its receipt of payment for "accessing duplicating, supplying or searching" for the documents. Alternatively they could have entered into an agreement with ATI on when they would supply the documents, or they could have gone to court to ask for more time. They did none of the above. Instead they promised to provide some of the documents "shortly" on April 6; then specifically on May 6, 2011; and always stated they would get to the others later on. They did none of this either, so ATI went to court to compel production and compliance with the law. ATI finally received the first approximately 20 percent of the 9,000 pages of documents that UVA says are responsive to ATl's request and that it possesses, only after ATI filed its petition, and two working days before the judicial hearing. Most of what ATI received in this seemingly hurried production, which was more focused on showing volume than content, were ads for Halloween costumes, public news releases from lay Page 2 or 5 and scientific journals, and a few emails that were printed in computer code so as to be unintelligible in that form. Despite this product of (according to the University) 75 hours of review and more than four months, the University stopped work on producing anything further. Nevertheless some substance made it through UVA's filter, which will discuss after we review the withheld records. The failure of UVA to honor its own commitments or to follow the law forced ATI to petition the court for relief. ATI filed its petition on May 16th, and the Court heard the matter Tuesday. It took a petition to force UVA to agree to produce the documents that by statute they should already have produced. The day before the court hearing, UVA finally agreed to a date when they must produce all the documents they believe are not protected from disclosure. The court entered an order that forces UVA to honor that agreement and to produce the documents in easy-to-read electronic form so that ATI can make them available to all who wish to review the work of this highly controversial former Virginia employee. They must produce those documents by August 22nd. In addition ATI has won the right to look at all the documents beginning no later than September 21, including those the University refuses to make public. The court issued a protective order that allows ATI 's attorneys, David Schnare and Christopher Horner, to see them all so that they can challenge any further UVA refusals to supply what the public paid for. The records constitute a history of the "hockey stick" and the activities of Michael Mann, who also during the relevant time served on, the UN's IPCC, all of which have been the subject of intense scrutiny. "By the end of this year, ATI and UVA will obtain judicial review of the University's obligation to fulfill the public's right to know how taxpayer-funded employees use the taxpayers resources," said Mr. Horner, director of litigation at ATl's Environmental Law Center. "The court will determine whether this can be hidden behind the ivy covered walls of our public colleges and universities under a non-existent FOIA exemption of 'academic freedom) which Virginia's legislature has never recognized." ATI also put a final issue before the court. Under the Virginia FOIA, UVA is not allowed to impose fees on ATI to recoup the general costs of creating or maintaining records, or of transacting the general business of the University. The University has already admitted that it must obey several laws in fulfillment of its duty to protect some of its records, such as medical files and student information. This is part of the business of the University, just as any governmental body must protect its sensitive records. UVA, however, demanded that ATI pay $8,500 to offset UVA's costs of doing precisely this regular business, which must be performed when releasing any information, under any authority. ATI argued, and existing case law indicates, this is simply not allowed. The University disagreed, and the court will issue its opinion on that matter on June 15th. pursues important public issues," said Dr. Schnare, director of ATl's Environmental Law Center. "This case is about whether the government can put up a pay wall to frustrate the public's right to transparency. If it can, the public can't hold government employees to the high standards of conduct they should meet." is\-tnf 1 Page 5 OI 3 See Prince William County Na.) Court's Order to Produce Documents in ATI Environmental Law Center's Freedom of Information Act case against the University of Virginia (PDF). See Prince William County Cour't's Order on Protection of Documents in ATI Environmental Law Center's Freedom of Information Act case against the University of Virginia (PDF). For an interview with American Tradition institute senior director of Iitigation Christopher Horner; email chris.horner@atinstitute.org or cal! (202)670-2680. You are currently viewing the printable version of this article, to return to the normal page, please click here. dtje dunes Ruling alters climate-papers fight Judge's order to to turn over documents welcomed by Cnccinellt' 59 Comments and 54 Reactions I Share Tweet I Email I Print I I-*ke By Paige Winfield Cunningham The Washington Times Wednesday, May 25, 20ll Virginia Attorney General Kenneth T. Cuccinelli 11 says a judge's order compelling th University of Virginia to turn over thousands of pages of climate-change research will likely alter his own battle for the long-sought documents. The Republican attorney general and state Delegate Robert G. Marshall have battled the university for more than a year over the release of documents related to the work of former professor Michael Mann. Mr. Mann had been involved in a leaked email exchange with colleagues that climate-change skeptics claimed showed misconduct. Mr. Marshall, Prince William Republican, requested the documents through the Freedom of information Act, whit Mr. Cuccinelli subpoenaed them. Mr. Cuccinelli said an order issued Tuesday in Prince William County Circuit Court that grants Mr. Marshalls request could affect his own appeal to the state Supreme Court to reverse a previo ruling in favor of the university. "It certainly can affect what we're doing," Mr. Cuccinelli said. "If they essentially disgorge everything, there's no cause for them to be going to court to try and cover it up." He said he plans to review the documents and "see how the process unfolds." "lf, as and when we get copies of the stuff, we'll see what's responsive," he said. "lt`s kind of hard to tell what isn't produced. You don't see what isn't there." The university has so far turned over 20 percent of the 9,000 pages of documents it says are responsive to a reques from the American Tradition Institute (ATI), a conservative-leaning, environmentally focused group that joined forces with Mr. Marshall in January. ATI filed a petition last week, saying the university had failed to respond to a information request filed early this year. A judge has given the university until Aug. 22 to supply the rest of the documents. Mr. Marshall said he was pleas with the decision, but is skeptical the university will hand over everything he has requested. "1 want to look at what they've given us and examine what they've withheld and see why it's been withheld Mr Marshall told The Washington Times. "The more they Stonewall, the more they're making Richard Nixon look like choirboy." University spokeswoman Carol Wood said the university has been in "frequent and regular contact" with ATI EXHIBIT lawyers, working to clarify their request and work out a "reasonably manageable process" to satisfy the public infomation law. Mr. Marshall enlisted ATI's help after a year of pursuing the climate-change documents on his own. After submitting his first information request in December 2009, the university told him it no longer possessed the materials he requested. In response to a second request the following spring, he was told it would cost $8,500 to prepare the documents. While state law allows public agencies to charge a reasonable sum to compensate for time and effort in meeting public information requests, Mr. Marshall and ATI said the university was charging an unreasonable sum. The cou has yet to determine how much the university may charge to meet the request. "This case is about whether the government can put up a pay wal] to frustrate the public`s right to transparency," said David Schnare, director of the ATI Environmental Law Center. "If it can, the public can't hold government employees to the standards of conduct they should meet." blog comments powered by DISGUS A_d_s_hy Google Halloween Uva Uva Da Tavola The Halloween Club Yes, Virginia, you do have to produce those 'Global Warming' documents By: Christopher C. Horner, David W. Schnare and Robert Marshall 01f05!ll 9:05 PM Op-Ed Contributors Today, Virginia taxpayers, a state lawmaker and a public interest law firm are asking the University of Virginia to produce important "global warming" records under that state's Freedom of information Act. These are records the school no longer denies possessing but nonetheless refuses to release, even to Attorney General Ken Cuccinelli. They address one of the most high- profl claims used to advance massive economic-intervention policies in the name of "global warming." In response to a previous FOIA request, denied these records existed. However, during Cuccinelli's pre-investigation under the Virginia Fraud Against Taxpayers Act a 2007 law passed unanimously by Virginia's legislature, which clearly covers the work of taxpayer- funded academics, stunningly dropped this stance. For this reversal, the taxpayers of Virginia owe Cuecinelli a debt of gratitude. Still, the school has spent upward of half a million dollars to date fighting Cuccinelli's pursuit, now before the Virginia Supreme Court. However, Virginia's transparency statute FOIA gives the school one week to produce the documents, and offers no exemption for claims is using to block Cuccinelli's inquiry. These e-mails and other documents relate to claims made by Michael Mann to obtain, and claim payment under, certain taxpayer-funded grants. Mann worked at the university's department of environmental sciences when he produced what was hailed at the time as the "smoking gun" affirming the theory of catastrophic man-made global warming. Despite that lofty persistent controversy led promoters of this notorious "Hockey Stick" graph (principally, the United Nations' Intergovernmental Panel on Climate Change or IPCC) to stop advancing it as serious work. Leaked "ClimateGate" e-mails discussing these same controversies prompted Cuecine1li's pre- investigation. Sadly, in order to keep the taxpayers' advocate from examining the evidence, has offered a series of twists on a novel defense of "academic freedom." Now we with the American Tradition Institutes environmental law center have requested these documents tmder FOIA and will presumably put an end to these tactics of denial followed by delay. importantly, also under FOIA in late 2009, the pressure group Greenpeace sought, and was promised, e-mails and other materials of Patrick Michaels, who also formerly worked in the same university department. EXHIBIT i 3 While the university proceeded to compile the material for Greenpeace, one of us, Virginia Del. Bob Marshall, R-Prince William, thought to ask for records relating to Michaels' former colleague, Mann. Oddly, the university informed Marshall that such records no longer existed because Mann had left the department. Michaels has stated that the university, in explaining to him these disparate responses, asserted that some people's records are treated differently than others. Mann's were allegedly destroyed; Michaels' were being packaged for delivery to Greenpeace. One disparity possibly helping to explain the other was that Mann had been an active participant in the IPCC, obtaining many research grants for his work at But Michaels had been a very politically incorrect, high-profile "skeptic" of catastrophist claims such as those represented by the IPCC, and particularly Mann's Hockey Stick. In court in August, opted against robustly defending, as a legal argument, its academic- freedom rationale for refusing to produce the records. Yet even this week, it is asking the Virginia Supreme Court to deny Cueeinelli's request for doetunents possibly showing whether the dense Hockey Stick smoke indeed indicates fire. This does Virginia taxpayers a disservice. Other records obtained under FOIA reveal that has been paying Washington lawyers several thousand dollars per day to deny the requested transparency. As such, in a separate request, we also seek information about this privately underwritten effort to avoid complying with Cuccinelli's inquiry. The university has previously demanded taxpayers pay thousands of dollars for a FOIA search for Marufs records, on the grounds that it maintains a broadly dispersed record-keeping system. Therefore, we have specifically directed the school to only search the backup server it claimed to the attorney general's office that it finally located as the likely home of the Mann records. As such, demands for huge search fees should not be an obstacle. We hope for prompt university compliance with FOIA, although we are prepared to fully protect Ollf appellate rights. As Virginia taxpayers, we also hope to see rise to its reputation and reflect the highest fidelity toward its statutory and other obligations. We can then, finally, determine what it is that so many have gone to such great to keep the public from knowing about that for which the public has paid. Christopher C. Horner is senior director of litigation for the American Tradition iaw center and cr Virginia resident; David Schnare, is a Virginia resident and afzalerai attorney, Dei. Bob Marshall is a Virginia Republican delegate representing Prince William County. Commentary Contentions Climate Scientist Ordered to Release Thousands of Documents Alan Goodman/@alanagoodman 05.26.2011 - 1:29 PM After ClimateGate, when a trove of emails from an East Anglia climate research institute appeared to show scientists conspiring to distort date on global Warming, other public climate centers were asked to release similar email exchanges under the Freedom of Information Act. Documents from the University of Virginia were of particular interest, because one of its professors, scientist Michael Mann, was at the center of the ClimateGate controversy. has refused to release lt/lann's emails for over a year, but now it looks as if the public might finally get a glimpse at some of these exchanges. The university has been court-ordered to turn over 9,000 of Mann's correspondences within the next 90 days, the Washington Examfnefs Barabara Hollingsworth reports: The documents must be released electronically, unlike the printed UVA has released to date. The university must also allow [American Tradition Institute] attorneys David Schnare and Chris Horner to view any it believes are exempt from release under FOIA-with the burden of proof on UVA. "The court will determine whether the public's right to know how taxpayer-funded employees use the taxpayers' resources can be hidden behind the ivy-covered walls of our public colleges and universities under a non-existent FOIA exemption," Horner said in a statement. may try to hold back some of the most damaging documents by claiming they are exempt from FOIA, but as Hollingsworth points out, these exchanges will still have to be shown to the two attorneys who filed the public information request. If the documents released by are half as damning as the ones from East Anglia, it will be a serious obstacle for both the scientists who peddle the anthropogenic global warming theory and for lawmakers who favor climate change legislation. A Rasmussen poll from April found that 47% of voters say long-term planetary changes are primarily responsible for climate change, while 36% said that human activity is primarily at fault. This perception will likely grow if more corruption among climate scientists is uncovered, which could be one reason why UVA was so resistant to handing over these documents. EXHIBIT The Chronicle of Higher Education U. of Virginia Agrees to Release Climate Researchers E-Malls May 25, 2011, 2:29 pm The University of Virginia has agreed to turn over a potentially enormous trove of climate-research e-mails and other documents to a conservative group that filed a demand for them under the state's Freedom of Information Act. The demand centers on more than a decade's worth of e-mail messages from, to, and about Michael E. Mann, a climate scientist who left the university in 2005 to become director of a research center at State University. The organization, called the American Tradition Institute, joined with a Republican state legislator to file its request after the university went to court to fight an attempt by Virginia's attorney general, Kenneth T. Cuccinelli II, to use a different law to get the same documents, which he said he needed to investigate possible climate- research fraud. In a court document signed yesterday, the university said it would produce the materials within three months. EXHIBIT i . rt. 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Post your comments. ,smi te Category: Virghie News Q3-, Subscribe to this blog release climate change papers to Interest - . _.L-ar --Li 2 Under the temis ot a legal agreement, the work papers ot a former University of tnrginia dimate change professor will be provided to an advocacy group that requested them earlier this year under state open if "i - records law. Q. 3* fi The agreement was reached Tuesday ln Prince lMlliam County Circuit Court. 1he American Tradition institute and oel. een Marshall, n-Prince vwltam, sees e-mans and other mes - of noted climate change scientist Michael Mann that are held by the university. mn ma i Mann's conclusions have been heralded eo prootot climate change by some, end dismissed as faulty TOOLBDX - 3-QETTC-3 by For more than a year, Attomey General Ken has been after similar documents from as PM - part ol en investigation into possible fraud related to taxpayer-funded grants awarded during Mann's sz Email tenure. The institute asked tor the records ln January. 1 as Ofticlals ctalm has been slow in responding to that request, even alter the school was paid $4,000 document reproduction costs. - -University ofliclals counter thatthey negotiated with the institute and have been clear that the process r: Dios] ci t. of retrieving the docurrents is time consuming. Raw .- The institute recently asked a court to intervene. The agreement between the parties specilies that ls to tum over all documents within 90 days ofthe order issued Tuesday. (About ot the roughly 9,0-Do pages ol documents sought have been provided to the Institute.) ti - 3 1-tit ll -- .- Oucclneilfs pursuit of those records is ongoing ln court. lbleoogre UPDATE: A spokeswoman said the judge who heard the matter expects to issue a ruling by June 15. An unresolved issue before the court is whether state law allows the university to be reimbursed for the oostol reviewing documents before they are released or whether the university must absorb it. - Julian Walker Login or register to post corrunents View 2 comments Link to post GOIIHEHTB Users are solely responsible for opinions they post here; do not reflect the views bl' The Virginian-Plot or H: websites. Users rrlult follow agreed-upon rules. Bn civil, be clean, he on to-plc; don'l private other users of entire ciesses of people. Flood the full rutes here. - Corltmertts are automatically checked for itappropriate language, but readers midtl fund some comments offensive or inaccurate. lf you believe a comment violates our rules, click the rupon violation link below Q. Hide Comments . 1 I I -VYBHOO -1 Q.. Click po" 3 It 'fri 'v'uf;u. it :ii 'Civ Ii ,fu put -ii. it -um itll' -H--it -us -I-IGI: Pint I wil Er- fwilhg li; fuliu1li'tCj'| -i .u 'ln -i'l :priori I more =-fl 0' aitil?i QUICK IEHCCSI LD, LU1 1 - lI'lS1(lC 1"1lgI1Bl' lid l"3.gC or Advertisement Quick Takes may za, 2011 Michigan Pays $550,000 to Suit With Former Prof The University of Michigan has agreed to pay Andrei Borisov, a former non-tenured faculty member in pediatrics, $550,000, and to remove certain negative statements from his personnel tile. to settle his suit against the university. AnnArbor.com reported. Borisov had resigned in 2008, after being told that his behavior was seen as threatening, following inquiries he had been making into possible plagiarism in reports to federal agencies that made grants to Michigan. The university denied wrongdoing in those cases. Compromise on Foundation Bill in California Califomla's public higher education systems have agreed to drop opposition to that will require much more disclosure of records about their foundations and auxiliary operations. However. the colleges and universities have been assured of provisions that will preserve in most cases the right of donors to be anonymous. 'Nth the agreement. the bill is expected to be enacted. Judge Orders to Release Researchers Documents A state judge has ordered the University of Wrginia to release documents produced by Michael lvlann, who formerly taught there, to a conservative foundation requesting them as open records, The Washington Examiner reported. Mann is a climate researcher whose wodt is consistent with the scientific consensus on climate change, but who is doubted by some conservatives. In an e-mail, Mann said: "l think its very unfortunate that fossil fuel industry-funded climate change deniers continue to harass NASA, and other leading academic and scientific institutions with these frivolous attacks." Academic Minute: Passive Hearing, Active Listening In todayfs Academic Minute, Rensselaer Polytechnic lnstitute's Pauline Oliveros examines the difference between passive hearing and active listening. Find out more about the Academic Minute here. Movers and Shakers: Columbia College Chicago, Grinnell College, Loyola U. Chicago. Simmons Colge, U. of New Haven Judy A. Eleal, interim dean of the Schooi of Nursing and Health Sciences at Simmons College, has been named to the job on a permanent basis. Beth Halloran, assistant vioe president for development at the University of Michigan at Ann Arbor, has been as vice president for development and alumni relations at Grinnell College. Ronald S. Harichandran, chair of the department of civil and environmental engineering at Michigan State University, has been selected as dean of the Tagliatela College of Engineering at the University of New Haven, in Connecticut. Onye Ozuzu, associate chair and director of dance in the department of theatre and dance at the University of Colorado at Boulder, has been named chair of the dance department at Columbia College Chicago. Carol Rozansky, professor of education at the University of Nebraska at Omaha, has geen choseg as chair of the education department at Columbia College Chicago. Darrell P. Wheeler, associate dean for research and community partnerships at Hunter College of the the City University of New York, has been selected as dean of the School of Social Work at Loyola University Chicago. I EXHIBIT '7 Kast, Richard rck4 From: Dr. Schnare Sent: Thursday, May 26, 2011 2:47 PM To: Kast, Richard (rck4p) Subject: Quick note Rick: Please let your colleagues know that the noise that has arisen since Tuesday is just noise. I look forward to discussing with you how we can bring our disparate philosophies together into a sensible approach to disclose that which it is proper to disclose, without visiting harm on the academic community. I've been thinking about how to do that, and before our side begins to sift through the excluded documents, I'd like to take some time to come down to the school and sit with you and faculty representatives to discuss these issues. Maybe it won't result in anything, but I hold out hope that it will. Nice to meet you in person and hope you have a safe holiday weekend. David. David W. Schnare, Esq. The Law Center at ATI EXHIBIT 1 a Kast, Richard rck4 From: Kast, Richard (rck4p) Sent: Friday, May 27, 2011 3:26 PM To: 'Dr. Schnare' Subject: RE: Quick note David: Than`l Sent: Friday, May 27, 2011 4:15 PM To: Kast, Richard Subject: Re: Quick note Rick, The most disturbing reporting suggested that we would use any knowledge we gain to game the system. I responded to one blog, explaining that Horner and I are honorable men that are professionally bound to honor both the letter and the spirit ofthe law and our personal comrnilrnents. Further, I made a strong point on this to one reporter. None of that made it into print, sadly. Nevertheless, please reassure your colleagues that I will countenance no abrogation of our duty to the court and to UVA. Finally, it just is not how I do law. Best Schnare On May 27, 201 l, at 3:25 PM, "Kast, Richard (rck4p)" wrote: David: Thanks for the note. While we are used to the hyperbole and error that has pervaded much of the reporting on this matter, some of what you characterize as "noise" after 'I`uesday's court hearing was particulariy disturbing in its implication that the Protective Order did not exist or was of no moment. I would appreciate your reassurance that you and Mr. Horner remain fully aware of the requirements for coniidentiality and nondisclosure imposed by the Court, and will do what you can to dispel the misinformation that provided the basis for such articles as the one that appeared in "The Washington imes." As I'm sure you can imagine, there has been a good deal of discussion here after that article about whether we need to seek further assurances from the Court to be able to continue to have faith in the process agreed to Tuesday-_ I hope you have a good holiday weekend as well. I will bein touch next week. - Rick From: Dr. Schnare Sent: Thursday, May 26, 2011 2:47 PM Exman- i 1 _g 0 To: Kast, Richard (rck4p) Subject: Quick note Rick: Please let your colleagues know that the noise that has arisen since Tuesday is just noise. I look forward to discussing with you how we can bring our disparate philosophies together into a sensible approach to disclose that which it is proper to disclose, without visiting harm on the academic community, ['ve been thinking about how to do that, and before our side begins to sift through the excluded documents, I'd like to take some time to come down to the school and sit with you and faculty representatives to discuss these issues. Maybe it won't result in anything, but I hold out hope that it will. Nice to meet you in person and hope you have a safe holiday weekend. David. David W. Schnare, Esq. The Law Center at ATI 2 Kast, Richard rck4 From: Dr. Schnare Snt: Wednesday, June 01, 2011 12:14 PM To: Kast, Richard (rel<4p) Cc: Chris Horner Sublect: Re: Proposed meeting Rick: Thanks for your timely response. Both Mr. Horner and I take our responsibilities to the Court very seriously, but understand the sensitivities at issue in this highly public matter. To that end, Mr. Horner will send you an email documenting his full understanding of the responsibility he took on when he signed the attachment to the protective order and his continuing commitment to that. On a second point, although it was my suggestion, we would like to pull back from one aspect of this meeting. The principle decision-making parties to this matter are the Rector, for whom the Provost is standing in, and those who provide advice to the Provost, including the general counsel (and start) who are the attorneys of record, as well. This list does not include the Chair of the Faculty Senate, and as such, we would rather no one attend in that role. I am free most of next week. I am not sure whether Mr. Homer will be available to attend, but if he is, he will provide you dates when he is available. Best regards, David On Wed, Jun 1, 2011 at ll:36 AM, Kast, Richard Wrote: David: have discussed your proposal with the General Counsel. We are willing to arrange a meeting but he has asked that we tirst receive reassurance from Mr. Horner that he too understands and appreciates the requirements imposed by the Protective Order. l'rn sure that you believed you were responding for him as well in your previous response on this issue but the General Counsel would like to hear from Mr. Horner directly. Regarding the requested meeting, we would propose that besides me, the following would be in attendance: Paul Forch, the General Counsel; Madelyn Wessel, another lawyer in our oflice who has been involved with the issues raised by your request; the University Provost Milton Adams; and also the Chair-Elect to the Faculty Senate (the Chair is currently out of town). We can proceed to arrange this when you let me know what dates might work for you over the next week or so. Let me know if this sounds useful. EXHIBIT 1 11 Kast, Richard rck4 From: Sent: Wednesday, June 01, 2011 12:49 PM To: schnareati@gmail.com; Kast, Richard (rcl<4p) Subject: Re: Proposed meeting Dear Rick, 0- Please assure the general counsel that that is indeed my signature on the Protective Order bearing my name, executed in your presence in Prince William County. Although this Order will not take meaningful effect until certain events transpire - sooner rather than later is, as you know, our preference - if has any concerns about my adherence to it, please do not hesitate to have him or her contact me directly. As to the meeting David suggests, 1 am afraid that am unavailable to attend anything in-state until between Tu' and l8"" June. I have every contidence that David can manage in my absence, running any possible formal agreement(s) past me before ATI signs off. Yours faithfully, Chris Horner Message-- From: Dr. Schnare To: Kasl, Richard (rcl<4p) Cc: Chris Horner Sent: Wed, Jun 1, 2011 12:13 pm Subject: Re: Proposed meeting Rick: Thanks for your timely response. Both Mr. Horner and take our responsibilities to the Court very seriously, but understand the sensitivities at issue in this highly public matter. To that end, Mr. Horner will send you an email documenting his full understanding ofthe responsibility he took on when he signed the attachment to the protective order and his continuing commitment to that. On a second point, although it was my suggestion, we would like to pull back from one aspect of this meeting. The principle decision-melting parties to this matter are the Rector, for whom the Provost is standing in, and those who provide advice to the Provost, including the general counsel (and staff) who are the attorneys of record, as well. This list does not include the Chair of the Faculty Senate, and as such, we would rather no one attend in that role. I am free most of next week. I am not sure whether Mr. Horner will be available to attend, but if he is, he will provide you dates when he is available. Best regards, David EXHIBIT On Wed, Jun 1, 2011 at 11:36 AM, Kast, Richard wrote: 1 Z, David: I have discussed your proposal with the General Counsel. We are willing to arrange a meeting but he has asked that we tirst receive reassurance from Mr. Horner that he too understands and 1 appreciates the requirements imposed by the Protective Order. I'm sure that you believed you were responding for him as well in your previous response on this issue but the General Counsel would like to hear from Mr. Horner directly. Regarding the requested meeting, we would propose that besides me, the following would be in attendance: Paul Forch, the General Counsel; Madelyn Weasel, another lawyer in our oftice who has been involved with the issues raised by your request; the University Provost Milton Adams; and also the Chair-Elect to the Faculty Senate [the Chair is currently out of town). We can proceed to arrange this when you let me know what dates might work for you over the next week or so. Let me know if this sounds useful. - From: Dr. Schnare Sent: Tuesday, May 31, 2011 8:49 AM To: Kast, Richard (rck4p) Subject: Proposed meeting Rick: am angered and upset at the mostly irrational and surely uncivil discussion going on (especially on influencial internet blogsiwith regard to the differences between UVA and GMU in handling recent FOIA requests, and ATI has done little to help in that regard. ln contrast, and as the Director of our law center, I am committed to a civil and sensible resolution of our dispute with you and would like to come down to Charlottesville lo meet with you, the general counsel, the President and the President of the Senate Faculty in a private and off-the-record session - one that would fall within the protections oi a settlement negotiation, the content of which would not be released to the public by either side. I believe we have some common ground on protection of academic activities, and I believe we might a way to draw a fuzzy line between that which must be protected and that which deserves none. This matter will go to court. Bad facts make bad law, so I would like to work with you to ensure we have clear examples for the court, ones that show the distinction between our different points of view. To make that happen, we need to share our points of view, which is the purpose ofthe meeting. Please extend my request to those named and let me know when would be a convenient time to schedule a meeting. lf you decide not to take up this opportunity, please let me know. Respectfully, David. David W. Schnare, Esq. The Law Center at ATI David W. Schnare, Esq. The Law Center at ATI 2 Kast, Richard rck4 From: Dr. Schnar Sent: Tuesday, May 31, 2011 8:49 AM To: Kast, Richard (rck4p} Subject: Proposed meeting Rick: I am angered and upset at the mostly irrational and surely uncivil discussion going on (especially on influencial intemet blogs) with regard to the differences between UVA and GMU in handling recent FOIA requests, and ATI has done little to help in that regard. In contrast, and as the Director of our law center, I am committed to a civil and sensible resolution of our dispute with you and would like to come down to Charlottesville to meet with you, the general counsel, the President and the President of the Senate Faculty in a private and off-the- record session -- one that would fall within the protections of a settlement negotiation, the content of which would not be released to the public by either side. I believe we have some common ground on protection of academic activities, and I believe we might find a way to draw a fuzzy line between that which must be protected and that which deserves none. This matter will go to court. Bad facts make bad law, so I would like to work with you to ensure we have clear examples forthe court, ones that show the distinction between our different points of view. To make that happen, we need to share our points of view, which is the purpose of the meeting. Please extend my request to those named and let me know when would be a convenient time to schedule a meeting. If you decide not to take up this opporumity, please let me know. Respectfully, David. David .W. Schnare, Esq. The Law Center at ATI 3 1 3 13 12:25:33 p.m. 04-14- nprii 14, 2011 VIA Fax 81 E-Mail To: 434-924-3792 presidentsUllivan@Virginla.EDU Teresa A. Sullivan, President University of 'virginia Madison Hall PD. Box 400224 Charlottesville, VA 22904-4224 De ar President Sullivan: We understand that in .ianuary 2011, the American Tradition institute Environmental Law Center, Virginia Delegate Robert Marshall, and one other Virginia resident affiliated with the Competitive Enterprise institute filed a request with the University of Virginia under the state's Freedom of Infomation Act (FOIA). The request is substantially similar to the Civil Investigative Demands issued by Virginia Attorney General Kenneth Cuccinelli to the University of tnrginia for a variety of records related to Professor i'vlann's research, and, like the ClDs, this request encompasses a broad array of materials produced and exchanged by Professor Mann in the course of his work as a professor and schoiar working on topics related to global climate change. Although this request was made several months ago, it appears to bear similarities to the FOIA requests recently served upon the University of Wisconsin-Madison and the labor studies departments at the University of Michigan, Michigan State University, and Wayne State University, seeking emails exchanged by professors in the course of their scholarly work. As you may know, after careful consideration of the FOIA requests, including a review of th emails for any violations of Wisconsin law or university policy (of which it found none}, the University of Wisconsin-Madison conducted a balancing test and concluded that it could appropriately exempt "private email exchanges among scholars that fall within the orbit of academic freedom and all that is entailed by lt." As Chancellor Biddy Martin explain ed in her statement of April 1, 2011: Academic freedom is the freedom to pursue knowledge and develop lines of argument without fear of reprisal for controversial findings and without the premature disclosure of those ideas. When faculty members use email or any other medium to develop and share their thoughts with one another, they must be able to assume a right to the privacy of those exchanges, barring violations of state law or university policy. Having every exchange of ideas subject to public exposure puts academic freedom in peril and threatens the processes by which knowledge is Created. The consequence for our state will be the loss ol the most talented and creative faculty who will choose to leave for universities where collegial exchange and the development of ideas can be undertaken without fear of premature exposure or reprisal for un popular positions." Chancellor Martin's statement is available on th University of Wisconsin-Madison's website, at 19190. ln addition, see for a letter from the oflice of the general counsel at the University of Wisconsin setting out the specific exemptions and the university's justification for invoking each. EXHIBIT ite 2011 213 12:25:49 p.m. 04-14-2011 The undersigned organizations, dedicated both to academic freedom and the exchange of scholarly and scientific ideas and to the critically important ideals of government transparency that are embodied by FOIA, urge the University of Virginia to follow Chancellor it/1artin's lead in balancing the interests in public disclosure against the public interest in academic freedom, which the University of virginia has recognized in its faculty handbook as "an essential ingredient of an environment of academic excellence." ln addition, the virginia FOIA statute expressly provides an exemption for "data, records or information of a proprietary nature produced or collected by or for faculty or staff of public institutions of higher education . . . in the cond uct of or as a result of research on medical, scientilic, technical or scholarly issues . where such data, records or information has not been publicly released, published, copyrighted or patented." Furthermore, the federal Family Educational Rights and Privacy Act compels the university to keep private communications reiated to students and implies similar protections for potential students. The undersigned organizations therefore also urge the University of Virginia to carefully consider whether the materials sought fall within these statutory exemptions. As the United States Supreme Court said in the seminal case of Sweezy v. New Hampshire, he essentiality of freedom in the community of American universities is almost self ~evident To impose any straltiacket upon the intellectual leaders In our colleges and universities would imperll the future of our Nation Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization vvili die." Please do not hesitate to call upon us if we can be of assistance in your assessment of this request and your balancing of the twin values of academic freedom and government transparency. Sincerely Yours, Alliance for Justice American Association of University Professors American Civil Liberties Union of Virginia Center for inquiry Climate Science Watch Council of Environmental Deans and Directors National Coalition Against Censorship National Council for Science and the Environment People For the nm ericzrn Way Robert O'Neil, Director of the Thomas Jefferson Center for the Protection of Free Expression The Ornithological Council Union of Concerned Scientists cc: Richard l Sent: Sunday, August 21, 2011 2:06 PM To: rcK4p@virginia.edu Cc: prsidentsullivan@Virginia.EDU; fls4f@virginia-edu Subject: Open letter: regarding the ATI witch hunt targeting Michael Mann Mr. Kast, Your agreement with American Tradition Institute and the University is most disappointing. I would be nice to see you do more to protect academic freedom in the face of a wanton political witch hunt that has learning about our climate as it's lowest priority. Please don't roll over for them. with disappointment and despair, Sincerely, Peter Miesler an Open Letter to Teresa A. Sullivan, President University of Virginia Madison Hall president.sullivQ@Virginia.EDU Honorable President Sullivan, l'm just a little guy watching this cynical attack on academia that has been playing out between AG Cuccinelli and now the American Tradition Institute vs. the University of Virginia from the sidelines. You certainly know the facts better than I do so I Won't presume to add anything to that. Still considering these sorts of attacks on science are happening with greater frequency I feel compelled to share some frank personal observations regarding the important precedent you will be setting as you move forward. Have you given due consideration to the type, that is motivation, of the desired search being attempted? What about Americans, including scientists, historic respect for personal freedom and privacy? lsn't that worth defending with vigor? Academics are thinkers, most are also gregarious, that is, with those who are intellectually compatible. Personal discussions and tossing out wild investigating problems from every playing devil's sharing information and chewing on and digesting every scrap of information they come across. Then they go to work following established protocols in their scientitlc tield and publications. Like most motivated self-aware individuals they do their best work possible. Their goals are accuracy in their observations, leading to an educated realistic understanding, striving to continue in missing details and building upon their current knowledge. EXHIBIT 1 ?15 Moreover there are many of them, always looking over each others shoulders, checking and cross checking, looking for and following new leads, or gaps, or perceived mistakes in others work. Given the global community of competing scientists there are many checks and balances at work that despite all the blogosphere media trash-talk simply have not been shown to be broken. It is telling that the Cuccinelli, ATI, et al. have presented no actual indication of actual fraud. They simply have faith that if they dig deep enough they will find anything, to help them "nail" Mann. What's right about that? May I ask: Why are personal emails and working notes suddenly important for discovery regarding the voracity of the published global temperature records? Specially considering the many varied independent studies that support Mann et al's basic temperature reconstruction with a high degree of consistency. It's this flaw in ATI Cuccir1elli's logic that they should be pressed on. What are they trying to iind that is relevant to the scientific debate? They have produced nothing, instead resembling bullies who resent the scientists work thus resort to witch-hunts for information that has no bearing on science, but might offer some useful dirt anyways. Why would you consent to such an unwarranted intrusion at your university? You represent the University of Virginia, like to imagine a proud university, a bastion of thought, intellectual freedom, and unfettered learning, yet sounds like you are getting ready to allow obviously politically dedicated mind you, folks with a passionate sense oi' mission for stopping any Global Warming awareness, into the closets and dresser drawers of anyone whom they have a grudge against? What's up with that? Where is the defense of scientific integrity in that? Sincerely, Peter- Miesler Durango, Colorado Citizen 2 Orifice or THE PRESIDENT April 21, 2011 American Association of University Professors 1133 Nineteenth Street, NW Suite 200 Washington, D.C. 2.0036-3655 Dear Messrs. and Mmes.: This will respond to your letter ofApril 14, 2011, submitted on behalf not just ofthe AAU P, but also the Alliance for justice, the ACLU of Virginia, the Center for Inquiry, Climate Science Watch, the Council of Environmental Deans and Directors, the National Coalition Against Censorship, the National Council for Science and the Environment, People for the American Way, Robert O'Neil as Director of the Thomas Iefferson Center for the Protection of Free Expression, the Ornithological Council, and th Union of Concerned Scientists. As you know, as evidenced by its opposition to the Civil investigative Dem ands issued by Virginia's Attorney General, the University of Virginia is quite conscious of the academic freedom interests about which you express concern. Academic freedom issues are certainly part ofthe analytic framework the University' Office of General Counsel is bringing to its review of documents potentially responsive to the request about which you inquire. lt is my understanding that all available exemptions in Virginia's Free dom of information Act will be claimed in our response. We are also keenly aware ofthe constraints imposed on disclosure by the Family Educational Rights and Privacy Act, and other provisions of federal and state law to which Virginia's Freedom of information Act is explicitly subject. While the University is, of course, committed to complying with the requirements of law, I wish to reassure you that this commitment will be carried out to the fullest extent possible consistent with the interests of faculty in academic freedom and scholarship. Very truly yours, Teresa A. Sullivan President cc: Mr. Richard Kast Ms. Carol Wood Madison Hall EXHIBIT Post Otiice Box 400224 Charlottesvi.l.le, VA 22904-4224 Phone: 434-924-3337 Fax: 434-924-3792 .- A A wav .L .J - Donate - 1 _Horam 0 Blog Rgpearcp Investigatiye I About Staff Board of Qirgtors Fellows Advisors 51? Fellows Advisors Proggarn I Media CCTIISI Press ?e1;a?g? All Audio Chggel ;L'l`1 Video Chgigel Law Qegter 0 A Litigation Blog 0 'Hockey Stick' Creator Michael Mann Seeks Court's Help to Ensure No lnguigg, No 'Exonerationf Published Sc'p!ember 6, 2011 of 11:40 om Dr. Michael Mann, lead author ofthe discredited "hockey stick" graph that was once hailed 'oy the UN Iritergovernrnental Panel on Climate Change as the "smoking gun" ofthe catastrophic man-made global warming theory, has asked to intervene in American Tradition Instin1te's Freedom of Information Act lawsuit that seeks certain records produced by Mann and others while he was at the University of Virginia, for the purpose of keeping them hidden from the taxpayer. 5 'f ggi; -- - -- li Latest News - ATI has produced a three-part video series that explains why Colorado. Part One explains why wind power is not clean or Y- unconstitutional; Part Three explains what the possible outco ri Whafs Happening Now Efideo Channel "i 'f 0 qi Fa. _.ii EXHIBIT 1_1 i Reima OFFICE tyre GENERAL COUNSEL We Electronic Mai! August 31, 2011 David W. Schnare, Esq. Christopher Horner, Esq. The Law Center at the American Tradition Institute 2020 Avenue, N.W. 186 Washington, D.C. 20006 RE: The American Tradition Institute, ef al. v. The Rector and Visitors of the University of Virginia Civil Docket No. CL 11-3236 Dear Dr. Sclmare and Mr. Horner: You will recall that there were expressions of concern after the entry ofthe Order on Protection of Documents ("Protective Order"), and the corollary Agreements Concerning Confidentiality ("Confidentiality signed by you in this case, that your interests as parties to this litigation would outweigh your ethical duties as counsel. 1 raised these concerns at the time and you each assured me that you were fully aware of the duties imposed by the Confidentiality Orders and would rigidly comply with them. A new concern has now arisen that I would appreciate your responding to. This concern focuses on the meaning of Section (2) ofthe Protective Order which would permit disclosure of documents shared with you as counsel for the limited purposes set forth in the order to "[a]ny other court of cornpetentjurisdiction pursuant to lawful process or order." The specific concern focuses on the possibility that some other entity, whether public or private, might issue or seek to issue a civil investigative demand subpoena, or other demand or request for the documents held pursuant to the Protective Order. It is clear that such a CID, subpoena, or other demand or request would not come within the language of this exception to the Protective Order. To reassure those who have raised this issue, however, I would appreciate each of you signing and returning a copy of this letter to me to indicate that: (1) you agree that the language of the Protective Order would not enable disclosure of these confidential materials or information pertaining thereto pursuant to a CID, subpoena, or other demand or request not directly issued by a court of competent jurisdiction, and (2) should you receive such a CID, subpoena, or other demand or request you would immediately give notice to us and would take no action to comply until we had a reasonable opportunity to challenge the CID, subpoena, or other demand or request as not in compliance with the Protective Order. Madison Hall PO. Box 400225 Charlottesville, Wt 22904-fl225 Ex Phone: 434 -924-3586 3 5 I would appreciate receiving your responses no later than Friday, September 2"d. Thank you for your consideration of this request. Sincerely, Q, 41, rw Richard C. Kast Associate General Counsel and Special Assistant Attorney General I agree with the above: David W. Schnare Date: Christopher Horner Date: 2|Page . fini ti ifnvimnrnontal haw Center at the American Tradition institute- Septembcr 2, 201 l/in Electronic Mail Richard C. Kast Office of the General Counsel University ofVirginia Madison Hall - PD. Box 400225 Charlottesville, VA 22904-4225 Re: ATI v, UVA - CL. I1-3236 Dear Mr. Kast: . We are in receipt of your letter ot' August.3l, 201 l, to which this is a response. In your letter you refer to Section ofthe Protective Order issued under the subject litigation, raising a concern that some other entity, whether public or private, might issue or seek to issue a civil investigative demand subpoena, or other demand or request for the documents held pursuant to the Protective Order. As you are fully aware, Section of the Protective Order authorizes the University of Virginia to disclose exempt information to two of A'i`l's counsel, in this case, me and Mr. Horner, and the scheduling order requires UVA to produce the documents to us on a date certain. Section ofthe Protective Older also authorizes disclosure of exempt information "only in connection with this action" "may be disclosed only as necessary in connection with this action to the individuals set forth below", which includes any other court of competent jurisdiction pursuant to lawful process or order. Frankly, we are perplexed by your concern. The language in the protective order is extremely clear. It specifically disallows releaseof the exempt information to anyone, including the-Attorney General and any court ofizompetentjurisdiction, unless the release is "in connection with this action." The only courts of competentjurisdiction contemplated under the Protective Order and in connection with this action would be the two Virginia appellate courts that might be asked to review the decisions of lower courts on this matter. As UVA is a party to this matter, it would have notice of any such disclosure long before it was made. Further, as required under the Protective Order, Section D, the parties have a duty to use as little exempt information as possible in any pleading, motion, exhibit or other paper tiled with the court and any such pt information must be tiled under seal, thus providing still another layer of protection to the exempt information, even to courts of competent jurisdiction beyond the Circuit Court. We are perplexed because we are continent you have already advised your clients that if the Attorney General issues a CID to us, or we receive some other demand forthe exempt documents under a lawful process or order from any court other that the one before which the Environmental Law Center Bl the American Tradition institute 2020 Ave. NW #t86 Washington, D-C. 20006 EXHIBIT 3 1? parties now Stand, Mr. Horner and have no option but to refuse the diselose the exempt information, making reference to the Protective Order. Mr. Homer and I have no duty or need any further attestation regarding this matter. Your demand is not merely unnecessary," it continues a pattem of behavior that has on some occasions expressly and, on others; impliedly called our professionalism and honor into question. 'lhat notwithstanding, however, if you insist on still another demonstration of our sincerity to act in a eontinuingiy professional- manner, we will provide that. First, however, we require you to openly admit in writing what you have repeatedly admitted in personal conversations and what you have never denied in public or in eourt. to wit, that you have advised those who reviewed the doeumentsito "broadly apply" the exemptions available under the Virginia Freedom of information Act. Once we receive that admission, Mr. Horner and 1 will be happy provide additional attestation that we have every intent to follow the Protective Order to the letter. ineerely, David W. Sehnare Director - The Environmental Law Center 2|Page RSITY RGIQNIA OFFICE aff,-is Gunmen, COUNSEL. Via Electronic mail September 20, 201 David W. Sclmare, Esq. The _Law Center at the American Tradition Institute 2020 Avenue, N.W. 136 Washington, D.C. 20006 Re: The American Tradition Institute The Rector and Visitors ofthe University of Virginia Civil Action.No. l-3236 Dear David: I am writing to tbllow up on the email I sent a week ago suggesting that we consider a change in the protective order and process for selecting samples to be used in our brieling ofthe relevant FOIA exclusions in the present case. Now that the Court has stayed delivery ofthe documents the University believes to be exemptpending the hearing on November it seemed timely for me to raise this issue with you again. in an attempt to. resolve the matter. We do believe the issues' raised by Dr. Mann and others in the scientific and scholarly community are significant and merit the Court'-s consideration. Therefore, we plan to move to reopen certain aspects ofthe Order as was specilically provided for in Section ("Right to Seek if we are unable to reach an acco mmodation through informal collaboration with you. The key issues that have been raised center onthe dual roles that you and Chris- play as both lawyers and founding members of ATI, and the fact that 'the very documents we believe are not subject to disclosure will nonetheless be provided to ,you in their entirety in your role as lawyers. No one need contend that either of you would violate the order to comprehend the concern that the order ailords you access to emails Bom members of-our faculty and researchers around the world that under our view ofthe case are clearly entitled to be protected as coniidential and private records under the Virginia OIA. It is also worth noting that Michael Mann and many other scientists have comnulnicated to us their 'belief that the disclosure ofthe exempt docurnents to you and Chris pursuant to the protective order seriously undercuts the entire purpose ot"Va. Code 2.2-3705 .4 (4) and violates both his privacy interests and the privacy interests of all of the other scientists mentioned in those documents. "in our phone call and in my email, we asked you to consider a potential alternative that we_ think would be both fair and practical. I want to summarize that suggestion more fully, especially as our own process _of review over the last three months has shown us the magnitude ofthe task that the present order will entail for both parties. Although there are many, many duplicates, the total number of documents we have identified as exempt are over twelve Madison Hall] RO. Box 400225 22904-4225 Phone: 434~924~358b EXHIBIT 20 thousand. Most ofthese documents are multipage. My rough estimate is that we are talking about 40,000+ "pages" of textual material. Our proposal would be to allow us to work through these records and identify an example or two of each typefmajor topic cf exchange found there that we believe to be exempt. We propose to remove personal identifying information from the message, but leave all other material intact to give you a robust understanding ofthe context and specific content. We would describe our understanding ofthe message categories "email exchange relating to the drafting and planning ofa grant pro_posal;" cr, "email exchange relating to manuscript submitted to a scholarly journal;" or, "email exchange discussirigresponsc to climate science sltepticsf' or "email exchange regarding topics to be debated at scicntitic meetit1g"). You could review the list of categories and the -samples and suggest other topics or issues you wanted to see a sample exchange on if such exists- We would represent to you as attorneys that the examples were a fair and complete set enabling both particsto make vigorous arguments about the status of such exchanges under the"v"irginia FOIA. It would also be possible to build into this process an independent review by a neutral person or magistrate appointed bythe Court if you were concerned that Rick and I should not decide on our own whether the examples we offered were comprehensive. That individual could have access to the entire document pool, enabling them to verily (probably through random sampling) that the examples you had received and categories described were appropriate. And ofcourse, the Court would also be able to _review anything it wanted to in camera. lt is cleat that the Virginia Supreme Court would expect a record containing all ofthe contested materials under the rmd_B{end decisions. As we suggested, this is ultimately an appellate- ease testing two very different theories about what rights- are protected (or not] under the Virginia FOIA. lt is hand for us to conceive why anyone would need or want to sort through -40,000 duplicative pages to make compelling arguments on what areftinite substantive appellate issues. Although it is not recent, in searching. for possible alternative mechanisms to cull documents forthe purposes of argumentation and appellate review in heedotn of information cases, -we found Vaughn v. Rosen, 434 F.2d 820 (D.C. Ctr. 1973) and its sequelae most instructive. Vaughn involves a protracted battle under the Federal Freedom of Information Act in which the D.C. Circuit -expressed considerable sympathy to the needs of plaintiffs in your position: In light of this overwhelming emphasis upon disclosure, it is anomalous but obviously inevitable that the pattywith the greatest interest in obtaining disclosure is at a loss to argue with desirable legal precision for the revelation ofthe concealed information. Obviously the party seeking disclosure cannot know the precise contents ofthe documents sought; secret information is, by definition, unknown to the party seeking disclosure. In many, if not most, disputes under the FOIA, resolution centers around the factual nature, the statutory category, ofthe information sought. 2 In a very real sense, only one side to the controversy (thc side opposing disclosure) is in a position confidently to make statements- categorizing information, and this case provides a classic example ofsuch a situation. Here the Government contends that the documents contain a personal nature the disclosure of which would constitute an invasion of certain individuals' privacy. This factual characterization may or may not he accurate. It is clear, however, that appellant cannot state that, as a matterof his know-ledge, this characterization is untrue. Neither can he determine if the personal items, assuming they exist, are so inextricably bound up in the bulk ofthe documents that they cannot be separated out. The best appellant can do is to argue that the exception is very narrow andplead that the general nature ofthe documents sought make- it unlikely that they contain such personal information, The Court then observed: [T]he trial court, as the trier of fact, may and often dom examine the document in camera to determine whether the Government has properly characterized the information as exempt. Such an examination, however, may he very burdensome, and is necessarily conducted without benefit of criticism and illumination by a party with the actual interest in forcing disclosure. ln theory, it is possible that a trial court could examine a document in sufficient depth to test tho accuracy of a government characterization, -particularly where the information is not extensive. But where the documents in issue constitute hundreds or even thousands of pages, it is unreasonable to expect a trial judge to do as thorough a job of illumination and characterization as would a party interested in- the "case, 'The court went on to order a "system of itemizing and indexing" of all the documents and remanded the case to the district court for the government to implement the process set forth in the opinio n. On remand, however, the government told the judge that given the numbers of documents involved, compliance with the indexing procedures recommended bythe Court of Appeals would take man-hours or 4.93 man-years, at a total cost to the Government of Accordingly, the district court held, a "realistic Solution to' the dilemma posed by the Court of Appeals became imperative." Vaughn Rosen, 383 F. Supp. 1049, 1052 (D.D.C. The solution arrived at, by agreement betvveen the parties, was the submission bythe government of nine representative samples of the information sought with identity-ing details deleted, The parties agreed that the court's decision on the nine representative samples would be determinative as to all ofthe documents sought. I think it is worth mentioning that the number of documents described in this -case was approximately "2,448, filling seventeen standard-size, five-drawer cahinets;" Ear less than the document count in our present situation. Although my hunch is that the per-document page Oollnt was likely more in Vaughn, the fact that the plaintiff (and the court) agreed to a very small representative selection .given the magnitude of the page count involved seems quite applicable here. 3 believe we all agree that our ease presents significant -and unique questions of substantive and ultimately, appellate law. Clear examples ofthe types of communications in contest would be very easy to identify fiom the thousands of emails identified by us as exempt. We hope you would be willing to discuss this alternative solution as I think it would save all of us a considerable amount of time better spent arguing these genuinely _important issues on their merits. Sincerely, Wifi/ Madelyn Wessel Associate General Counsel ce: Peter Fontaine, Esq. 4 Kast, Richard rck4 From: Dr. Schnare Sent: Thursday, September 29, 2011 12:54 PM To: Weasel, Nladelyn (mfw2y) Cc: Kast, Richard (rcl<4p) Subject: Re: Follow-up Conversation Madelyn: Frankly, we've had a particularly upsetting family crisis this past week and I am having a very hard time concentrating on those things beyond the family that demand my instant attention. Among other things, tomorrow is my last day as an employee ofthe U.S. EPA, and I've had to close out a large caseload as well as deal with all manner of federal records matters. Let's End time to talk next week. Suftice it to say, l've been intimately familiar with Vaughn for many years. As Rick may recall, I asked him quite some time ago whether he would be willing to prepare a Vaughn log. He declined. In any case, I understand what you want to do and I have given thought not unlike what we would have had to do, although we would have examined every email and surely have identified every one we believed demanded exclusion - more or less the reverse of your approach. Let me review your proposal. As you might imagine, my time next week (and forever thereafter, one hopes) will be my own. Propose a day and time. David. On Thu, Sep 29, 2011 at 12:41 PM, Wessel, lvladelyn (mfw2y) wrote: Dear David: Do you have time in the near future to discuss the proposal 1 sent you last week regarding an alternative reviewfculling process for the documents we consider exempt? Rick and I both have time at the end of today, if you happen to be available, or on Monday or Tuesday. Let us know your availability. Madelyn Madelyn Wessel Associate General Counsel EXHIBIT i 1 5 11 University of Virginia P.O. Box 400114 Charlottesville, VA 22904-41 14 Tel: 434-932-2941 2134-924-1431 wessel@virginia.edu David W. Schnare, Esq. Director The Environmental Law Center at ATI Kast, Richard rck4 From: Kast, Richard Sent: Thursday, September 29, 2011 2:20 PM To: 'Dr. Sehnare'; Wessel, Madeiyn (miw2y) Subject: RE: Follow-up Conversation David: We are both sorry to hear about your family crisis and hope things are resolving for your family. On Vaughn issue, what I rejected was, of course, the log/ indexing approach that was found to be wholly unrealistic and unworkable on remand due to the volume of documents involved, which we are also facing here. What we are proposing is inspired by the approach that was actually taken and worked in Vaughn. Finally, I must say that I am surprised and frankly disturbed by your revelation that you are just now leaving the EPA. You told me when we first met before the initial court appearance in Prince William County Circuit Court on May 24th that you had formerly been with the EPA and were then, and had been for a while, a private, public-interest lawyer. We had recently heard that perhaps you were still with the EPA and wanted to discuss this issue with you as it was so different from what you had told me and was a cause of concern to us on many levels. We should discuss this further when We talk. Madelyn and I are free at the following times next week and I hope one will work for you: Mon., 10/3 11:30-3:00 (11:30 would be ideal); Tue., 10/4 Wed., 10/5 9:00-12:00. - From: Dr. Schnare Sent: Thursday, September 29, 2011 12:54 PM To: Weasel, Madelyn (mfw2y) Cc: Kast, Richard (rclt-tp) Subject: Re: Foiiow-up Conversation Maclelyn: Frankly, we've had a particularly upsetting family crisis this past week and I am having a very hard time concentrating on those things beyond the family that demand my instant attention. Among other things, tomorrow is my last day as an employee ofthe .S. EPA, and l've had to close out a large caseload as well as deal with all manner of federal records matters. Let's iind time to talk next week. Suffice it to say, l've been intimately familiar with Vaughn for many years. As Rick may recall, I asked him quite some time ago whether he would be willing to prepare a Vaughn log. He declined. ln any CEEISC, I understand what you want to do and I have given thought as to howto do it as it is not unlike what we would have had to do, although we would have examined every email and surely have identified every one we believed demanded exclusion - more or less the reverse of your approach. Let me review your proposal. As you might imagine, my time next week (and forever thereafter, one hopes) will be my own. Propose a day and time. David. Exnierr 1 i 7_2 On Thu, Sep 29, 2011 at 12:41 PM, Wesscl, (n1l`w2y) eservicesvir inia.edu> wrote: Dear David: va Do you have time in the near future to discuss the proposal I sent you last week regarding an alternative review/culling process forthe documents we consider exempt? Rick and I both have time at the end of today, if you happen to be available, or on Monday or Tuesday. Let us know your availability. Madelyn' Madelyn Wesse] Associate General Counsel University of Virginia P.O. Box 4001 14 Charlottesville, VA 22904-4114 Tel: 434-982-2941 FAX: 434-924-1431 wesse1@virginia.edu David Sehnare, Esq. Director The Environmental Law Center at ATI 2 Kast, Richard rck4 . From: Dr. Sohnare Sent: Thursday, September 29, 2011 2:32 PM To: Kast. Richard (rck4p) Cc: Weasel, Madlyn (mfway) Subject: Re: Follow-up Conversation Rick: I have had authority from the agency to do pro bono public interest law for over 5 years now. That is what I represented to you. I never mention my EPA duties when am doing non-EPA work and I have never used EPA facilities for private work. Whenever we have been together, I have taken leave. The two lives are completely separate. I don't see how that poses any problem, but if you think it is worth discussion, please explain. As for the phonecall, let's do it at 1 1:30 Monday as that appears to be the time you most would like to do this. David.- On Thu, Sep 29, 2011 at 2:19 PM, Kast, Richard (rek?ip) wrote: David: We are both sorry to hear about your family crisis and hope things are resolving for your family. On the Vaughn issue, what I rejected was, of course, the log/ indexing approach that was found to be wholly unrealistic and unworkable on remand due to the volume of documents involved, which we are also facing here. What we are proposing is inspired by the approach that was actually taken and worked in Vaughn, Finally, I must say that I am surprised and frankly disturbed by your revelation that you are just now leaving the EPA. You told me when we lirst met before the initial court appearance in Prince William County Circuit Court on May 24th that you had formerly been with the EPA and were then, and had been for a while, a private, publicdnterest lawyer. We had recently heard that perhaps you were still with the EPA and wanted to discuss this issue with you as it was so different from what you had told me and was a cause of concern to us on many levels. We should discuss this further when we talk. Maclelyn and I are free at the following times next week and I hope one will work for you: Mon., 10/3 11:30-3:00 (11:30 would be idea1]; Tue., 10/4 Wed., 10,/5 9:00-12:00 EXHIBIT 1 2. 3 In The Matter Of: HE AMERICAN TRADITION INSTITUTE IQECTOR AND VISITORS Court September I6 201] EXHIBIT H939 ll) 1703] 12 In I IN THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY THE AMERICAN TRADITION INSTITUTE AND THE HONORABLE DELEGATE ROBERT MARSHALL versus CASE NO RECTOR AND VISITORS OF THE Defendants Manassas Frlday, September 16 2011 The above action came on to be heard before the Honorable Gaylord Jr a judge 1n and for the Clrcult Court for Prlnoe County, in Courtroom 4, Prmnoe County Judlolal Center, 9311 Lee Avenue, Manassas, 20110, at approximately 10:24 when there were present on behalf of the respective parties. I I I A - UNIVERSITY OF VIRGINIA. Inabnet Reporting Services f703\331-D212 APPEARANCES On behalf of the DAVID SCHNARE ESQUIRE PH Dlrector Envlronmental Law Center Amerlcan Tradltlon Institute 2020 Avenue Sulte 186 Wash1ngton 20005 (571) 243 7975 On behalf of the Defendants ROBERT COOPER ESQUIRE Stephens Pr1meau Cooper Coleman 9255 Lee Avenue Manassas V1rg1n1a 20110 Emall Coop@manassas1aw com (703) 361 8246 AND PETER FONTAINE ESQUIRE Cozen O'Connor 457 Haddonfleld Road - - I NW rr Email: David.S@atinstitute.org Inabnet Reporting Services 1'/nm 231.0919 Sulte 300 Cherry H111 New Jersey 08002 Emall Pfonta1ne@cozen Com (856) 910 5043 On behalf of the of RICHARD KAST ESQUIRE MADELYN WESSEL ESQUIRE Offlce of the General Counsel V1rg1n1a 22904 Emall Wessel@V1rg1n1a edu (434) 982 2941 THE PROCEEDINGS Page 4 I I None P.0. Box 400114 Inabnet Reporting Services {703\ 331-0212 5 forth, and file our brief. That takes us into December. If we can get a date in early November in which you w11l hear our mOt1On, you have the rest of November and a good portlon of December 1n whloh to conclude whether or not he 15 proper at and he won't have our brlef untll after you make that declsion In any case matter has been golng on for over four months now our argument the protectlve order 13 very We are publlc opinion For example ACLU I heard Justlce Wendy Slerra Sloth Republlcan Sloth (PH) No one has ever argued that Mr Horner and I are and would release this materlal only have one person who can relea that Your Honor Now because of some dispersmons cast we want to make lt clear Your Honor I have been a federal prosecutor on envlronmental issues I have had access to extremely buslness informatlon If I were a corrupt man I would not be here today on cash games and ret1r1ng in Bermuda and that is youInabnet Reporting Services f703\ 331-0212 Kast, Richard rck4 From: Dr. Schnare Sent: Monday, October 03, 2011 9:02 AM To: Kast, Richard (rck4p); Weasel, Madelyn (mfw2y) Subject: Phone call agenda Rick and Madelyn: In preparation for our ll:30 phonecall, 1'd like to suggest the following agenda. l. You explain the "so many-"levels" on which you have concern, and the nature of the concern about the fact that I was an employee of EPA, operating under an outside employment waiver, prior to October l, 2011; and, keeping in mind that while I explained that I had worked for EPA, I never made a specific statement as to my current employment other than as to my pro bono representation in the instant case and my general responsibilities for ATI, and had every good and ethical reason to say no more. 2. You explain how our in camera, review which prohibits any public disclosure of the emails or content of the emails "undercuts the purpose 'of when the purpose ofthe FOIA is to permit government transparency to all interested citizens per code cited here: ?2.2-3700. Short title; policy. B. By enacting this chapter, the General Assembly ensures the people of the Commonwealth ready access to public records in the custody _pf a public body or its oflicers and employees, and free entry to meetings of public bodies wherein the business of the people is being conducted. The affairs of govemment are not intended to be conducted in an atmosphere of secrecy since at all times the public is to be the beneficiary of any action taken at any level of government. Unless a public body or its officers or employees specifically elect to exercise anexemption provided by this chapter or any other statute, every meeting shall be open to the public and all public _records shall be available for inspection and copying upon request. All public records and meetings shall b?ipresumed open, unless an exemption is properly invoked. The provisions of this chapter shall be liberally construed to promote an increased awareness by persons of governmental activities and afford every opportunity to citizens to witness the operations of government. 3. Explain how UVA is in the same position as the document custodian in Vaughn. In that case, the custodian was required by the court to create a log, but chose to negotiate a lesser duty. Here, you refused to, and are not required to create a log, but recognize that the same problem raised in Vaughn hampers justice in the instant case. In light of that, you negotiated to a lesser duty by shifting the duty to create a log to the Complaintant, who accepted the responsibility. Because we are willing to do the work a federal court would require a federal custodian to do, and because the documents are under seal and their contents may never be disclosed, but for a court order, you have no duty leli that disposes you to seek a lesser duty and are not in the position ofthe Vaughn defendant. 4. Discuss what constitutes aircasonable sample of documents, what categories of documents make sense, and how to deal with documents we know are within the collection, but which you may not tind by sampling, or otherwise choose not to include (because they would embarass the University or Mr. Mann). 0 EXHIBIT 1 Sincerely, David -W. Schnaxe, Esq. Director The Environmental Law Center at ATI 571-243-7975 sri" 5? UNITED STATES ENVIRGNMENTAL PROTECTION AGENCY WASHINGTON D.C.. 20460 *fit motff?dl .. 6 OFFICE OF GENERN. COUNSEL Mr. Peter J. Fontaine Cozen O'Ccnnor 457 Haddonfield Road Suite 300 Cherry Hill, NJ 08002 Re: Freedom of Information Request 1 0* 544 Dear On behalf of the Environmental Protection Agency, I am writing to respond to the above referenced Freedom of Infomation Act request. You seek documents related to any request for Mr. David Schnare to represent the American Tradition Institute or any other entity with respect to a particular lawsuit. Mr. Schnare, who retired from federal service effective Friday, September 30, 20-1 1, was employed as an attorney-advisor in the Office of Enforcement and Compliance Assurance. As such, he was subject to the Standards of Ethical Conduct for Employees ofthe Executive Branch, 5 C.F.R. Part 2635, and the US. Environmental Protection Agency's supplemental regulations, 5 C.F.R. Part 6401. In order to engage in outside activity that involves the practice ofa profession or that deals in significant part with any ongoing Agency program, policy or operation, Mr. Schnare was required to seek prior approval from his Deputy Ethics Official. 5 C.F.R. 2634.801 and 5 C.F.R. ?640l.lO3. Enclosed please find the documents that EPA has related to this activity. The request for approval ofthe outside activity was purportedly prepared by Mr. Schnare on or about November 16, 2010, but neither his Deputy Ethics Official nor his Assistant Deputy Ethics Official has any record of receiving it or approving this request to engage in the outside activity. Although the Agency could assert the deliberative process privilege regarding the release of these documents, we see no reason to do so. There is no fee associated with your request. Please feel free to contact me at (202) 564 1786 if you have any further questions. Sincerely yours, Justine ugh Senior Counsel for Ethics Enclosure EXHIBIT Fw: fyi re David Schnare Jeanne Dumso to: Justine Fugh 10:11 AM Justine, As we discussed, here is the request that David forward ed to Phil Brooks this morning. I have a meeting with Phil to discuss the matter and will meet with David after that. -Jeanne Jeanne M. Duross Attorney-Advisor Special Litigation and Projects Division 31 11A, Adel Rios South U.S. EPA (202)564-6595 May contain confidential information for internal deliberation, attorney-ciient information, andior attorney work product. -- Forwarded by Jeanne on 09!29f2011 10:10 AM From: Phillip To: Jeanne Dale: 09:40 AM Subject: re David Schnare ls_ this all he needed? Phiilip A. Brooks, Director Air Enforcement Division 1200 Ave. N.W. Washington, DC 20460 Phone: (202) 564-0652 Fax: (202) 564-0015 -- Fulwarded by Phillip BFOFHSIDCIUSEPNUS on 091292011 09139 AM From: To: Date: Subject: David Phillip 09!29f2011 09:15 AM Re: Dave Yes. I tiled a waiver request lt's attached. At the time, was called WTI. d. if lf: WTI outside employment requestdocx David W. Schnare, Esq. 202-554-4183 Phiitip Broolge USA Today called asking whether you got 0 wat.-. 0912812011 03:38:39 PM From: Phillip To: David Date: 09,f28f2011 03:38 PM Subject: Dave USA Today called asking whether you got a waiver allowing you to represent TFIL they are requesting copy ofthe waiver. Do you have a copy handy? ls there one? Phillip A. Brooks, Director Air Enforcement Division 1200 Ave, N.W. Washington, DC 20460 Phone: (202) 564-0052 Fax: (202) 564-0015 ww sn, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY ,ttf it i wasurnorou, o_o. 20460 tt, re' ?0 'li Office of Enforcement and Compliance Assurance MEMORANDUM Date: November 16, 2010 From: David W. Schnarc, Esq. Attorney-Advisor Air Enforcement Division Thru: Greg Fried, Acting Chief Stationary Source Enforcement Branch Air Enforcement Division To: Adam Kushner, Director Deputy Ethics Officer Office of Civil Enforcement Subject: Approval for Outside Employment - Pursuant to 5 C.F.R. 6401 and 5 C.F.R. 2635, this memorandum seeks prior approval for outside employment. In accord with the above cited code and implementing regulations, please review the following infomation and provide approval for participation as a pre bono associate ofthe American Traditions Institute. information Required under 6491.103 (1) Employees name, title and grade David W. Schnarc, Attorney-Advisor GS 15110 (2) Nature of the outside activity, including a full description of the services to be performed and the amount of compensation expected; The American Tradition Institute is a 50l(c)3 not-for-profit charitable public policy research educational and public interest law foundation. It exists to lead a national discussion about environmental issues, including air and water quality and regulation, responsible land use, natural resource management, energy development, property rights, and free-market principles of stewardship. I have been asked to serve, pro bono, as a EXHIBIT i :av Director to the Institute and to help organize its planned law center. My duties as an Institute Director will include fund*-raising. My duties with the lw center could include development of strategic plans, selection of projects and recruitment ofstafti My duties would not include any representation at law of the institute or its members. Institute and affiliated attorneys will conduct all representation of any matters at law. (3) The name and business of the person or organization for which the work will be done (in cases of selilemployment, indicate the type of services to be rendered and estimate the number of clients or customers anticipated during the next 6 months); The American Tradition Institute, a 50l(c)3 not-for-profit charitable public policy research, educational and public interest law foundation. (4) The estimated time to be devoted to the activity; Fifteen hours per week. (5) Whether the service will be perforrned entirely outside of normal duty hours (if not, estimate the number of hours of absence from work required); All services will be performed entirely outside normal duty hours. (6) The employees statement that no official duty time or Government property, resources, or facilities not available to the general public will be used in connection with th outside employment; will use no ofticial duty time or Government property, resources, or facilities not available to the general public in connection with the outside employment. (7) The basis for compensation fee, per diem, per annum, etc.); My participation will be completely pro bono. (S) The employees statement that he or she has read, is familiar with, and will abide by the restrictions described in 5 CFR part 2635 and Sec. 640l.102; Ihave read and am familiar with, and will abide bythe restrictions described in 5 CFR part 2635 and Sec. 6401.102 (9) An identification of any EPA assistance agreements or contracts held by a person to or for whom services would be provided. The American Tradition Institute does not accept grants from or enter contracts with federal governmental units. I am unaware of any assistance agreements or contracts between EPA and American Tradition institute, despite a good faith effort to identity same. 'vi4151 =dfV1- Home Business 1 Elections Licensing Presetn1Joi_itUSIContnt:tt15 For this Record Cert 01' Good Standing File a Document Subscribe Email Notification Unsubscribe Email Notification 1? An mricziri Tratdition [nstitute Business Home Business Business Search History and Documents Found 15 matching record(s). Viewing page 1 of 1. FAQS, and 11 Event Date Flled gagged Efiectivenete if) Comment 1 Articles of 0211112009 0211112009 0211112000 10:24 PM 2 Articles 0310412009 0310412009 03101112009 05:58 AM 20091130060 3 Articles 01 Amr.-ndrnent 0611712009 0611712009 0611712009 02:53 PM 20001331270 4 Articles 01 0812712009 0812712009 0812712009 01:13 PM 2_0091d5B4_65_ 5 postcard notification printed 0112612010 0112612010 0112012010 04:23 AM annual report due: 0112612010 tn ie-ra mailed 0210112010 0413012010 6 Eltinrige in Sta; 0510112010 0510112010 0510112010 01254 AM Failure to file annual report 7 printed 0512112010 0512112010 0512112010 03:08 AM annual report due: 0512112010 to :ze rnai1ed 0610112010 2010-07-31 8 Change in Status 0810112010 0810112010 0810112010 02:34 AM Faiture to 1ile annual report 9 postcard n0ti11r:;itiori printed 0810112010 0810112010 0810112010 02:57 AM iailure to lile annual 0131011201010 10 rrtEti|0d1|1iS month report 10 Statement Curcig 1010112010 1010112010 1010112010 00:09 PM 20101545015 11 Articles 1211812010 1211812010 1211812010 01:25 PM 20101635751 Chang00fEr11i1y Name 12 Alfidavit 1Or of i"erSOna1 1212012010 1212712010 1212012010 04:01 PM 20101 GBBM4 Identifying 13 01 001190 1212012010 1212012010 1212012010 04:04 PM 20101688158 14 'zltzateiiwcntoi (T "cation 0311712011 0311712011 0311712011 04:05 PM 20111163183 Principal address corrected; 0912312011 0912312011 0912312011 02:52 AM periodic report due: [0 1 1: 1010112011 1213112011 r1m_Lqi In Searth 1 01 ii i i 2.5 Document must be tile Colorado Secretary of State nate and Time: 02/l 10009 10:24 PM fl ro nnumber; 20091 09|-437 Paper documents will not be occepteti. Document processing fee $50.00 Document number! 20091091487 Fees sheets Amgunt Paid; $5000 are subject to chan ge. To access other information or print copies of filed doeun visit tents, 0.l|S and select Business Center. I: POR t'}FFlCii USE ONLY Articles of Incorporation for a Nonprofit Corporation filed pursurtnt to and 7-I22-102 ofthe Colorado Revised Statutes (C.R.S.) i. The domestic entity name tor the nonprofit corporation is Western Tradition Institute {Cmrt'i0n: The or crr'1br'evfafion5 are restricted by lun-_ Reurr'inSrr1rc!ions'for more 2. The principal ottice Street address address of the nonprofit corpo1'ation's initial principal office is 2535 Franklin St [Sn-eer and rrarrtc) Denver CO 80205 I Ware Code) United' States - Mailing address P0 BOX 33 (IQHVC blank ifiil m6 EIS (Street unrl' norms or Frist Box Denver CT 80201 rcrm; rrigfgg Code; (Provirrce - H- fCormrr3;) 3. The registered argent name :ind registered agent address of the nonprofit corporatiorfs initial registered agent Name (ifan Reed John (Liner) (Fr`ri?fJ (Suffix) OR (ifan entity) (Caution: Do rio! pmvirff: from rm uric! rm entity Street address 2535__tf_rankIin Street |"SJ'rec't mrmber nm! name) - - --1- Denver CQ 80205 (City) -W (Stare-'J (ZIP Code) Page i o1`3 Rev. 021283008 Mailing audi-ess P0 BOX 83 . (leave blank lf Same as St: t:Ct (Street oi' Pos! (Wire Box Denver C0 sczos i'.S'turc) (ZIP Code) .rfnreiiuvif is hry the box.) The person appointed ns registered agent above has consented to being so appointed. 4. The true name and mailin address of the incorporator are Name (ifan individual) Dan t'Fff'5 l) rhfidtilej on (ifan entity) D0 not prrivide on arid rm enriry firmly.) Mailing address _Eigwaox 83 (?S`rreer rrumber and name or Pos: Box Denver CO 80201 |"L`ify) {tS?n3eJSta1e (ZH"fPo.sral' Code) (Province ifirpplieirblej rtfotinrajri) statement ryipfics. adopt the stuteureur by rnnriririg the box and include on alms-lament.) lj The corporation has one or more additional incorporators and the name and mailing address of each additional incorporutor are stated in an attachment. 5- fifth? fhi'l0u'ing ?rppJ'1'e-5, .-:dept rfre srotemwrl (qv the The nonprofit corporation will have voting members. 6. smiemenr is oi- mmkiirg the box.) - Provisions regarding the distribution of assets on dissolution are included in an attachment. 7. (U irp}r.fics. the ,statement by marking rim bor and rm This document contains additional information as provided by law. 8. Leave Malik ijfrire rm! a effective dare. Stnfilrg 0 deiqised effeon've date has .significant .legal Rumi before enfering a flare.) applies, nrfopt the hy wrlering ri dare iriml time u.ring :lie The delayed effective date and, ifapplicable, time of this document isfare ho otice Causing this document to be delivered tothe Secretary ol`Statc for filing, shall constittlte the affirmation or acknowledgment of each individual causing such delivery. under penalties of perjury, that the document is the individuals act and deed, or that the individual in good faith believes the document is the act and deed ofthe person on whose bcbalt` the individuel is causing the document to be delivered for filing. taken in confonnity with the requirements of part Q3 otarticle 90 of title 7, the constituent documents, and the organic statutes, and that the individual iu good faith believes the facts stated in the document are true and the document complies with the requirements of that Part. the constituent documents, and the organic statutes. aaru~tc_nPc Page 2 ofa asv, ozosfzoes This perjury notice applies to each individual who causes this document to be delivered to the Secretary of State, whether or not such individual is named in the document as one who has caused it to be delivered. 9. The true name :ind mailins; address of the individual causin the document to be delivered for filin are Fit??d John (Mi'a'dic) PO Box 88 farm' :mute or Pgayf Offifg Bm- Denver CO 80201 rata: Cn da; United States - ifirppiic-table) (Counting) statement adopt the .smremmir fn: man-king :he hm' mid' an This document contains the hue name and mailing address of one or more additional individuals Causing the document to be delivered for Disclaimer: This fomifeevcr sheet, and any related instructions, arc not intended to provide legal, business or tax advice, and are furnished witliuut representation or warranty. While this sheet is believed to satisfy minimum legal requirements as nl` its revision date, compliance with applicable law, as the same may be amended nom time to time, remains the responsibility of the user of this formfcover sheet. Questions should be addressed to the uscr`s legal. business or tax adviselisi. Page 3 0i'3 Rev. 02f28F2008 WESTERN TRADITION PARTNERSHIP DISSOLUTION CLAUSE Upon dissolution, all assets shall be distributed to an organization(s) organized and operated exclusively for charitable purposes, as specified in section 214, and which has established its tux exempt status under section 50l(c)(3) of the Internal Revenue Code, or under section 23701d of the Revenue and Taxation Code. Colorado Secretary ot`Statc one and Time: cs/04/zoos o5?5s AM Document processing fee b. 2009] 091487 Ifuccument is tiled on paper stzsoo um cr' If document is filed electronically 25.00 Document number: 20091130060 Fees sheets Amount Paid; $2500 are subject to change. To tile electronically, access instructions for this formfcovcr sheet and other information or print copies ot tiled documents, visit and select Business Center. Paper documents must be or machine printed. aaovs roitonics use can Articles oi' Amendment filed pursuant to l, et seq. and ofthe Colorado Revised Statutes ID number 20091091437 Entity m_,me Western Tradition institute the Horne of the inft'ir'rtre name BEFORE the name change) 2. New Entity name (ifapplicahlc) 3. (ff rzdopr the by rrzruritirtg the box and include an otrtachrnent) Other amendments are attached. 4. lfthe nonprolit corporations period of duration as amended is less than perpetual, state the date on which the period of duration expires OR If the nonprofit corporations period of duration as amended is perpetual, mark this box 5. (Opticnai) Delayed effective date 02/1 6. Additional information may hc. included pursuant to other organic statutes such as title 12, C.R.S. If applicable, mark this hox and include an attachment stating the additional information. Notice: Causin3 this document to he delivered to the secretary of state for filing shall constitute the affirrnation or acknowledgment oi each individual causing such delivery, under penalties of perjury, that the document is the individuals act and deed, or that the individual in good faith believes the document is the act and deed ofthe person on whose behalf the individual is causing the document to he delivered for tiling. taken in conformity with the requirements of part 3 ofarticie 90 oftitie 7, (T.R.S., the constituent documents, and the organic statutes, and that the individual in good faith believes the facts stated in the document are true and the document complit-< wi th the requirements of that Part, the constituent documents, and the organic statutes. This perjury notice applies to each individual who causes this document to be delivered to the secretary of state, whether or not such individual is named in the document as one who has caused it to he delivered. Rev, of! 7. Name(S) and of ilie individuel(s) eiiusin?g the dneunient to be delivered filing John Reed (First) 2535 Franklin St. name mm' mimiier or Qiffice Brix Denver CO 80201 Code) United States (Provfirre MZUS) (Tire cfrwufniefril mia-'-rr' mir Ihr :rue :mme Urlid ver, yur; ivivh rn rise name and address an .s can ng I rf rorrmiffirf fo be mm-ir rhis box El and .Fm:'Jurfe ur: slafing Ike Ofilnjf' Ucfdiriorrd 'f _wi l' I name and uddrim qf_suc'fi Disclaimer: This form, and any related instructions, are not intended to provide legal, business or tax advice, and are offered as a public service without representation or warranty- While this form is believed to satisfy minimum legal requirements as of its revision date, compliance with applicable law. as the same may be amended from time to time, rcumiris responsibility ofthe user nftliis ibrm. Questions should be addressed to the user's attorney. Rev. lfl5!2005 2 ot`2 RESOLUTION APPROW NG AMENDMENT OF THE ARTICLES OF INCORPORATION WHEREAS, pursuant to the application and Bylaws of this Corporation, it is deemed desirable and in the its best interests that the following revision be taken by this corporation pursuant to this written Consent: NOW THEREFORE, BE IT RESOLVED: That Western Tradition institute erred in indicating in its initial filing that it would have voting members and that indeed, it does and shall not, but shall be governed by a Board of Directors yet to be named. Said and done this 13m Day oz' February, 2009 by John Reed, incorporator. r/Mi Colorado Secretary of State one and Time: otstivxzooa 02:53 PM Number: 20091 091487 Document processing fee If document is tiled on paper $125.00 lfdocument is filed electronically 25.00 Document number: 20091331276 Fees l`orms/cover sheets Amgunt Paid; $2500- are subject to change. To tile electronically, access insuuctions for this form/cover sheet and other information or print copies ot" tiled documents, visit t_e.eo.us and select Business Center. Paper documents must lie typewritten or machine printed. snort st-are t-ottot-vtctiescostt' i Articles of Amendment tiled pursuant to ti?-913-30i, et seq. and ofthe Colorado Revised Statutes iD nulnber Entity ,mme Western Tradition institute the name qfrite Home name 2. New Entity name if applicable) 3. rt,opiit~s_ adopt the .rtafentent by ntatiling the box and an attachment.) Other amendments are attached. 4. non roiit cor or;ttion`s eriod of duration as amended ts less than perpetual, stale the date on which the period of duration expires OR lfthe nortprotit cot-if. period ot`dut'ation as amended is perpetual, mark this box 5. (Optional) Delayed et`tective date 6. Additional intiuntatiorz may tie included pursuant to other organic statutes such as title 12, C.R.S. If applicable, mark this ox Il] and include an attachment stating the additional information. Notice: Causing this document he delivered tothe secretary of state for tiling shall constitute the affirmation or acknowledgment ot`eae1_ indivitlual causing such delivery, under penalties of perjury, that the document is the individuals act and deed ot' that the individual in good faith believes the document is the act and deed of the person on whose individual is causing the document to be delivered for tiling, taken in conformity with the reqttiretnents ot' part 3 oiattiele 9U of title 7, the constituent documents, and the organic statutes, and that the in good faith believes the facts stated in the document are true and the document complies witl ifie of that Part. the constituent documents, and the organic statutes. This perjury notice applies to each individual who causes this document to be delivered to the secretary of state, whether or not such individual is named in the document as one who has caused it to be delivered. Rev. 512005 ot' 2 7. Namc(s) and ziddress ol' the individual(s) caiusing _ic dotrumctit to be delivered for lil Eng Marlo Daniel ll (Lust) Mm t'Ffr1s'rj 1 601 Blake St (Street name and number or Pos! Office Bm- - Suite 310 Denver CO 80202 (gilt-'J |'iP0sfaf!Zip Code) United States - rw! US) no: ite' the _'rue mm' qfnifirv than one Hrm-ever. yen: ivfxir In .ware the Hume and address' ifrdm' ls fha' ro bt' mud this box and inc-Jude tm the Hume and adciresw fi Nadi Disclaimer: This form, and any instructions, are not intended to provide legal, business or tax advice, and are offered as a public without representation or wamamy. While this form is believed to satisfy minimum legal requirements as of its revision date, compliance with applicable law, as the same may be amended from time to time, rt-mains th- responsibility ofthe user ofthis form. Questions should be addressed to the user's attorney. Rev, I M2005 2 of2 WESTERN TRADITION INSTITUTE 2535 Frankiin St Denver, CO 80205 Addcriduni l, Articles ol" incorporation (Non-Protit Corporation) Article II ofthe bylaws for INSTITUTE provides for distribution upon dissolution as follows: ARTICLE Il. PURPOSES Section 2_1 'This corporation is organized exclusively for charitable purposes defined as education, study, and dissemination of information pertaining to its field of interest, within the meaning of Section 501(c)(3)of the Internal Revenue Code, as now enacted or hereof: cr amended, including, for such purposes, the making of distributions to organizations that also qualify as Section 50 exempt organizations. To this end, the corporation shall publish studies in print or on the internet, make presentations, and otherwise and in any manner participate in the educational and scientific process. All funds, whether income or principal, and whether acquired by gift or contribution or otherwise, shall br devoted to said purposes. Section 2_1 This organization shall not engage in the advancement or defeat of political canditlatcs or oflegislation. Article ll of the liyiriws for WESTISRN INSTITUTE provides for distribution of assi.-as upon dissolution as follows: ARTICLE MISCELLANEOUS Section Dissolution. Upon dissolution, all assets shall be distributed to an orrianizcd and operated exclusively for charitable purposes, as specified in section 2 I 4, an wliicli has established its tax exempt status under section 501(c)(3) of the Code, or under section 237(lId ofthe Revenue and Taxation Code. Colorado Secretary of State one and Time: 10/01/2010 0s;09 PM Document must be filed electronically. -Number. 20091091487 Paper documents will not be accepted. Document processing fee 100.00 Document number: 20101545015 Fees forms/cover sheets Amgu nt Paid; are subject to change. To access other infomation or print copies of tiled documents, visit and select Business. ABOV SPACE FOR OFFICE USE ONLY . Statement Curing Delinquency f'd pursuant to ?7-904104 of the Colorado Revised Statutes (C.R.S) 1. For the delinquent entity, its ID number, entity name and jurisdiction of formation are ID numbgr 20091091487 (Colorado Secretary of Stare lD number) Entity name Western Tradition Institute Jurisdiction where formed C0|0f3d0 2. By providing the information required herein, this statement corrects all grounds for delinquency cited by the secretary of state. 3. The registered agent name and registered agent address of the registered agent are Name (ifan individual) Reed Jeho (Last) (Finn) (Middle) (Saga) on (if an entity) a ation: Do not provide both an individual and an enriljv name). The person appointed as registered agent above has consented to being so appointed. Street address 1 ke (Street number and name) Suite 301 Denver C0 80201 (Cirv) (Slate) (Zip Code) Mailing address PO BOX 88 (leave blank if Same as Street address) (Street number and name or Post Ojjice Box information) Denver CQ 80201 rcny; asian; (zip Code) (U the following .srarernenr applies, adopt' the statement by marking the box.) lj The mailing address in the records of the Secretary of State is no longer different than the street address and is no longer required. Page 1 ef 3 Rev. 5l0ll20lD 4. The principal ofiice address ofthe entity's principal office is address (Street number and name) Sulle 301 Denver CO 80202 (City) (State (P stat'/Zip Code) Umted) States 0 (Province - tfoppiicabie) (Country - ifnot US) Mailing address P0 BOX 38 (leave blank ifsame as Street address) (Street number and name or Post Ojice Box information) Denver CO 80202 (City) (St te (Po tai/Zip Code) Unlted States 3 (Province - Uappiicubie) (Country - ifnot US) (ifttrefoiiowing statement appiies, adopt the statement by marking the box.) The mailing address in the records of the Secretary of State is no longer different than the street address and is no longer required. 5. (Uthefoiiowing statement applies, adopt the statement by marking the box and inciude an attachment.) lj This document contains additional information as provided by law. 6. (Caution: Leave bianic #the document does not have a deioyed effective date. Stating a delayed ejfecti ve date has signbicant iegai consequences. Read instructions before entering a date.) fifthefoiiowing statement appiies. adopt the statement by entering a date and, ifappiicabte, time using the required format.) The delayed effective date and, if applicable, time of this document is/are hounminute am/pm) Notice: Causing this document to be delivered to the secretary of state for filing shall constitute the affirmation or acknowledgment of each individual causing such delivery, under penalties of perjury, that the document is the individual's act and deed, or that the individual in good faith believes the document is the act and deed of the person on whose behalf the individual is causing the document to be delivered for tiling, taken in conformity with the requirements of part 3 of article 90 of title 7, C.R.S., the constituent documents, and the organic statutes, and that the individual in good faith believes the facts stated in the document are true and the document complies with the requirements of that Part, the constituent documents, and the organic statutes. This perjury notice applies to each individual who causes this document to be delivered to the secretary of state, whether or not such individual is named in the document as one who has caused it to be delivered. 7. The true name and mailing address of the individual causing the document to be delivered for filing are Reed Joh (Lost) (First) (Middle) PO Box 88 (Street numirer ana' name or Post Ojice Box information) Denver CO 80201 (City) (State) (Postal/Zip Code) (Province - Uappiicabie) (Country - not US) i Page 2 oI`3 Rev. 510112010 (Hrhefoilowing sraremenr applies, adopt the statement by marking the box and fnciude an atmehmem.) This document contains the true name and mailing address of one or more additional individuals causing the document to be delivered for filing. Disclaimer: This form/cover sheet, and any related instructions, are not intended to provide legal, business or tax advice, and are furnished without representation or warranty. While this form/cover sheet is believed to satisfy minimum legal requirements as of its revision date, compliance with applicable law, as the same may be amended from time to time, remains the responsibility ofthe user of this form/cover sheet. Questions should be addressed to the user's legal, business or tax advisor(s). CUREMDLQ Page 3 of3 Rev. 5!0lf20I0 Colorado Secretary of State Date and Time: 12/18/2010 01:25 PM Document must be tiled electronically. . ID Number: 20091091487 aper documents will not be accepted. D0f;I;1?nl tjretressilag fee $25.00 Document number: 20101685751 ees orms cover eets A are subject to change. al INFORMATION To access other information or print REDACTED copies of tiled documents, visit and select Business. snow; sence ron omcs use erm Articles of Amendment filed pursuant to ?7-90-301, et seq. and ?7-130-105 of the Colorado Revised Statutes (C.R.S.) ID number 20091091487 1_ Emjly name, Western T|'aditi0n institute if/' changing the name ofthe corporation, ina'icare name BEFORE the name change) 2. New Entity name of applicable) American Tradition Institute 3. (If the following statement applies, adopt the statement by marking the box and include an attachment.) lj Other amendments are attached. 4. if the nonprofit corporation's period of duration as amended is less than perpetual, state the date on which the period of duration expires OR if the nonproht corporation's period of duration as amended is perpetual, mark this box 5. (Optional) Delayed effective date 6. Additional information may be included pursuant to other organic statutes such as title 12, C.R.S. If applicable, mark this box and include an attachment stating the additional information. Notice: Causing this document to be delivered to the secretary of state for tiling shall constitute the affirmation or acknowledgment of each individual causing such delivery, under penalties of perjury, that the document is the individual's act and deed, or that the individual in good faith believes the document is the act and deed of the person on whose behalf the individual is causing the document to be delivered for filing, taken in conformity with the requirements of pan 3 of article 90 of title 7, C.R.S., the constituent documents, and the organic statutes, and that the individual in good faith believes the facts stated in the document are true and the document complies with the requirements of that Part, the constituent documents, and the organic statutes. This perjury notice applies to each individual who causes this document to be delivered to the secretary of state, whether or not such individual is named in the document as one who has caused it to be delivered. Page of 2 Rev. 5l0l!20l0 7. Name(s) and a.ddress(es) of the individual(s) causing the document to be delivered for filing ffm; (Firm (Madam fsufru; 1601 Blake Si 301 (Street name and number or Post Ojice Box information) Denver CO 80202 (Cry) Liftare) (P rolrzr' Cod United States 05 I (Province - ifapplicoble) [Country - ffnor US) (The document need not stare the true name and address of more than one irrdividuoi. However, ffyou wish ro stare the name and address ofany additional iridivtlduols causing the document to be deliveredforjilfng. mark this box and include an arrachmenrsraring the name and address ofsuch individuals. Disclaimer: This form, and any related instructions. are not intended to provide legal, business or tax advice, and are offered as a public service without representation or warranty. While this form is believed to satisfy minimum legal requirements as of its revision date, compliance with applicable law, as the same may be amended from time to time, remains the responsibility of the user of this form. Questions should be addressed to the user's attorney. Page 2 sr: Rev. sm:/20:0 Document processing fee: FREE Fees forms/cover sheets get a_ 1 48144 are subject to change. QFFPII UF STQTE Paper documents must be typewritten or machine printed. some space ron office use ont .Statement of Removal of Personal Identifying Information tiled pursuant to? 7-90606 ofthe Colorado Revised Statutes I My name is Mario Nicholas 1 am i8 or more years of age. Pursuant to 7-90-306, C.R.S., I am duly authorized to deliver a written request to the Colorado Secretary of State to remove personal identifying information from the publicly accessible documents and other records of the Secretary of State. 2. The ID number of the record containing a publicly accessible filed document that contains personal identifying information is 20091091437 The entity name, trade name, or trademark description to which such record relates is American Tradition Institute 3. The document number ofthe filed document that contains personal identifying infonnation is 201 01635751 4. The type of personal identifying information requested to be removed from such document is Name of the individual causing the document to be filed (Crintion: Do no! restore the personal' iri'entWi?ng infomation reqireued to be retrieved) 5. The personal identifying infomation to be removed is not required by law to be included in such document or othe records of the Secretary of State. 6. The location of the personal identifying information in the tiled document described above is Paragraph 7 7. I understand that this document may be tiled in the publicly accessible records and I consent to such tiling bythe Scretary of State. 8. if the Secretary of State refuses to tile this document, notice of such refusal may be delivered to the following mailing address: 1601 Blake Sl Suite 3310 (Street number and :mme or Post Ojice Box info:-nmtion) Denver CO 80202 (Store) (ZIP/Posrnf Code) (Pi-oi-ince - (Conm'i3;l Page ofl Rev. Notice: Causing this document to be delivered to the Secretary of State for tiling shall constitute the affirmation or acknowledgment of each individual causing such delivery, under penalties ofperjuiy, that such document is such individual's act and deed, or that such individual in good faith believes such document is the act and deed ofthe person on whose behalf such individual is causing such document to be delivered for filing, taken in conformity with the requirements of part 3 of article 90 of title 7, C.R.S., and, if applicable, the constituent documents and the organic statutes, and that such individual in good faith believes the facts stated in such document are true and such document complies with the requirements of that Part, the constituent documents, and the organic statutes. This perjury notice applies to each individual who causes this document to be delivered to the Secretary of State, whether or not such individual is identified in this document as one who has caused it to be delivered. 9. The true name and mailing address ofthe individual causing this document to be delivered for filing are Nicholas Mario (Last) (FTMJ) (Middle) (Sujir) 1601 stake si 301 (Street mrmhar and or Pos! Ujjice Box infonmrrion) (City) (Stare) (ZIP/Porta! Code) (Province -- applicable) adopt rhefaliotving .rrntenrent by ninrking the box and include an This document contains the true name and mailing address of one or more additional individuals causing the document to be delivered for tiling. Disclaimer: This funn/cover sheet, and any related instructions, are not intended to provide legal, business or tax advice, and are furnished without representation or warranty. While this formfcover sheet is believed to satisfy minimum legal requirements as of its revision date, compliance with applicable law, as the same may be amended from time to time, remains the responsibility of the user of this fomtfcover sheet. Questions should be addressed to the user's legal, business or tax advisor(s)_ Pn_Reo_ReM Page 2 ar; Rav. ofwzoos Document processing fee If document is tiled on paper $10.00 If document is filed electronically Currently Not Available Fees formsicover sheets I are subject to change. To file electronically, access instnictions fig, QQ for this form/cover sheet and other QF ETQTE information or print copies of filed 15334: U9 documents, visit and select Business. Paper documents must be tyowritten or machine printed, aeovssvace ron ornce use outi- Statement of Change Changing information Other Than Principal Office Address or Registered Agent Information tiled pursuant to and, ifapplicable, ofthe Colorado Revised Statutes (C.R.S.) ID number: 20091091487 i. Entity name: American Tradition institute 2. True name: (ifdifferem from the entity name) Complete lines 3 - 9 as applicable. You must complete section 10. 3. Document number: 20101685751 [required for change(s) to 4, 5, 6. 7 andfor 8 below) 4. Change of entity name of record (LLP, an. 61 or foreign entity only): New entity name: 5. Change of true name of record (LLP, art. 6| general partnership or foreign entity only): New true name: 6. Change of jurisdiction of formation of record (foreign entity only): Newjunsdiction of formation: 7. Change of entity form of record (foreign entity only); New entity form: Page 1 or; Rev. tzrouzooe 8. Other change(s) not provided for above: lf other infomation contained in the filed document is being changed, mark this box and include an attachment stating the infomation to be changed and each such change. lfother information is 'being added or deleted, mark this box and include an attachment stating each addition or deletion. 9. (Optional) Delayed effective date: Notice: Causing this document to be delivered to the Secretary of State for tiling shall constitute the affirmation or acknowledgment of each individual causing such delivery, under penalties of perjury, that such document is such individuals act and deed, or that such individual in good iaith believes such document is the act and deed of the person on whose behalf such individual is causing such document to be delivered for tiling, taken in confonnity with the requirements ofpart 3 of article 90 of title 7, C.R.S. and, if applicable, the constituent documents and the organic statutes, and that such individual in good faith believes the facts stated in such - document are true and such document complies with the requirements of that Part, the constituent documents, and the organic statutes. This perjury -notice applies to each individual who causes this document to be delivered to the Secretary of State, whether or not such individual is identified in this document as one who has caused it to be delivered. 10. The true name and mailing address of the individual causing this document to be delivered for tiling are Nicholas Mario (Last) (Fir.tU (Middle) (315911) 1601 Blake Street 301 (.S'rr'eei number and name or Pos! Office Box Denver CO 30014 (City) (Stare) (ZIP/Postal Code) (Province - (Country) (Unpplicnble. adopt' thefoNow|`ng statement by the bat rind' include nn [Il This document contains the true name and mailing address of one or more additional individuals causing the document to be delivered for tiling. Disclaimer: This fomi./cover sheet, and any related instructions, are not intended to provide legal, business or tax advice, and are fumished without representation or warranty. While this formfcover sheet is believed to satisfy minimum legal requirements as of its revision date, compliance with applicable law, as the same may be amended from time to time, remains the responsibility of the user of this fomi/cover sheet. Questions should be addressed tothe user's legal, business or tax advisor(s). Page 2 o|`2 Rev. IZIOHZOO9 ID Number 20091091487 Paragraph 7: to change the name of the individual causing the socument to be filled The name should be Mario Nicholas Colorado Secretary of State Date and Time: 04:05 PM Number! 20091091487 Document must be filed electronically Paper documents will not be accepted. Qumbeff 201 11 163133 Document processing fee $10.00 Paldl $10.00 Fees sheets are subject to change. To access other information or print copies of tiled documents, visit and select Business Center. SPACE FOR OFFICE USE ONl.'t' Statement of Correction Correcting the Principal Office Address tiled pursuant to 7-90-305 ofthe Colorado Revised Statutes (C.R.S.) I. The entity ID number and the entity name, or. it" the entity does not have an entity name, the true name are Entity ID number 20091091437 (Com-adn q,f`Smre ID number) 2. The document number of the filed document that is corrected is 201 01685751 . 3. The principal office address as stated in the document identitied above is incorrect. Such address, as corrected, is Street address olo Blake Sl number and name) Suite 310 Denver CO 80202 (CI) (Stl States in 0 6 - ffupph`cnbh?) (Country) Mailing address p-O- BOX 83 (leave blank if Same 35 Street address) (Street nuu?f>crur1d nrmre or Post (Micro But Denver CO 80201 itvl {,?ttn5) (ZIP/Postal Code) Urn States 4. adopt the fly marking the tlrm' um? include un n'.'tm'hmem.) lj This document contains additional information as provided by law. Page 1 ofz net. ion/zoos Notice: Causing this document to be delivered to the Secretary of State for filing shall constitute the affirmation or acknowledgment of each individual causing such delivery. under penalties of perjury, that such document is such individual's act and deed, or that such individual in good faith believes such document is the act and deed ofthe person on whose behalf such individual is causing such document to be delivered for filing, taken in conformity with the requirements of part 3 of article 90 of title 7, C.R.S. and, if applicable, the constituent documents and the organic statutes, and that such individual in good faith believes the facts stated in such document are true and such document complies with the requirements of that Part, the constituent documents, and the organic statutes. This perjury notice applies to each individual who causes this document to be delivered to the Secretary of State, whether or not such individual is in this document as one who has caused it to be delivered. 5. The true name and mailing address ofthe individual causing this document to be delivered for tiling are Nicolais Mario Daniel Il IN (FT) (M`cfdf) Blai?) tri! i tr ix (Struct number and mime or P051 Office ffm' SUI [9 31 Denver CO 80202 tZi_ufPo.rrn! Code) |'Province - up;Jl'ft'abfc) (C0tnirijv) adopt fhe_foHoivirig by marking the box and include an attachment.) This document contains the true name and mailing address of one or more additional individuals causing the document to be delivered for tiling. Disclaimer: This form/cover sheet, and any related instructions, are not intended to provide legal, business or tax advice, and are furnished without representation or warranty. While this form/cover sheet is believed to satisfy minimum legal requirements as of its revision date, compliance with applicable law, as the same may be amended from time to time, remains the responsibility of the user of this formfcover sheet. Questions should be addressed to the user`s legal, business or tax advisor(s). coaascrjoa Page 2 of 2 iarifzoos Kast, Richard rck4 From: Sent To: Subject: Ur. Schnare Dr. Schnare LQ, Dr. Schnare Dr. Schnare Dr. Schnare pf-Q Dr. Schnare QQ, Dr. Schnare Dr. Schnare :Qi Dr. Schnare Br. Schnare Dr. Schnare Dr. Schnare Dr. Schnare Dr. Schnare Dr. Schnare Dr. Schnare Dr. Schnare Dr. Schnare Dr. Schnare Dr. Schnare Dr. Schnare Dr. Schnare or. Dr. Schnare Q, Dru. Schnare Dr. Schnare Kast, Richard (rck4p) Wednesday, October 12, 2011 2:20 PM Richard Kast (rck4p@Virginia.edu) Sent from Snipping Tool Thu 9/29/20-11 3:42 PM Thu 9229/2011 2:32 PM Thu 9/29/2011 12:54 PM wed 0/2012011 2:51 PM wen 912012011 12:11 PM Tue 9/27f2011 11:16 AM wed9f14/2011 5:04 PM wed 9f14/2011 2:41 PM Fri 9/9/2011 3:12 PM Fi: 92912011 3:09 PM Fri 9f'9/2011 10:40 AM Thu 933/2011 12:08 PM Thu 9fBf2011 11:09 AM Tue 9f'5f2011 3:19 PM Tue 3:04 PM Tue 9.53/2011 12:04 PM me 5/65011 11:05 AM ruePf2011 10:51 AM rn 01212011 2:33 PM wed 5:01 PM Mon 12:18 PM Mon 8/22/2011 2:45 PM Mon 3f22>>'Z011 11:35 AM FrIaf19/2011 5:50 PM Fri 5:14 PM Thee'/4/2011 10:Re: Fotlow-up Conversation Re: Follow-up Conversation Re: FoiIow~up Conversation Re: Sur-reply CD Sur-reply CD Freedom of information Request Re: Repiy Memorandum Re: American Tradition Institute v. UVA UVA CL 11-3236 Petitioners' answers a Re: Response Memorandum; Civil Action Re: ATI UVA CL 11-3236 Hearing Date anc RE: A1111 UVA Revision of the protective or: Re: ATIV UVA CL 11-3236 Hearing Date anc Re: ATIV UVA CL 11-3235 Motions Practice Re: ATI UVA CL 11-3236 Motions Practice Re: Your message Re: Your message ATI UVA CL113236 Motions Practice Con Re: Attached Letter Re: Attached Letter Re: Michael Mann Re: FOIA Request Re: FOIA Request Re: FOIA Request Re: FOIA Request Re: FOIA Request EXHIBIT 1 Kast Richard rck4 From: Sent: T02 SubjectSchnare nare Schnare Schnare Schnare Schnare Schnare Schnare Schnare Schnare Schnare Schnare Schnare Schnare Schnare Schnare Schnare Schnare nare Schnare Schnare Schnare Schnare Schnare Schnare Kast, Richard (rcl<4p) Wednesday, October 12, 2011 2:21 PM Richard Kast (rck4p@Virginia.edu) Sent from Snipping Tool Men 221121011 1:32 PM 4 ics Men 6/27/2011 11:40 PM 3 KB MOH 6f27f2011 11:01 AM 5 KB Tue 6/7/2011 3:43 PM 14 KB 102: 61022011 3:21 AM 0 KB wed 02122011 12:14 PM 10 KB Tue 523122011 0:40 41.4 4 KB rm: 5226/2011 2:42 PM 4 1:0 Mon 522322011 4:25 PM 3 KB Mon 522322011 2:45 PM '2 |10 P21 522012011 11:55 AM 53 |10 Fri 5220/2011 0:40 AM 19 KB 2:06 PM 3 wed 521827011 4:31 PM 14 1:0 ww 521022011 1:24 PM 9 KB wed 5f18i2011 10:11 AM 4 |10 Tue 521722011 4:19 PM 4 KB Tu: 521722011 3:55 PM so KB Mon 521622011 2:00 PM 0 KB Men 521622011 12:30 PM 219 KB mu 417/2011 4:38 PM 51 1:0 Mon 322022011 3:31 PM 4 |03 rm: 3224220113:-145 PM 4 ics sun 32622011 11:11 Am 302 :ca Inu 221722011 0:01 PM 0 KB 1 ATI FOIA payrn ent ATI 12 Rectors - Order ready for entry Re: Order Re: Close out cn yesterday Close out on yesterday Re: Proposed meeting Proposed meeting Quick note ATI schedule Re: ATN Rector: Proposed Orders ATI Rector: Proposed Orders Re: Scheduling Call A11 mr Rector CL-113231 Draft motions Re: Scheduling Cai! A11 Rector CL-11-3231 Re: Scheduling Cai! ATI Rector CL-11-3231 Re: Scheduling Call Rector CL-11-3231 Scheduling Call ATI Rector CL-113236 Re: Your FOIA Request Re: ATI Rector A11 mr Rector Re: Your request Re: FOIA Request Re: VFOIA to the University of Virginia -- lk ATI March 6 letter Re: VFOIA to the University of Virginia -- P. I From 61. Schnafr 5 arm155 IHS 16IB 145 4323 U1 Slhnare Phunua! agenda 3 Dnimhnarz 3 Dr.SG\nate Dr,Srhnar: 3 ?1 UL Rr: iltached latin Fri 9:12011 rw rfu. 3 3 Ur. Srhnare Pellnonur answers and responsuto the Mann marinas 3 _3 Uf.S?hnare 4, 0r.Schnare Ruroulmessaqe David Schnare to Madelyn Wessel EXHIBIT 3 0 Wessel, Madel (mfw2 From: Wilkerson, Elizabeth (epw3rn) Sent: Thursday, October 13, 2011 11:01 AM To: Wessel, Madelyn (mfw2y) Cc: Kast, Richard (rck4p) Subject: two Schnare emails Attachments: 2011-02-11 phone recap.JPG; 2011-02-15 email.JPG; 2011-02-15 ATI vs Madelyn - Here are the two emails, plus the attachment to one, that I received from David Schnare during the time period you requested. The telephone call he recaps in one email took place during normal business hours on Feb. 9, 2011. Please let me know ifyou need anything further from me. All the best, Elizabeth Elizabeth P. Wilkerson Special Projects Oflicer Office of Public Affairs University of Virginia PO Box 400229 Charlottesville, Virginia 22904-4229 (434) 924-3938 (office) (434) 249-1415 (mobile) (434) 924-0938 (fax) - 1