Am. Tradition Inst. v. Rector & Visitors of the Univ. of Va., Record No. 130934

CitationRecord No. 130934
Case DateApril 17, 2014
CourtSupreme Court of Virginia


Record No. 130934

Supreme Court of Appeals of Virginia

April 17, 2014

Present: Kinser, C.J., Lemons, Goodwyn, Millette, Mims, and Powell, JJ., and Lacy, S.J.


Paul F. Sheridan, Judge Designate

In this appeal, we consider whether the Circuit Court of Prince William County ("trial court") erred by denying a request for disclosure of certain documents under the Virginia Freedom of Information Act ("VFOIA"), Code § 2.2-3700 et seq., and whether a public body may impose charges for the cost of reviewing documents under the statutory exclusions.1

I. Facts and Proceedings Below

Dr. Michael Mann ("Professor Mann") is a climate scientist and former professor at the University of Virginia

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("UVA"), whose scholarly work has generated much scientific and political interest.2 On January 6, 2011, American Tradition Institute and Robert Marshall (collectively, "ATI") sent a request to UVA, a public university, seeking all of the documents that "Dr. Michael Mann produced and/or received while working for the University . . . and otherwise while using its facilities and resources . . . ."

Following ATI's January 6, 2011 request, UVA responded that it could not comply within the pre-set five-day compliance deadline under the VFOIA. See Code § 2.2-3704(B). ATI and UVA negotiated over a document production and fee schedule. After multiple email exchanges, ATI and UVA agreed to a production schedule and a $2,000 deposit to defray costs. On March 10, 2011, UVA received ATI's $2,000 deposit and began assessing its VFOIA request shortly thereafter.

On April 6, 2011, UVA sent ATI an email which read in part:

I am writing to follow up on your Freedom of Information Act request of January 6, 2011, for a wide array of records and documents concerning former University of Virginia faculty member Michael Mann. As I previously informed you, the University has identified 34,062 potentially responsive documents on the

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server we have previously agreed to be the sole repository of any possibly responsive material. We have now segregated from that mass of documents approximately 8,000 that are potentially responsive to your request and have been reviewing these documents for possible disclosure. As of today we have exhausted in this effort the initial payment you made. Consequently, we will undertake no further review unless you wish to pay another installment on our original estimate of $8,500.
To date we have reviewed approximately 1,000 of the roughly 8,000 documents potentially responsive to your request. I anticipate that a first group of responsive, non-exempt documents which may be lawfully disclosed will be released to you shortly.

On April 7, 2011, ATI complied with UVA's request and deposited additional funds so that the University would "continue [its] work to produce responsive documents." On April 29, 2011, UVA's associate general counsel indicated that the first set of documents would be available by May 6, 2011. However, ATI received no documents on that date so it filed a "Petition for Mandamus and Injunctive Relief" ("Petition") in the trial court. ATI's Petition asked the trial court to:

(1) [O]rder [UVA] to provide the requested documents on a timely schedule; (2) bar [UVA] from demanding payment for any costs other than "accessing, duplicating, supplying, or searching for the requested records"; (3) order the Parties to engage in a process that will minimize the number of excluded documents the Court will have to review in camera; (4) order payment of the Petitioners' reasonable costs associated with the instant matter; and

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(5) order such necessary and proper injunctive relief or other injunctive relief as this Court deems just and proper.

On May 24, 2011, the trial court entered an "Order on Protection of Documents" which stated, in part:

The Respondent [UVA] may designate as Exempt Information any requested public record. Such designation shall constitute a representation to the Court that the Respondent . . . in good faith believes that the information so designated constitutes Exempt Information . . . . Respondent shall provide the Petitioners' [ATI] counsel . . . copies of all Exempt Information in a form to be agreed upon between the parties. . . . The Petitioners shall have 90 days after receipt of the Exempt Information to review it, negotiate with the Respondents, and if they choose, file a petition with the Court for in camera review for determination as to whether the Respondent properly designated the records as Exempt Information as defined herein.3

In an accompanying order, the trial court also directed UVA to release 1,793 emails "no later than 90 days after the date of this order."

In June 2011, the trial court conducted a hearing on whether UVA could charge ATI for the costs of reviewing the

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identified records according to the requirements of various statutory exemptions and limitations. After hearing oral argument the trial court entered an order holding that review of records sought pursuant to the Act to assure that the records are responsive, are not exempt from disclosure, and may be disclosed without violating other provisions of law is a necessary part of the process of "accessing, duplicating, supplying, or searching for the requested records" explicitly authorized by § 2.2-3704(F) and therefore represented a cost that may be imposed upon the requester under the VFOIA.

In September 2011, Professor Mann filed a motion to intervene, arguing that the University could not sufficiently protect his interests in privacy, academic freedom, and free speech. The trial court granted his motion on November 1, 2011.

Throughout 2012, the parties reviewed the requested documents and developed a series of exemplars for the trial court to review. UVA offered 14 exemplars. ATI proposed 17. On September 17, 2012 and April 2, 2013, the trial court conducted an in camera review of the exemplars and heard oral argument to determine whether the documents should be classified as exempt. The parties primarily disputed documents that may have been "proprietary." The significance of the dispute is highlighted by the use of the term in Code §

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2.2-3705.4(4) which addresses certain public records that are exempt from disclosure. To be exempt, the public record must be:

Data, records or information of a proprietary nature produced or collected by or for faculty or staff of public institutions of higher education, other than the institutions' financial or administrative records, in the conduct of or as a result of study or research on medical, scientific, technical or scholarly issues, whether sponsored by the institution alone or in conjunction with a governmental body or a private concern, where such data, records or information has not been publicly released, published, copyrighted or patented.

Code § 2.2-3705.4(4).

UVA argued that the definition of "proprietary" applied in Green v. Lewis, 221 Va. 547, 555, 272 S.E.2d 181, 186 (1980), should be applied in the VFOIA context. In Green we stated: "A proprietary right is a right customarily associated with ownership, title, and possession. It is an interest or a right of one who exercises dominion over a thing or property, of one who manages and controls." Id. In contrast, ATI argued that the General Assembly intended to equate "proprietary" with "competitive advantage." In application, ATI limited its concept of competitive advantage to disclosures that would cause pecuniary harm. The trial court

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adopted UVA's position and applied the concept of "proprietary" discussed in Green.

After reviewing the exemplars and hearing oral argument, the trial court entered its final order on the Petition and held that:

(1) Professor Mann's business correspondence was public record; but that his "purely personal correspondence not relating to public business" did not constitute a public record under VFOIA;
(2) Professor Mann's emails were scientific and scholarly;
(3) Professor Mann's emails were not "publicly released, published, copyrighted, or patented";4
(4) the definition of "proprietary" in Code § 2.2-3705.4(4) means "a thing or property owned or in the possession of one who manages and controls them, in this case, the University . . . . The concept of commercial competitive advantage in [Code § 2.2-3705.6] does not modify the meaning of 'proprietary nature' within [Code § 2.2-3705.4(4)]"; and
(5) the [e]xemplars were either personal emails not qualifying as public records or they met the requirements of the "proprietary research," "scholastic record" and "personnel record" exclusions.

The trial court upheld UVA's exclusion of Professor Mann's emails from production.

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ATI noted its appeal to this Court, and we awarded an appeal on the following assignments of error:

1. The trial court erred in holding "of a proprietary nature" as used in [Code] § 2.2-3705.4(4) means "a thing or property owned or in the possession of one who manages and controls them."
2. The trial court erred in allowing [UVA] to demand payment for the cost of exclusion review of documents sought.
3. The trial court erred in finding UVA

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