Supreme Court of VA sides with University, secrecy, and Mann. The previously claimed destruction of Mann emails now to begin.
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
130934 American Tradition Inst. v. Rector and Visitors 04/17/2014
The circuit court was correct in denying a request for disclosure of certain documents under the Virginia Freedom of Information Act. The purpose of the higher education research exemption under Code § 2.2-3705.4(4) for “information of a proprietary nature” is to avoid competitive harm, not limited to financial matters. The definition of “proprietary” in prior case law, that it is “a right customarily associated with ownership, title, and possession, an interest or a right of one who exercises dominion over a thing or property, of one who manages and controls,” is consistent with that goal and the circuit court did not err in applying that definition. Viewing the facts in the light most favorable to the university that prevailed below, it produced sufficient evidence to meet each of the higher education research exemption’s seven requirements. Also, in the context of the Code § 2.2-3704(F) provision allowing a public entity to make reasonable charges for its actual cost incurred in accessing, duplicating, supplying or searching for requested records, “searching” includes inquiry into whether a disputed document can be released under federal or state law, and this statute permits a public body to charge a reasonable fee for exclusion review. The circuit court’s judgment excluding disputed documents and approving such cost recovery is affirmed, and final judgment is entered in favor of the university.
See the document here: http://www.courts.state.va.us/opinions/opnscvwp/1130934.pdf
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Now.. vote to END support for “higher ed” that does not disclose
everything.
Should still be able to get the emails thru the Steyn case.
Publicly funded educational research is specifically exempted to protect financial interests? Wouldn’t the right of possession be held by the people of Virginia?
What a strange outcome.
Sounds rigged, have to wonder how many judges, or family members, or political contributors, are alumni?
Something stinks…. And Lew-paper won’t make the smell go away.
Really, that is an interesting decision. It implies that the university and the staff have ownership of whatever their research develops. I wonder where the breakdown is between how much is “owned” by the univiersity and how much by the staff? I have yet to see it possible for a government worker, as an example – which, oddly enough, is basically what the universtiy staff is since it is paid by taxes – be able to patent or “own” intellectual property developed at the government facility. I don’t see how this bird flies. Next up, since we are talking federal funding here as well, the ruling of the Supreme Court, should it be taken to them and accepted by them. If they agree, then half of all the things that are discovered under federal programs, at the least, belong to the staff. My, just think of all the rich people that this ruling can make after the suits are filed.
Tim,
The “people” is no longer actual people, it’s the liberal juggernaut. Didn’t you know that? Today the “people’s” Atorney General is arguing AGAINST the actual peole of Virginia to uphold the overturning of the definition of marriage that that actual people of Virginia voted into the state Constitution.
Reblogged this on Power To The People and commented:
What are Mann and the University hiding and why is it trumping the public’s right to know??? The plot thickens.
Brad,
I have no idea how many of the judges on the appellate court are UVa alumna, but one famous UVa Law (after Harvard pre-Law) thinks that the US Constituion is 400 years old: http://www.washingtontimes.com/news/2014/mar/13/sheila-jackson-lee-claims-constitution-400-years-o/
If the emails are destroyed Mark Steyn will win his damages. If the emails are not destroyed we will see them in discovery. This is not going away, just delayed.
After reading the decision by the court, I agree that their interpretation is correct. It’s disappointing, yes, but reasonable and coherent. I also note the caveat by one of the judges at the end of the decision write up that there might be unintended consequences of applying the definition of the word “proprietary” to other sections. So it goes….
On a quick read through and without looking at the referenced cases, I note two things: ATI probably argued the case badly, and the ruling is a cautious ruling. Th nut of the last part is in the court’s caution over the meaning of “proprietary”, the ambiguous intent of its meaning as derived from the Va legislature in statute (which the court has asked the legislature to clarify), and the consequence, that because of this ambiguity, the court was obliged to follow the narrower definition established by case law in respect of the specific Codes in the VAFOIA. The competitive issue of public schools vs private schools is an interesting wrinkle. The decision is not a failure of the court to uphold access to publicly funded information, it’s a failure of the state legislature to properly construct statutes with consistent common use terminology.
“I have yet to see it possible for a government worker, as an example – which, oddly enough, is basically what the universtiy staff is since it is paid by taxes – be able to patent or “own” intellectual property developed at the government facility.”
This is common. How better to get beneficial research and development?
Are you surprised? What else should one expect when paddling up stream against such a powerful official current. The system is rigged. Like a judge told me years ago, our legal system is about technicalities and procedure, not justice. The draw bridge is up. Standby for decisive, planet saving executive action.
Thank you Paul Coppin for a very informative reading.
I feel like I am going to vomit.
It feels like this whole country is on crazy pills.
Please never donate a penny to this institution again. UVA has moved the goal post so far from their original claims about this situation.
Here is what they said about climate change FOIA and CID requests years ago to pacify their donors.
http://www.virginia.edu/foia/climatechange/
Here is how they describe their commonly used exemptions.
http://www.virginia.edu/foia/exemptions.html
“information of a proprietary nature”
What in God’s name is proprietary about climate research? I thought Mann was trying to enlighten us plebeians as to the dangers of global warming.
IANAL, so here’s the question now: Mann is suing Steyn in the Washington DC district. Steyn has sought discovery of Mann’s emails (including those from UVa). Mann is trying to dodge this (even though Steyn has apparently completely complied with Mann’s discovery requests already).
My question is about jurisdiction. Can the District court in DC order UVa to cease on its stated intent to destroy these emails? Also, is this the kind of decision that can be appealed to SCOTUS, or is this strictly a VA only issue? (It seems that this decision was based on VA FOIA laws, not Federal laws, or am I mistaken?)
Lawyers only, please.
Look at the new Governor and AG in VA. All you need to know.
– – – – – – – – – – – –
ATI has recourse now to raise the bar to the US Supreme Court. Since we are talking virtually all of Mann’s research funding at UVa was ultimately derived from the US Federal Government, it would be appropriate for SCOTUS review.
NOTE: If the UVa advocates principles of freedom, this ruling is not in its ‘favor’.
John
It’s not a blow to open science. It is however a blow to taxpayers who are forced to pony up money to pay for government funded science.
Science is a process for learning about the universe. If someone keeps their data or their work product secret, it doesn’t really do much other than to slow down science since anybody can conduct an experiment; anybody can make observations. All that a secretive person does is make it harder for others to replicate his results. And in science, when people can’t replicate your results, it tends to make it harder to gain influence.
However, people doing scientific research or theorizing need resources to use in their endeavors. Of the variety of methods open to them to gather these resources, patronage is the most popular; a patron provides money so that the research can occur.
A patron, risking his own money, has great incentive to ensure their money is not wasted. In this case, the patrons (government officials) are not spending their own money but forcing other people to provide it. And because they face no loss for wasting the money, the patrons really have no incentive to ensure that the research they command is done with competence and in a valid way. The tax payers will have a more difficult time forming a good judgement of how well the government officials controlling the purse strings are doing, because the taxpayers have been denied a very useful tool to inspect the way their money is being spent.
Supreme Court of VA sides with University, secrecy, and Mann.
————
Where are we going – and why are we in this handbasket?
Return to base. The tide of history is against you! Imagine how elated Mann and the Team are today. It is very doubtful we can sue our way out of this or vote our way out. We need another Climategate email dump about now. Where are all the hackers?
It’s just Establishment Supports Establishment, precisely what you’d expect. Not the Man Bites Dog that many seemed to be hoping for, but it’s as well to be reminded occasionally that faith in any authority is usually misplaced.
Who would have imagined politicians in robes supporting politicians in lab coats?
So the government can monitor all my email and phone calls, as well as all communication of every privately owned company, but WE THE PEOPLE are not permitted to see the work that WE paid for.
Makes perfect sense.
Climategate Email 1106338806.txt
http://eric.worrall.name/Climategate/FOIA/1106338806.txt
I wouldn’t worry about the code. If FOIA does ever get used by anyone, there is also IPR to consider as well. Data is covered by all the agreements we sign with people, so I will be hiding behind them. I’ll be passing any requests onto the person at UEA who has been given a post to deal with them. … I got a brochure on the FOI Act from UEA. Does this mean that, if someone asks for a computer program we have to give it out?? Can you check this for me (and Sarah)