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
As I read the opinion, FOIA will never apply to Universities. Anyone disagree? Essentially says Universities are not government agencies.
People who live in belief of Man-Made Global Warming live in Darkest much described by Plato. Mann won but as in Photography, old Photography, he has more Darkroom time. He lives in a world now of Red Light. Soon he won’t be able to return to the light without much and sincere apology.
In the long run, the Virginia Commonwealth Higher Education joins Pennsylvania and England in protecting their institutions. Also, in the long run we will have about three or more ignorant generations deep in socialist-police state of mind that true science will be hid through a New Dark Age much as at the end of De Vinci time which lasted 50 generations.
They voted it into power. They have their just rewards.
As for us, the present Solar sunspot minimum will be an Equalizer.
Most Sincerely,
Paul Pierett
“Like a judge told me years ago, our legal system is about technicalities and procedure, not justice.”
They start teaching you that on Day 1 of law school. Basically, that’s what “thinking like a lawyer” is all about. (and yes, I am speaking from experience)
I just posted this on Bishop Hill, but it should more probably be posted here:
This is potentially very far-reaching in equating “information of a proprietary nature” with anything which could lead to “competitive harm”. Universities in the US are in a competitive market place for students thus anything relating to falling standards or – dare I say it – allegations of sexual abuse by sports coaches can now be kept from FOI as this would lead to competitive harm as it would deter students from applying.
Absolutely shocking and completely against the intent of the legislation.
Universities have the right and responsibility to protect their inventions (under Bayh-Dole) if there were any federal funds involved in the research. This is the basis, as far as I can tell, for the exemption of proprietary information from FOI. However, protecting inventions only requires confidentiality to the point where they are made public through patent applications and the whole purpose of the legislation was to encourage disclosure through such applications, while retaining licensing rights to encourage investment in developing products from the invention. At no stage is competitive harm an issue for publicly funded bodies in relation to invention or invention disclosure and the ultimate purpose of University research is full public disclosure – with the only exemption being temporary confidentiality until protection has been sought (patent application).
if the emails supported their case would they be destroying the evidence in them?
I should have added, as all smart lawyers have figured out ages ago, if you want to control the outcome, you control the procedure.
And don’t despair, there are ways of changing this – but only through electing a legislature and a governor that believes in the same things you do, and which will act on them. (For instance, removing the proprietary exemption from public universities, insofar as it relates to the FOIA act) It always all comes down to politics in the end – when Courts decide everything, and governmental procedure controls every outcome, then everything is political, by default.
or to put it another way – you may not be interested in politics, but politics is interested in YOU. You either fight for what you believe in, based on that knowledge, or you accept the outcomes that other people who are more willing to fight for what THEY want will grant you,
(and remember – those dedicated to making a lot of money from controlling governmental outcomes to suit their own private purposes will fight very, very hard to keep that gravy train rolling)
Paul Coppins says “ATI probably argued the case badly”
Whether that is true or not, the people of Viriginia in theory have a freedom of information that exists however poorly that freedom is stated. The fact the court chose not to honour that freedom marks a dark day. Gator says it best, the government monitors you, but you can’t monitor it.
Freedoms in America are being not so slowly diluted into priviledges doled out when convenient.
I am not an American: Is the SCOVA the last step or can this go to SCOTUS? What are the unintended consequences of such a perverse ruling?
I agree with the decision. Before objecting to it, I suggest that you read the whole thing. In particular, the comments by John Simon (Vice President and Provost of UVA and former Vice-Provost of Duke University) make a lot of sense.
Some of you need to actually read the decision. For observers of legal process, there is a ton of insight in this decision, none of it having anything to do with a public right to know anything. The appeal to the Va Supreme Court failed on the varying common use definition of the word “proprietary” as established by the Va legislature in a number of statutes. The consequence of that fact gave the court little wiggle room to vary the interpretation of the lower court because of solid case precedence specifically in its use in the VAFOIA. It appears ATI’s counsel missed the very important point that Virginia has its own common definition of “proprietary” established in case law usage ( actually multiple definitions) and it’s not what they trotted out in their arguments. ATI may have argued oranges, while the appeals court concerned itself with the legislated varieties of apples.
What they say; “More transparency in government”.
What they do; Less transparency in government.
Surely the information in those emails could only strengthen their position, right?
Corruption all the way. This is a good heads up about how the AGW social mania has corrupted all it touches.
This fight is far from over. This is like when abolitionists were losing in court, or the Dredd Scott case that institutionalized racism.
Be prepared for a long fight.
Of course, a nice leak right about now would not be a bad thing.
“I am not an American: Is the SCOVA the last step or can this go to SCOTUS? What are the unintended consequences of such a perverse ruling?:
Generally, rulings based on State Law stay in State Courts, with the only exception being if the appellant can make a convincing case that there is a core constitutional issue involved. I don’t see that happening here, so this looks like the end of the line, unless the Legislature gets involved.
I don’t see why the good People of Virgina would be interested in funding generation of “information of a proprietary nature” on their tax money, but it is their business.
Just posted this at Bishop Hill’s blog:
John
This is not that surprising considering the precedence of how science is mangled in the policy and regulations sausage factory by the likes of John C. Beale. Also, imagine what public health would look like if health science was conducted this way. Clearly, there are double standards of conduct, integrity, and process when human health and huge damage litigation are at stake– climate science not so much.
Headline: Judge Bound By Legalism To Render Unjust Decision
Andrew
how legal logic works
in the old days if you opposed the say so of the king then as the king was ordained by god that made you against god’s will thus a heretic. As a heretic you were in league with the devil and associated with demons and practiced witchcraft thus maybe burnt at the stake. All perfectly legal.
i doubt in any age the legal system hasn’t been used as a hammer to defend the current fashion of truth held by the state. IPCC is state policy. anything that threatens that will be crushed,masked, suppressed etc.
laws are man made. the truth isn’t. so expect divergence
If there is any justice, this will lead directly to a summary dismissal of Mann v. Steyn.
With this ruling an essential scientific credo “Nullius in verba” is effectively dead with regard to the work of the professors at UVa. I would simply suggest that it is entirely apropos to summarily disregard or dismiss any research paper prepared by the university.
What puzzles me is that people are surprised by this ruling?
I don’t doubt that there will now be allegations of NWO/Illuminati/Power Elite and perhaps even the Masons, but the real truth of it is “the old boy network covering its arse”
Money, even “new” money has, and always will, look after it’s own.
“to avoid competitive harm”
What competitive harm?
The US government has cause to be wary here.
If a government funded institution were ever to produce something revolutionary and of significant value the university could claim sole ownership and sell to the highest bidder.
I suppose the counter to this is that it is extremely unlikely the current batch of government funded ‘research’ universities will ever produce anything of value.
I can’t imagine the Russian and Chinese governments getting into a bidding war over ‘Recursive Fury’
This is very sad. It appears that the law is the corruption, not the judges, but there is no justice when Steyn’s RIGHTS to Discovery in a lawsuit have been violated, and not for patent.
Part of the problem is far too few scientists who really understand and love science as a glorious method of exploration of Nature’s laws. Many who are able to do real science are never-the-less prostitutes who produce apparent science for money. This includes many climate scientists (ok, probably most of them but I can’t prove it). Those “scientists” are politicians, not science lovers.
Part of what we are trying to do in the Climate Skeptic movement is restore real science. The laws and the courts are two vital parts of that challenge
That’s okay, secretive quasi-governmental organizations hardly ever go wrong, do they?