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
This comes as absolutely no surprise to me.
This news is as bad as the ‘Kiwigate’ temperature fudging case decision in New Zealand in which the New Zealand High Court judge, Geoffrey Venning, ruled that the High Court was not competent to rule on questions of science.
Fine if they OWN it they can PAY FOR IT!
CUT ALL FUNDING OF ACADEMIA! And while you are at it cut all grants for science too.
Lauren R. says: @ur momisugly April 17, 2014 at 2:38 pm
…Mann and his serially bad science notwithstanding, universities have a compelling reason to protect proprietary research. They frequently patent the technology they develop. That’s a good thing….
>>>>>>>>>>>>
You are completely missing the entire point. if the research is “proprietary research” you do not write a paper on it and submit it to a journal until AFTER the patent number has been assigned. If it is submitted to a journal it darn well include ALL the information or it is not science.
It really is that simple.
“Research withheld” … “Mann’s nature and his deceit” … “Judges on the take” … What a bunch of whiners. Mann’s data and conclusions have been published in multiple peer-reviewed papers. The court has LOOKED AT the evidence and applied legal standards regarding public disclosure in order to make a ruling. Now, if I were to send a personal email to an academic colleague stating “half the people commenting on Wattsupwiththat are friggin’ idiots clamoring for the fossil fuel-funded Mann witch hunt”, while it might be fine with me if it became public, the colleague might reasonably not wish my email or his/her replies to be made public. This whole effort is a FISHING EXPEDITION to try to embarrass a scientist whose research threatens powerful interests — not some deeply principled exercise of FOI rights. Get over it.
Not sure if Mr Schnare will see this, but as an interested lay reader in another country I’d like to know how the Virgina court justified their use of this Green definition.
I would try to argue the lower court and the appeals court have erred in applying this broader “Green” definition because this broader interpretation of “proprietary” :
• A) is no longer specific to the objectively defined individual piece of information that was requested, but is then an open-ended subjective definition including anything which if divulged under any circumstance for any as-yet-unimagined purpose could be interpreted by anyone anywhere in any manner with subsequent institutional harm of a value which is totally speculative, AND
• B) is broad enough to be inconsistent with the specificity of the other financial, copyright, and patentability requirements of the VFOIA exemption, and
so can be used to defeat the wide-ranging original public accountability purpose of the FOIA in all other publicly funded institutions.
One of the purposes of FOIA is to uncover waste in government, which means divulging expenses, which implies releasing the “institution’s financial or administrative records”. A court could easily find that a university was justified in concealing the identities of its major donors and their donations, but was not justified in concealing the expense of a $2400/night hotel room in the Bahamas for a research trip. The original intent of the legislation affects the interpretation of the wording.
To understand the meaning of the word “copyrighted” in the FOIA exemption 7 you would have to know the original intent was to exclude works copyrighted by an entity other than the public institution, where redistribution under FOIA would violate copyright. Without that background you could assume a literalist interpretation of exemption requirement 7, which would imply all information would be excluded from FOIA because all information is automatically copyrighted by someone. The terms in FOIA can’t be retroactively shoe-horned into some different meaning beyond their original intent.
The non-patented requirement suggests the narrower interpretation of “proprietary”, because any information portion of an email that could be the subject of a patent would be valuable enough to increase the reputation of the host institution when it becomes publicly known, not decrease it. The “original intent” principle that is clearly needed by the term “copyright” can then be applied to the “proprietary” clause too. The FOIA exemption is intended to protect commercially valuable information up until the time the realisation of that value requires it to be divulged to the market anyway (eg patent). The term “proprietary” should be interpreted in that context. Therefore, show us the business plan or show us the emails.
Could that argument work?