Va. high court clarifies FOIA exemption, redaction fee issues in case over climate change controversy

The Virginia Supreme Court ruled this morning that the University of Virginia does not have to release certain emails sent to and from a former professor.

The American Tradition Institute (now the Energry and Environmental Legal Institute) requested emails under the Virginia Freedom of Information Act from Michael Mann, a climate scientist and then-professor at UVA, in 2011. He intervened in the case at the trial level, alleging that the university was not sufficiently representing his privacy and academic freedom rights in a controversy surrounding climate change research.

In April 2013, a Virginia court determined that Mann's emails were exempt from disclosure under VFOIA's exemption for public university documents "of a proprietary nature," holding that "proprietary" meant "a thing owned or in the possession of one who manages and controls" it.

ATI appealed the lower court's decision, and the Reporters Committee (joined by 17 media organizations) submitted an amicus brief, arguing that the decision set forth too broad an interpretation of "proprietary," and would actually exempt any university record from VFOIA. Specifically, ATI argued, "proprietary" should mean information that provides its holder with a commercial or competitive advantage.

The Virginia Supreme Court today upheld the lower court's definition of proprietary, but made clear that the exemption should be read narrowly and in the context of six other things a public university must prove in order to withhold information under that exemption, concluding that "competitive disadvantage is the overarching principle guiding application of the exemption."

"Defining the statutory term 'information of a proprietary nature' is only one of the requirements for establishing the exemption. There are seven statutory requirements under [the code]," the court wrote.

The state supreme court also agreed with the lower court that state agencies may charge VFOIA requesters for the time it takes to do a review of requested documents to see if any exemptions apply. The court said such redaction review was covered in the statute because the law allows agencies to charge for the cost of "searching." Both ATI and the Reporters Committee had argued that the state, not the requester, should bear the cost of reviewing documents for possible exemptions.