UPDATE: UVA won.
A FOIA case is pending before the Supreme Court of Virginia. Given the Court’s recent history (for example, on cameras in the courtroom and FOIA and the SCC), that alone is cause for concern. This post discusses the case, what’s at issue, and how it matters for open government in Virginia.
Later this week, probably on Thursday, April 17th, the Supreme Court of Virginia will release its next batch of opinions. The Court hears cases in sessions, which happen about every 6-8 weeks. By tradition, the Court releases all published opinions in cases argued at the previous session on the last day of the next session. The Court isn’t required to follow that schedule; it can take as long as it wants. But month in and month out, the Court follows its traditional schedule in all manner of cases, complicated and simple, controversial and not.
It is cause for raised eyebrows therefore that the Court missed its usual timeframe on one case (record no. 130934) argued in January: the entity formerly known as the American Tradition Institute (ATI) and Virginia Delegate (and Congressional candidate) Bob Marshall v. the University of Virginia and former UVA professor Michael Mann. This is pure speculation, but there may be multiple opinions or close questions where the Court wanted to write carefully. For our purposes, the key points are that a FOIA case has reached Virginia’s top court, with significant implications for all Virginia citizens.
Some may remember the Supreme Court’s 2012 opinion concluding that then-Attorney General Ken Cuccinelli could not obtain Mann’s e-mails and records as part of an AG investigation of whether Mann’s climate research and publications constituted fraud. The ATI and Marshall, also in the climate change skeptic camp, have been trying to obtain Mann’s e-mails and records through the Virginia Freedom of Information Act (FOIA). UVA provided some documents but withheld thousands of others. ATI also has ponied up $4,000 for UVA’s review of the records so far. ATI & Marshall want the withheld records disclosed and their money back.
The trial court ruled for UVA, concluding both that the records were exempt and that UVA could charge for its FOIA exemption review.
Leaving aside how to apply the statute to the particular documents at issue, there are two FOIA issues on appeal. Here is how ATI & Marshall have stated them:
1. The trial court erred in holding “of a proprietary nature” as used in Va. 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 the University to demand payment for the cost of exclusion review of documents sought.
What does it mean to be “proprietary”
ATI & Marshall urge the Court to read “of a proprietary nature” narrowly, concluding that an e-mail or other record falls within that phrase only when it is part of research whose confidentiality is necessary to protect a competitive advantage for the university. If that phrase is satisfied merely by ownership or possession by someone who controls a record, then all e-mail would meet the test and the exception would swallow the rule.
Relying on the discussion of proprietary interest in a 1980 church property case, UVA and Mann urge the Court to affirm the trial court’s broader interpretation, arguing that the other parts of the exemption sufficiently narrow it. As a fallback, UVA also argues that it will be at a significant competitive disadvantage versus private educational institutions if UVA’s professors’ e-mails can be obtained through FOIA. FOIA fans surely will recognize (and feel their hackles rise at) UVA’s lamentations of the prospect of “public access laws stripping [professors] of the ability to communicate freely with colleagues” and its assertions that “The ability of University research faculty to collaborate would be damaged as the specter of public disclosure of their private communications would render colleagues less candid and less willing to engage with University faculty.” It does not seem unfair to say that UVA wants the disclosure standards and processes of scientific peer review and journals to substitute for the standards of FOIA.
But this issue is significant not only for interpretation of § 2.2-3704.4(4) and whether there’s a right to obtain e-mails of faculty at a public university. FOIA uses the term “proprietary” in many other places too, and the justices’ opinion in this case surely will have implications for the other uses of the word.
The FOIA community is rapidly discovering what litigators learned years ago – the costs of reviewing records can dwarf the costs of producing them, particularly for copious electronic records. Whether agencies can pass those costs along to requesters is a critical issue. Few requesters will be able to advance hundreds or thousands of dollars to get the records they desire, meaning that such fees can effectively bar open government. On the other hand, the argument is that if government absorbs the fees, it could impede the other regular work of agencies, and the taxpayers end up paying the costs.
In statutory terms, the Supreme Court of Virginia is being asked to determine whether the costs of reviewing and redacting records for production is part of “accessing, duplicating, supplying, or searching for the requested records,” such that an agency may assess “reasonable charges not to exceed its actual cost” under Va. Code § 2.2-3704(F).
Opinions are split in Virginia. A circuit court has said no, redaction review is not chargeable because the statute doesn’t make it so. See Albright v. Woodfin, 68 Va. Cir. 115, 2005 Va. Cir. LEXIS 104, case no. CL05-0006 (Nelson County May 26, 2005), reaffirmed on reconsideration motion at 2005 Va. Cir. LEXIS 103 (June 7, 2005). A 2007 FOIA Council advisory opinion disagreed but advised that the charges should be minimized and limited to non-legal staff time. The trial court in the ATI v. UVA case ruled that both review and redaction time were chargeable as “inherent” in what the statute does allow to be charged, although UVA argues on appeal that redaction isn’t at issue because none of the records were released in redacted form.
Cases elsewhere have reached differing conclusions too. West Virginia’s Supreme Court split in a ruling last week in King v. Nease, with the majority concluding that West Virginia’s FOIA allows a City to decide to charge a reasonable search or retrieval fee. The dissent accused the majority not only of faulty legal reasoning but also of approving a step backward in open government and encouraging “a chilling effect on citizens who desire access to government records in order to become informed of the workings of their government.” The media amicus brief discussed below describes how such issues have been resolved in a number of other states.
Unless and until the General Assembly weighs in with statutory direction, the Supreme Court of Virginia’s decision in this case is the best prospect for settling the issue in Virginia.
In addition to the main issues, the briefs and oral argument have featured discussion of intellectual property (IP) rights, particularly copyright. The interaction between FOIA and IP is an uncertain area, and we’re not aware of any prior law in the area in Virginia, so this case of first impression bears watching.
Why care about copyright and FOIA? Unlike trademarks and patents, copyright arises when qualifying documents are created, not upon registration. That creates a possible conflict between FOIA law, under which an agency’s possession of records gives rise to a legal duty to provide them to requesters, and copyright law, under which the copyright owner (usually the author) has exclusive rights of reproduction. Interestingly, § 2.2-3704.4(4) includes records being “copyrighted”, along with other forms of public release, as grounds for disclosure.
Here, UVA appears to rely on copyright as a shield against ATI’s arguments that giving Mann a copy of all of the e-mails and records (after he’d left UVA) means they’re no longer exempt for FOIA purposes. (UVA also defends this point on other grounds.) That’s a relatively narrow touch on a broad topic. ATI replies that copyright does not exist in the records in question and is not a shield from FOIA, which raises the broader issue. It will be interesting to see how the justices see copyright impacting this case, if at all.
Conceivably, the case could touch on other hot topics too, such as privacy rights in work e-mail and academic freedom.
It’s nice to have friends
The “amicus” briefs filed in this case also show its significance. Amicus curiae means “friend of the court,” and the term refers to participation in a case (usually by filing a brief) by people or groups that aren’t parties but who have a viewpoint (which may or may not align with one of the parties) that may be helpful to the Court.
In this case, the Reporters Committee for Freedom of the Press, the Associated Press, and more than a dozen other media organizations filed a brief supporting ATI & Marshall, arguing that the press and public should not have access thwarted by a broad definition of proprietary or by high fees for reviewing and redacting records. Strange bedfellows or not, this is an important and valuable contribution to the case.
On the other side, educational and scientific organizations have filed a brief supporting UVA & Mann, arguing that the proprietary exemption supports academic freedom and asserting that review and redaction fees should be allowed. Fees alleviate the “significant financial and administrative burdens” of FOIA compliance and perform “an important winnowing function” by encouraging requesters to be specific, they say. Associations of professors and scientists filed a second brief also highlighting academic freedom and the “chilling effect” of disclosure.
The open government community should be among the many watching closely this Thursday to see how Virginia’s FOIA climate will change. The best way to get a new opinion is to check the Supreme Court’s chronological opinions page on its website, where the new batch of opinions is usually posted by mid-late morning on the day of release. Analysis of opinions is usually available later in the day from Steve Emmert at his Virginia Appellate News & Analysis blog. We may think he’s not greedy enough when it comes judicial openness, but his analysis is always worth reading.