756 S.E.2d 435
Va.2014Background
- ATI requested all documents produced or received by Dr. Michael Mann at the University of Virginia (UVA) under VFOIA; UVA identified tens of thousands of potentially responsive items and negotiated fees with ATI.
- UVA reviewed an initial subset after ATI paid deposits, then asked for additional funds to continue review; ATI paid and later filed a mandamus petition when production lagged.
- The trial court ordered procedures for in camera review and release of some documents, and conducted exemplar in camera reviews to decide exemptions under Code § 2.2-3705.4(4) (higher-education research/proprietary exclusion).
- UVA asserted the court should read “proprietary” as an ownership/possession interest (Green definition) and withheld many emails as proprietary research, personnel, or scholastic records; ATI urged a narrower “competitive/financial harm” meaning.
- The trial court accepted UVA’s construction, allowed UVA to charge fees for document exclusion review under Code § 2.2-3704(F), and upheld UVA’s withholding for the exemplars; ATI appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Meaning of “of a proprietary nature” in § 2.2-3705.4(4) | "Proprietary" should mean information whose disclosure would cause commercial/pecuniary competitive harm | "Proprietary" means an ownership/possession-type interest (dominion, control) consistent with Green | Court adopted Green definition (ownership/possession/dominion), rejecting ATI's narrow financial-only construction |
| Burden to prove exclusion under § 2.2-3705.4(4) (seven requirements) | UVA failed to prove all statutory elements for the exemplars | UVA produced evidence and expert/administrator affidavits supporting each element for withheld records | Court deferred to trial court’s factual findings and held UVA met its burden for the exemplars reviewed |
| Whether documents released to Mann (for litigation) waived the exclusion | ATI argued UVA waived protection by providing documents to Mann | UVA and trial court treated access to counsel/party under protective order as not public release | Court found trial court’s conclusion that documents were not publicly released was supported by evidence (no waiver) |
| Whether UVA may charge requesters for the cost of exclusion review under § 2.2-3704(F) | Fees should be limited to accessing, duplicating, supplying, searching—not substantive legal/exclusion review | "Searching" and related terms include inquiry/scrutiny to determine whether records are exempt; reasonable fees for review are permitted | Court held reasonable charges may include costs of review to determine applicability of statutory exclusions; affirmed trial court’s fee ruling |
Key Cases Cited
- Green v. Lewis, 221 Va. 547, 272 S.E.2d 181 (1980) (defines "proprietary" as ownership/title/possession—dominion and control)
- Conyers v. Martial Arts World of Richmond, Inc., 273 Va. 96, 639 S.E.2d 174 (2007) (de novo review of statutory construction)
- Tuttle v. Webb, 284 Va. 319, 731 S.E.2d 909 (2012) (review standard for mixed fact-law questions; deference to trial court factual findings)
- Napper v. ABM Janitorial Servs., 284 Va. 55, 726 S.E.2d 313 (2012) (mixed question of law and fact standard)
- Online Res. Corp. v. Lawlor, 285 Va. 40, 736 S.E.2d 886 (2013) (insufficient-evidence standard: reverse only if plainly wrong or without supporting evidence)
- Falls Church v. Protestant Episcopal Church in the U.S., 285 Va. 651, 740 S.E.2d 530 (2013) (uses ordinary-meaning statutory construction principles)