As expected, the Virginia Supreme Court has today issued its opinion on the Mann emails FOI case. It has decided that the emails of the university are indeed deemed "proprietary" and therefore not subject to disclosure.
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.
It's an amazing decision. Having brought state universities under the remit of freedom of information legislation, the legislature now sees the courts effectively writing them out again. Legislators must wonder who is in charge.
The document shredders are being fired up as we speak.