Saturday, April 19, 2014

Virginia Supreme Court gives expansive definition to "proprietary" in FOIA case involving documents of Michael Mann

IPBiz examined the "trade secret" exemption to FOIA requests in the post Wyoming Supreme Court adopts FOIA definition of "trade secret" in "public records" dispute In the case American Tradition Institute v. University of Virginia , the Virginia Supreme Court adopted an expansive definition to the meaning of "proprietary" which gives broad scope to exemptions from Virginia's "Freedom of Information" law.

The case involved a FOIA request for records at the University of Virginia
related to climate researcher Michael Mann.
Later in time, Mann himself intervened:

In September 2011, Professor Mann filed a motion to
intervene, arguing that the University could not sufficiently
protect his interests in privacy, academic freedom, and free
speech. The trial court granted his motion on November 1,

By 2013, the legal issue centered on the meaning of "proprietary":

The parties primarily disputed
documents that may have been "proprietary." The significance
of the dispute is highlighted by the use of the term in Code §
2.2-3705.4(4) which addresses certain public records that are
exempt from disclosure. To be exempt, the public record must

Data, records or information of a
proprietary nature produced or collected
by or for faculty or staff of public
institutions of higher education, other
than the institutions' financial or
administrative records, in the conduct of
or as a result of study or research on
medical, scientific, technical or
scholarly issues, whether sponsored by the
institution alone or in conjunction with a
governmental body or a private concern,
where such data, records or information
has not been publicly released, published,
copyrighted or patented.
Code § 2.2-3705.4(4).

The "intellectual property" issue:

UVA argued that the definition of "proprietary" applied
in Green v. Lewis, 221 Va. 547, 555, 272 S.E.2d 181, 186
(1980), should be applied in the VFOIA context. In
Green we stated:

"A proprietary right is a right customarily associated
with ownership, title, and possession. It is an interest or a
right of one who exercises dominion over a thing or property,
of one who manages and controls." Id. In contrast, ATI
argued that the General Assembly intended to equate
"proprietary" with "competitive advantage."

At trial, the court adopted the meaning in Green.

As to the analysis:

ATI’s first assignment of error focuses exclusively on
the trial court's construction of the statutory term
"information of a proprietary nature." VFOIA contains no
definition of "proprietary" upon which we may rely.
6 See Code § 2.2-3701. Therefore, we must use accepted rules of
statutory construction to interpret the provisions of Code §

The Supreme Court rejected ATI's argument:

We reject ATI's narrow construction of financial
competitive advantage as a definition of "proprietary" because
it is not consistent with the General Assembly's intent to
protect public universities and colleges from being placed at
a competitive disadvantage in relation to private universities
and colleges. In the context of the higher education research
exclusion, competitive disadvantage implicates not only
financial injury, but also harm to university-wide research
efforts, damage to faculty recruitment and retention,
undermining of faculty expectations of privacy and
confidentiality, and impairment of free thought and

The Supreme Court credited testimony of John Simon, which

If U.S. scientists at public institutions
lose the ability to protect their
communications with faculty at other
institutions, their ability to collaborate
will be gravely harmed. (...)
For faculty at
public institutions such as the University
of Virginia, compelled disclosure of their
unpublished thoughts, data, and personal
scholarly communications would mean a
fundamental disruption of the norms and
expectations which have enabled research
to flourish at the great public
institutions for over a century . . . .
Scientists at private institutions such as
Duke, where I previously worked, that are
not subject to state freedom of
information statutes, will not feel that
it is possible to continue collaborations
with scientists at public institutions if
doing [s]o means that every email or other
written communication discussing data,
preliminary results, drafts of papers,
review of grant proposals, or other
related activities is subject to public
release under a state FOIA in
contravention of scholarly norms and
expectations of privacy and
confidentiality. . . .

One notes that, although the Supreme Court rejected
ATI's argument about "competitive advantage," the text
of Simon the Court credited related to [financial] "competitive advantage,"
rather than to the Green definition of "proprietary."

The decision does not say "who paid for"
Mann's research. The relevant Virginia statute includes the
text -- whether sponsored by the
institution alone or in conjunction with a
governmental body or a private concern --

There is a problem with the Green definition of "proprietary"
as to federally-funded research [Green: A proprietary right is a right customarily associated
with ownership, title, and possession. ]
In federally-funded work, the federal recipient does not own
the results of the work. As Gerald Barnett has pointed out in the context
of Bayh-Dole

Bayh-Dole assures the government of its interest in subject inventions, but does not dictate university interests. There is no vesting of title to inventions, as some have claimed. University administrators may request assignment of a subject invention,

Gerald Barnett in a post
Reef or Trench? University research and open access to results gets
into some issues with federally-funded research.
Discussing OMB Circular A-110 (2 CFR 215) , Barnett writes

Under a grant, the investigators typically have an obligation to submit reports, including a final report, and there may be requirements for delivery of data as well. However, there typically is not a requirement to publish results.

Of the Virginia statute text --where such data, records or information
has not been publicly released, published,
copyrighted or patented. --, one wonders the status of information
not publicly released but obligated for disclosure to a governmental body?
Does a member of the public have a right to see information that should
be disclosed to the government funding body, even if such information is
not otherwise published?

Separately, the text of Simon argues that a limited definition of "proprietary"
would place the public school (University of Virginia) at a disadvantage relative
to a private school (e.g., Duke). But taxpayers pay for what goes on at the public school.
There is a difference.


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