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Climate Scientist's Research Documents Protected by Virginia

Bloomberg BNA — The research records of climate scientist Michael Mann are exempt from disclosure under Virginia's Freedom of Information Act, the Virginia Supreme Court ruled April 17.

“Because we do not attribute to the General Assembly an intention to disadvantage the Commonwealth's public universities in comparison to private colleges and universities, we hold that the higher education research exemption's desired effect is to avoid competitive harm not limited to financial matters,” Justice Donald W. Lemons wrote for the court.

The court relied in particular on the affidavits of scholars, quoting the vice president and provost of the University of Virginia at length, who argued that requiring release of the requested documents in this situation would chill the desire of academics to work for and with the university.

Other states addressing the issue of promoting academic inquiry balanced against open public records have taken a variety of approaches.

Legislative Intent Drives Decision

VFOIA exempts from production “[d]ata, records or information of a proprietary nature” generated “in the conduct of or as a result of study or research on medical, scientific, technical or scholarly issues.”

The American Tradition Institute, now called the Energy & Environment Legal Institute, opposes environmental regulations, and sought all of the documents that climate scientist Mann “produced and/or received while working for the university,” which he did from 1999 to 2005.

The primary argument regarded whether the documents ATI sought were “proprietary” under the act. UVA argued that the definition should be the one articulated by the Virginia Supreme Court in Green v. Lewis: “A proprietary right is a right customarily associated with ownership, title, and possession. It is an interest of a right of one who exercises dominion over a ting or property, of one who manages and controls.”

ATI argued for a narrower definition, equating “proprietary” with “competitive advantage,” and limited to disclosures that would cause pecuniary harm.

The court rejected ATI's interpretation, finding that it was not consistent with the intent of the Virginia General Assembly in enacting the exemption.

Concurring, Justice William C. Mims emphasized that the meaning of “proprietary” as interpreted by the state supreme court in this section of the law may not necessarily apply across every occurrence of the word in the statute.

The court also held that it was proper under VFOIA for UVA to charge ATI for expenses incurred in reviewing documents to determine whether they are responsive, are not exempt, and can be disclosed without violating other law.

Other Approaches

Though the analysis the Virginia court was particular to that state's FOIA statute, other states have taken up the issue of academic freedom in the face of open public records acts and have adopted different approaches.

Several states have enacted specific statutory exemptions covering academic records, and have drawn their exemptions more or less narrowly.

Nebraska, for example, has a relatively narrow exemption, focused largely on commercial concerns. Its law exempts “[t]rade secrets, academic and scientific research work which is in progress and unpublished, and other proprietary or commercial information which if released would give advantage to business competitors and serve no public purpose.”

Oklahoma law is somewhat broader, and appears focused more specifically on academic freedom. It exempts “any information related to research, the disclosure of which could affect the conduct or outcome of the research.”

And Wyoming simply exempts “[t]he specific details of bona fide research projects being conducted by a state institution."

Case-By-Case Analysis

California, in contrast, does not have a specific academic freedom exemption in its law, the California Public Records Act.

However at least one California Appeals Court, in Humane Soc. of the U.S. v. Superior Ct. of Yolo Cnty., found the same chilling concerns that the Virginia court cited were sufficient to justify exempting similar documents from public disclosure under the CPRA's “catchall” provision. This provision exempts from public disclosure any document where the public interest in nondisclosure outweighs the public interest in disclosure.

In that case, the Humane Society sought records from an institute affiliated with the University of California that had concluded that Proposition 2, the Prevention of Farm Animal Cruelty Act, appearing on the 2008 ballot, would be detrimental to California's egg industry. The Humane Society argued that this research was flawed because it had been funded, in part, by agribusiness interests.

The court concluded that requiring disclosure of the records “would fundamentally impair the academic research process to the detriment of the public that benefits from the studies produced by that research,” and that there was minimal public interest in the disclosure because all of the important information, particularly regarding methodology and results, was in the published report.

The California court was careful to point out, however, that it was not creating a categorical “academic researcher's exemption,” but rather that the public interest balancing had to be undertaken in every case.

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