American Tradition Institute v. Rector & Visitors of University of Virginia

The Supreme Court of Virginia affirmed a lower court ruling that shielded certain documents produced or received by climate scientist Michael Mann while he was a professor at the University of Virginia (UVA) from disclosure under Virginia’s Freedom of Information Act (VFOIA). The case turned on the meaning of “proprietary” in VFOIA’s exemption for “[d]ata, records or information of a proprietary nature produced or collected by or for faculty or staff of public institutions of higher education … in the conduct of or as a result of study or research on medical, scientific, technical or scholarly issues.” The Virginia Supreme Court rejected the American Tradition Institute’s (ATI’s) “narrow construction” of “proprietary,” which ATI said required financial competitive advantage. The court said this interpretation was not consistent with legislative intent to protect public educational institutions from being placed at a competitive disadvantage compared to private universities and colleges. The court concluded that the legislative concern was motivated by a “broader notion” of competitive disadvantage that extended beyond financial injury to “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 expression.” The court cited at length the affidavit of a UVA administrator who had also served as an administrator at a private university, who said that “[i]f 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.”

A non-profit organization filed a lawsuit under the Virginia Freedom of Information Act seeking documents related to the work of former professor Michael Mann, who was involved in the so-called “Climategate” email controversy. The university stated that it had turned over approximately 20% of the 9,000 pages of documents that were responsive to the request. After the organization filed the petition in state court seeking the remaining documents, the court issued an order granting the request and giving the university until August 22, 2011 to supply the remaining documents.