For Immediate Release:
April 17, 2014
Lead Attorney in ATI v. UVA Comments on Today’s Virginia Supreme Court Decision
Washington, D.C. – In a decision handed down today by the Virginia Supreme Court (American Tradition Institute v. Rector and Visitors, Case No. 130934), the Court affirmed the lower court’s decision that allows the University of Virginia to keep secret all its emails. The Court adopted ATI’s proposed rule, advanced before the court in briefs and at oral argument that UVA should only be allowed to protect records whose release would harm the University’s competitive advantage in either the marketplace of ideas or goods and services. The University argued that mere ownership or custody of the emails was sufficient to keep them secret. In its decision, the Court ignored UVA’s argument, adopting ATI’s argument regarding proprietary if attributing the argument to UVA.
In essence, the Court split the baby in two. It recognized the value and power of ATI’s interpretation of the Virginia Freedom of Information Act, but allowed UVA to keep its emails secret nonetheless. The Court did not discuss ATI’s many specific examples of how the emails failed to offer any competitive advantage to the University. Instead, it accepted UVA’s unsubstantiated fears that release of the emails would significantly chill intellectual debate and on that basis allowed UVA to continue to operate under a veil of secrecy that the citizens may not penetrate.
Unfortunately, this ruling also suggests that all state agencies can withhold all emails on the claim that they will have more difficulty competing for quality employees if VFOIA is indeed applied to their public email accounts.
Lead counsel, David W. Schnare, Director of the Free Market Environmental Law Clinic, responded to the decision, saying: “We are grateful that the Court adopted our argument and in so doing helped establish a baseline for future cases. However, the Court’s attribution our argument to the University, which had argued against it repeatedly, does beg questions about the opinion’s reasoning.”
Noting that many news outlets, most of which are fairly characterized as ‘progressive’, had sided with ATI, Schnare said, “The news media have made it clear to us that the kind of secrecy the University wants is not in the best interests of either the state or its citizens.”
The story continues elsewhere where these emails, central to what the UK Telegraph’s Christopher Booker rightly called “the worst scientific scandal of our generation”, reside both in other taxpayer-funded fora and in Michael Mann’s hands (courtesy of UVA). The same records are being sought as part of the discovery process in private litigation and, if that court follows standard civil discovery procedure, they will become public. In addition, the Free Market Environmental Law Clinic is seeking similar emails from the University of Arizona – an ongoing case that will reexamine in much greater depth whether there is any actual chilling effect from release of emails, or if those are mere fears of faculty whose behaviors and misbehaviors have never been held up to public inspection.