The Supreme Court of Virginia today found unanimously in favor of the University of Virginia in its attempt to protect its employees from unwarranted intrusions into their privacy through the commonwealth’s Freedom of Information Act (VFOIA). In doing so, the Court rebuffed efforts by the American Tradition Institute (ATI) to gain access to the private correspondence of UVa researchers. The Court’s decision signals to scientists at public universities that the pursuit of scientific knowledge will be protected in Virginia, no matter how their research results might be received.
Much of the discussion centered around whether the university was correct in defining deliberative records as “proprietary.” The Court pointed out that the VFOIA doesn’t define the term proprietary, so it was up to the court to interpret the term, which did so by inferring the “legislature’s intent from the…language used.”
The Court found that the word “proprietary” should not be limited to records that would put the university at a financial competitive advantage, recognizing that other types of disclosure could disadvantage the university. Scientists who feel that every email they write would be subject to public disclosure could leave the university for one that afforded more privacy, for example, or be hesitant to criticize weaknesses in a colleague’s draft research.
The meat of the decision can be found on page 15:
“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 expression.”
Let me repeat that last clause: the impairment of free thought and expression. It’s a big deal that the Court recognized the fact that excessive disclosure can have a significant chilling effect on researchers’ ability to communicate frankly with each other. As I’ve written before, demanding private email correspondence among scientists is the 21st Century equivalent to eavesdropping on conversations around the water cooler. All of us need safe space to develop ideas and open them up to scrutiny so that we can make them better.
The Court quotes liberally from a brief submitted by UVa Provost John Simon: “For faculty at public institutions such as the University of Virginia,” wrote Simon, “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.”
The Court recognized the disadvantage this would create for UVa and other institutions should scholarly communications not be protected:
“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.”
The court also found that UVA provided sufficient evidence in exempting certain material from disclosure. Further, the court affirmed the trial court’s finding that UVA could charge ATI reasonable fees for reviewing whether certain records are exempt from disclosure. Finally, a concurring opinion from Justice Mims suggested that the legislature better define “proprietary,” as the word appears in numerous other sections of the Virginia Freedom of Information Act not applicable to this case.
Where Do We Go From Here?
At a recent conference at George Washington University, I compared friend-of-the-court briefs submitted on both sides of this issue—particularly, one by UCS and the American Association of University Professors supporting the university, and one by the Reporters Committee for Free Press supporting ATI—and pointed out that the two briefs are not all that different. No party to this case has argued that all records should be disclosed, nor has any party argued that all records should be withheld. Rather, we all agree that the statute should be interpreted in a way that allows for public accountability while protecting the ability of scientists to do their best work.
What is required for this to happen? As a start, all state legislatures should examine their open records laws to ensure that the appropriate exemptions exist without being so broad as to compromise accountability.
But reform must go well beyond statute. University lawyers and their associations should devote time and resources to determining and publicly disclosing how they will respond to open records requests. Those who work for public institutions should be made aware of their rights and responsibilities for responsibly using email systems.
Scientific societies should recognize that sometimes, what is in the best interest of the university won’t be in the best interest of the individual scientist, and should offer programs that offer legal assistance to protect researchers’ privacy. Groups such as the National Academy of Sciences should provide guidance to legislators and universities on what kinds of materials should be disclosed and what kinds should be protected.
Further, proactive disclosure could avoid costly and time-consuming lawsuits. Because really, Freedom of Information Act requests should be considered the option of last resort for those who want to understand the public’s business. If we develop a shared understanding of what should be disclosed, and a system exists to proactively disclose certain records, we can avoid these distractions and allow researchers to get back to doing what they’re supposed to do: learning more about the world around us.