American Tradition Inst. v. Rector and Visitors ( 2014 )

Present: Kinser, C.J., Lemons, Goodwyn, Millette, Mims, and
Powell, JJ., and Lacy, S.J.
AMERICAN TRADITION INSTITUTE,
ET AL.
v. Record No. 130934 OPINION BY JUSTICE DONALD W. LEMONS
April 17, 2014
RECTOR AND VISITORS OF THE
UNIVERSITY OF VIRGINIA, ET AL.
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
Paul F. Sheridan, Judge Designate
In this appeal, we consider whether the Circuit Court of
Prince William County ("trial court") erred by denying a
request for disclosure of certain documents under the Virginia
Freedom of Information Act ("VFOIA"), Code § 2.2-3700 et seq.,
and whether a public body may impose charges for the cost of
reviewing documents under the statutory exclusions. 1
I. Facts and Proceedings Below
Dr. Michael Mann ("Professor Mann") is a climate
scientist and former professor at the University of Virginia
1
Code § 2.2-3705.4 describes records that fall outside
the scope of VFOIA as "exclusions." However, the introduction
to VFOIA describes documents falling outside the scope of
VFOIA as "exemptions": "Unless a public body or its officers
or employees specifically elect to exercise an exemption
provided by this chapter or any other statute, every meeting
shall be open to the public and all public records shall be
available for inspection and copying upon request. All public
records and meetings shall be presumed open, unless an
exemption is properly invoked." See Code § 2.2-3700(B)
(emphasis added). We conclude there is no practical
distinction between the use of the terms "exemption" and
"exclusion" within the context of VFOIA. The Code, the
parties, the trial court, and this Court's prior decisions
have referred to "exclusion" and "exemption" interchangeably.
("UVA"), whose scholarly work has generated much scientific
and political interest. 2 On January 6, 2011, American
Tradition Institute and Robert Marshall (collectively, "ATI")
sent a request to UVA, a public university, seeking all of the
documents that "Dr. Michael Mann produced and/or received
while working for the University . . . and otherwise while
using its facilities and resources . . . ."
Following ATI’s January 6, 2011 request, UVA responded
that it could not comply within the pre-set five-day
compliance deadline under the VFOIA. See Code § 2.2-3704(B).
ATI and UVA negotiated over a document production and fee
schedule. After multiple email exchanges, ATI and UVA agreed
to a production schedule and a $2,000 deposit to defray costs.
On March 10, 2011, UVA received ATI’s $2,000 deposit and began
assessing its VFOIA request shortly thereafter.
On April 6, 2011, UVA sent ATI an email which read in
part:
I am writing to follow up on your
Freedom of Information Act request of
January 6, 2011, for a wide array of
records and documents concerning former
University of Virginia faculty member
Michael Mann. As I previously informed
you, the University has identified 34,062
potentially responsive documents on the
2
This is the second lawsuit involving Professor Mann's
research to reach this Court. See Cuccinelli v. Rector &
Visitors of the Univ. of Va., 283 Va. 420, 722 S.E.2d 626
(2012).
2
server we have previously agreed to be the
sole repository of any possibly responsive
material. We have now segregated from
that mass of documents approximately 8,000
that are potentially responsive to your
request and have been reviewing these
documents for possible disclosure. As of
today we have exhausted in this effort the
initial payment you made. Consequently,
we will undertake no further review unless
you wish to pay another installment on our
original estimate of $8,500.
To date we have reviewed
approximately 1,000 of the roughly 8,000
documents potentially responsive to your
request. I anticipate that a first group
of responsive, non-exempt documents which
may be lawfully disclosed will be released
to you shortly.
On April 7, 2011, ATI complied with UVA’s request and
deposited additional funds so that the University would
"continue [its] work to produce responsive documents." On
April 29, 2011, UVA’s associate general counsel indicated that
the first set of documents would be available by May 6, 2011.
However, ATI received no documents on that date so it filed a
"Petition for Mandamus and Injunctive Relief" ("Petition") in
the trial court. ATI’s Petition asked the trial court to:
(1) [O]rder [UVA] to provide the requested
documents on a timely schedule; (2) bar
[UVA] from demanding payment for any costs
other than "accessing, duplicating,
supplying, or searching for the requested
records"; (3) order the Parties to engage
in a process that will minimize the number
of excluded documents the Court will have
to review in camera; (4) order payment of
the Petitioners' reasonable costs
associated with the instant matter; and
3
(5) order such necessary and proper
injunctive relief or other injunctive
relief as this Court deems just and
proper.
On May 24, 2011, the trial court entered an "Order on
Protection of Documents" which stated, in part:
The Respondent [UVA] may designate as
Exempt Information any requested public
record. Such designation shall constitute
a representation to the Court that the
Respondent . . . in good faith believes
that the information so designated
constitutes Exempt Information . . . .
Respondent shall provide the Petitioners'
[ATI] counsel . . . copies of all Exempt
Information in a form to be agreed upon
between the parties. . . . The
Petitioners shall have 90 days after
receipt of the Exempt Information to
review it, negotiate with the Respondents,
and if they choose, file a petition with
the Court for in camera review for
determination as to whether the Respondent
properly designated the records as Exempt
Information as defined herein. 3
In an accompanying order, the trial court also directed UVA to
release 1,793 emails "no later than 90 days after the date of
this order."
In June 2011, the trial court conducted a hearing on
whether UVA could charge ATI for the costs of reviewing the
3
ATI’s counsel was given access to all of the requested
documents, so they could review the materials exclusively for
the purpose of litigation. The trial court expressly limited
ATI’s use of the documents to those purposes "necessary in
connection with this action." The trial court forbade ATI
from "disclosing the [protected documents] to any other person
or entity."
4
identified records according to the requirements of various
statutory exemptions and limitations. After hearing oral
argument the trial court entered an order holding that review
of records sought pursuant to the Act to assure that the
records are responsive, are not exempt from disclosure, and
may be disclosed without violating other provisions of law is
a necessary part of the process of "accessing, duplicating,
supplying, or searching for the requested records" explicitly
authorized by § 2.2-3704(F) and therefore represented a cost
that may be imposed upon the requester under the VFOIA.
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,
2011.
Throughout 2012, the parties reviewed the requested
documents and developed a series of exemplars for the trial
court to review. UVA offered 14 exemplars. ATI proposed 17.
On September 17, 2012 and April 2, 2013, the trial court
conducted an in camera review of the exemplars and heard oral
argument to determine whether the documents should be
classified as exempt. 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 §
5
2.2-3705.4(4) which addresses certain public records that are
exempt from disclosure. To be exempt, the public record must
be:
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).
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." In application,
ATI limited its concept of competitive advantage to
disclosures that would cause pecuniary harm. The trial court
6
adopted UVA’s position and applied the concept of
"proprietary" discussed in Green.
After reviewing the exemplars and hearing oral argument,
the trial court entered its final order on the Petition and
held that:
(1) Professor Mann's business
correspondence was public record; but that
his "purely personal correspondence not
relating to public business" did not
constitute a public record under VFOIA;
(2) Professor Mann's emails were scientific
and scholarly;
(3) Professor Mann's emails were not
"publicly released, published, copyrighted,
or patented"; 4
(4) the definition of "proprietary" in Code
§ 2.2-3705.4(4) means "a thing or property
owned or in the possession of one who
manages and controls them, in this case,
the University . . . . The concept of
commercial competitive advantage in [Code §
2.2-3705.6] does not modify the meaning of
'proprietary nature' within [Code § 2.2-
3705.4(4)]"; and
(5) the [e]xemplars were either personal
emails not qualifying as public records or
they met the requirements of the
"proprietary research," "scholastic record"
and "personnel record" exclusions.
The trial court upheld UVA's exclusion of Professor Mann's
emails from production.
4
Both parties agree that issues regarding copyright are not
before this Court on appeal.
7
ATI noted its appeal to this Court, and we awarded an
appeal on the following assignments of error:
1. The trial court erred in holding "of a proprietary
nature" as used in [Code] § 2.2-3705.4(4) means "a thing
or property owned or in the possession of one who manages
and controls them."
2. The trial court erred in allowing [UVA] to demand
payment for the cost of exclusion review of documents
sought.
3. The trial court erred in finding UVA carried its
burden of proof that the records withheld exclusively
under [Code] § 2.2-3705.4(4) meet each of the
requirements for exclusion.
II. Analysis
A. Standard of Review
Proper construction of the phrase "of a proprietary
nature" under Code § 2.2-3705.4(4), and the determination
whether Code § 2.2-3704(F) permits UVA to charge ATI for the
costs associated with review of the documents under the
statutory exemptions, are questions of law that are reviewed
de novo. See Conyers v. Martial Arts World of Richmond, Inc.,
273 Va. 96, 104-05, 639 S.E.2d 174, 178 (2007). Whether
documents of the types represented in the exemplars submitted
to the court should be excluded under Code § 2.2-3705.4(4) is
a mixed question of law and fact. See Napper v. ABM
Janitorial Servs., 284 Va. 55, 61, 726 S.E.2d 313, 316 (2012).
Therefore, "[w]e give deference to the trial court's factual
findings and view the facts in the light most favorable to the
8
prevailing part[y,] but we review the trial court's
application of the law to those facts de novo." Tuttle v.
Webb, 284 Va. 319, 324, 731 S.E.2d 909, 911 (2012)(quoting
Caplan v. Bogard, 264 Va. 219, 225, 563 S.E.2d 719, 722
(2002)).
B. The Virginia Freedom of Information Act
VFOIA has existed, in one form or another, since 1968.
Acts of Assembly, Ch. 479 (1968). Its primary purpose is to
facilitate openness in the administration of government. Code
§ 2.2-3700(B) states:
By enacting this chapter, the General
Assembly ensures the people of the
Commonwealth ready access to public
records in the custody of a public body or
its officers and employees, and free entry
to meetings of public bodies wherein the
business of the people is being conducted.
The affairs of government are not intended
to be conducted in an atmosphere of
secrecy since at all times the public is
to be the beneficiary of any action taken
at any level of government. Unless a
public body or its officers or employees
specifically elect to exercise an
exemption provided by this chapter or any
other statute, every meeting shall be open
to the public and all public records shall
be available for inspection and copying
upon request. All public records and
meetings shall be presumed open, unless an
exemption is properly invoked.
VFOIA also requires that "[t]he provisions of this chapter
shall be liberally construed to promote an increased awareness
by all persons of governmental activities and afford every
9
opportunity to citizens to witness the operations of
government. Any exemption from public access to records or
meetings shall be narrowly construed and no record shall be
withheld or meeting closed to the public unless specifically
made exempt pursuant to this chapter or other specific
provision of law." Id. (Emphasis added). These governing
principles guide our understanding of VFOIA's specific
provisions.
There are general exemptions to disclosure contained in
VFOIA. For example, a VFOIA request only applies to a "public
body or its officers and employees." See Code § 2.2-3701.
Similarly, VFOIA only applies to "public records in the
custody of a public body." 5 Accordingly, all private records
5
Code § 2.2-3701 defines a public records as:
[A]ll writings and recordings that consist
of letters, words or numbers, or their
equivalent, set down by handwriting,
typewriting, printing, photostatting,
photography, magnetic impulse, optical or
magneto-optical form, mechanical or
electronic recording or other form of data
compilation, however stored, and
regardless of physical form or
characteristics, prepared or owned by, or
in the possession of a public body or its
officers, employees or agents in the
transaction of public business. Records
that are not prepared for or used in the
transaction of public business are not
public records.
10
are exempt. These general exemptions create the basic
parameters for which documents may be requested and from whom.
In addition to these general exemptions, the VFOIA
creates many specific exemptions. One of these specific
exemptions is found in Code § 2.2-3705.4 in a section entitled
"[e]xclusions to application of chapter; educational records
and certain records of educational institutions." Code § 2.2-
3705.4(4) is the primary subject of this dispute.
C. Exemption from Disclosure Under Code § 2.2-3705.4(4)
Code § 2.2-3705.4(4) is a specific exemption which
applies to VFOIA requests to public institutions of higher
education. The disputed language of the exemption provides in
relevant part:
The following records are excluded
from the provisions of this chapter but
may be disclosed by the custodian in his
discretion, except where such disclosure
is prohibited by law:
. . . .
4. 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
11
has not been publicly released, published,
copyrighted or patented.
See Code § 2.2-3705.4(4)(emphasis added).
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 §
2.2-3705.4(4).
We have repeatedly held that "[w]hen . . . a statute
contains no express definition of a term, the general rule of
statutory construction is to infer the legislature's intent
from the . . . language used." Hubbard v. Henrico Ltd.
P'ship, 255 Va. 335, 340, 497 S.E.2d 335, 338 (1998); City of
Virginia Beach v. Flippen, 251 Va. 358, 362, 467 S.E.2d 471,
473-74 (1996). When the legislature leaves a term undefined,
courts must "give [the term] its ordinary meaning, [taking
6
Statutes in some other states deal more explicitly with
disclosure of documents under Freedom of Information requests
tendered to public universities. For example, the Nebraska
legislature excludes from disclosure all "[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." Neb. Rev. Stat. § 84-712.05(3).
Similarly, Oklahoma's legislature has provided that "a public
body may keep confidential. . . : 1. any information related
to research, the disclosure of which could affect the conduct
or outcome of the research." 51 Okla. Stat. § 24A.19.
12
into account] the context in which it is used." Dep't of
Taxation v. Orange-Madison Coop. Farm Serv., 220 Va. 655, 658,
261 S.E.2d 532, 533-34 (1980).
ATI argues that "information of a proprietary nature" is
limited to that which gives the governmental body a commercial
competitive advantage or, stated negatively, that Code § 2.2-
3705.4(4) only protects those documents which, if disclosed,
would financially injure UVA. 7 ATI's proposed construction of
"proprietary" is too narrow.
In our 1980 decision, Green, we applied the ordinary
meaning of "proprietary": "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." 221 Va. at 555, 272 S.E.2d at 186.
See also Falls Church v. Protestant Episcopal Church in the
United States, 285 Va. 651, 740 S.E.2d 530 (2013). UVA
advanced this definition at trial and continues to do so on
appeal. Because VFOIA does not provide a definition of
7
In its opening brief ATI argued: "It is one thing to own
the secret recipe for CokeTM and entirely another to profit
from that secret. UVA may have custody over any withheld
emails containing data, records, and information, but a
proprietary interest must rise from the data itself and not
merely because UVA owns or controls either the email or the
data within it." ATI also repeatedly likened Code § 2.2-
3705.4(4)’s use of the term "proprietary" to other statutes
which used the term "proprietary" in the context of trade
secrets, competitive position, and financial harm.
13
"proprietary" and we have previously construed the ordinary
meaning of that term, we hold that the trial court correctly
applied Green in this case.
Defining the statutory term "information of a proprietary
nature" is only one of the requirements for establishing the
exemption. There are seven statutory requirements under Code
§ 2.2-3705.4(4). In order to exclude public records from
disclosure under a VFOIA request, a public university or
college must prove:
(1) the request is for data, records or
information;
(2) such data, records, or information is
of a proprietary nature;
(3) such data, records, or information is
produced or collected by or for faculty or
staff of a public institution of higher
education;
(4) such data, records, or information is
produced or collected in the conduct of or
as a result of research on medical,
scientific, technical, or scholarly
issues, or as a result of such study or
research;
(5) such study or research is sponsored by
the institution alone or in conjunction
with a governmental body or a private
concern;
(6) such data, records, or information are
not the institution’s financial or
administrative records; and
14
(7) such data, records, or information
have not been publicly released,
published, copyrighted or patented.
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. This broader notion of competitive disadvantage
is the overarching principle guiding application of the
exemption.
In this case, many noted scholars and academic
administrators submitted affidavits attesting to the harmful
impact disclosure would have in these circumstances. John
Simon, Vice President and Provost of UVA and former Vice-
Provost of Duke University, stated that:
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. The result will
15
be a loss of scientific and creative
opportunities for faculty at institutions
in states which have not established
protections under state FOIAs for such
communications. . . . 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. . . . Compelled
disclosure [in this case] will also impair
recruitment and retention of faculty . . .
. I can state unequivocally that
recruitment of faculty to an institution
like the University of Virginia will be
deeply harmed if such faculty must fear
that their unpublished communications with
the scientific collaborators and scholarly
colleagues are subject to involuntary
public disclosure. We will also lose key
faculty to recruitments from other
institutions – such as Duke, if their
continued work at University of Virginia
will render their communications
involuntarily public.
Because we do not attribute to the General Assembly an
intention to disadvantage the Commonwealth's public
16
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 Green definition of
"proprietary" is consistent with that goal. Therefore, the
circuit court did not err in applying that definition.
D. Sufficiency of the Evidence
Based on the record and our in camera review of the
exemplars, we cannot say that the trial court's judgment that
some of the exemplars were not public records and all of the
other exemplars satisfied each of the exemption’s requirements
was plainly wrong or without evidence to support it. 8 Online
Res. Corp. v. Lawlor, 285 Va. 40, 60, 736 S.E.2d 886, 897
(2013)(citing Atrium Unit Owners Ass'n v. King, 266 Va. 288,
293, 585 S.E.2d 545, 548 (2003)("A judgment should be reversed
for insufficient evidence only if it is plainly wrong or
without evidence to support it.") (internal quotation marks
8
ATI argues that UVA waived Code § 2.2-3705.4(4)'s
exclusion by releasing the documents to Dr. Mann in
preparation for trial. Although ATI argues waiver, this
assertion is actually a claim that UVA has not met its burden
of proof. That the information has not been publicly released
is a requirement of the exemption. Although the trial court
stated that it was expressly reserving judgment on ATI's
"waiver argument," it decided that the exemplars satisfied
each of the requirements for exclusion. Based upon the facts
of this case, we cannot say that the trial court's judgment
finding that the exemplars were not publicly released was
plainly wrong or without evidence to support it.
17
omitted)). Viewing the facts in the light most favorable to
UVA, the prevailing party below, we find that UVA produced
sufficient evidence to meet each of the higher education
research exemption’s seven requirements.
E. Fees for Exclusion Review under VFOIA
While statutes implementing freedom of information
procedures in some other states expressly address recovery of
costs associated with review of the requested materials for
production under various exceptions or exemptions, 9 Code § 2.2-
3704(F) simply provides that, "[a] public body may make
reasonable charges not to exceed its actual cost incurred in
accessing, duplicating, supplying, or searching for requested
records." ATI and UVA dispute whether a public body may
impose a charge for its study of the documents under the
9
For example, Illinois expressly precludes recovery of
review costs (5 Ill. Comp. Stat. 140/6(a) provides: "Each
public body may charge fees reasonably calculated to reimburse
its actual cost for reproducing and certifying public records
and for the use, by any person, of the equipment of the public
body to copy records. Such fees shall exclude the costs of any
search for and review of the record, and shall not exceed the
actual cost of reproduction and certification”), while
Michigan expressly authorizes imposition of charges for
examination and review, as well as redaction, of requested
materials in light of statutory exemptions to be applied
(Mich. Comp. Laws § 15.234(1) provides:"[a] public body may
charge a fee for a public record search, the necessary copying
of a public record for inspection, or for providing a copy of
a public record." The fee must be "limited to actual mailing
costs, and to the actual incremental cost of duplication or
publication including labor, the cost of search, examination,
review, and the deletion and separation of exempt from
nonexempt information." Id.).
18
exclusion provisions of the VFOIA. In its July 7, 2011 order,
the trial court held:
A public body such as the University may
seek reimbursement for review of public
records sought pursuant to the Act to
assure that those records are responsive,
are not exempt from disclosure, and may be
disclosed without violating other
provisions of law. Such review is
inherent in the process of "assessing,
duplicating, supplying, or searching for
the requested records" explicitly
authorized by [Code] § 2.2-3704(F).
Respondent may seek reimbursement for this
exclusion review from Petitioners.
We agree with the trial court.
Principles of statutory construction require us to
construe the terms "accessing," "duplicating," "supplying" and
"searching" according to their ordinary meaning. See Nolte v.
MT Tech. Enters., LLC, 284 Va. 80, 89-90, 726 S.E.2d 339, 344
(2012). "Search" means: (1) "to look into or over carefully
or thoroughly in an effort to find something"; or (2) "to
uncover, find, or come to know by inquiry or scrutiny."
Webster's Third New International Dictionary 2048 (1993). In
the context of Code § 2.2-3704(F), "searching" includes
"inquiring or scrutinizing" whether a disputed document can be
released under federal and state law. 10 Therefore, the
10
For example, Virginia law prohibits a public body from
disclosing social security, credit card, debit card, bank
account and driver's license numbers as part of a VFOIA
request. See Code § 2.2-3808.1. Accordingly, the public body
19
ordinary meaning of "searching" in this statutory provision
permits a public body to charge a reasonable fee for exclusion
review. 11
III. Conclusion
We will affirm the judgment of the trial court.
Affirmed.
JUSTICE MIMS, concurring.
I join the majority opinion because I believe it has
reached the right result in this case. However, mindful of
our canons of construction, this concurrence is warranted.
Under one canon, we presume that the General Assembly is
aware of how we construe the terms it used in a statute and
must search the documents and exclude any information that
would be unlawful to disclose. Public bodies may charge for
this "search" or "review" process.
11
Recovery of review costs is also permitted under the
federal Freedom of Information Act See, e.g., Judicial Watch,
Inc. v. Dep't of Justice, 365 F.3d 1108, 1126 (D.C. Cir.
2004)(“Under FOIA, the Department is permitted to charge a
reasonable fee for searching, copying, and reviewing its
files.”); OSHA Data/CIH, Inc. v. Dep't of Labor, 220 F.3d 153,
160-68 (3rd Cir. 2000) (review costs, including costs relating
to the task of assessing possible competitive harm from
disclosure of the requested records, were compensable).
20
that it acquiesces in such constructions unless it
subsequently enacts a corrective amendment. E.g., Manchester
Oaks Homeowners Ass'n v. Batt, 284 Va. 409, 428, 732 S.E.2d
690, 702 (2012 (citing Barson v. Commonwealth, 284 Va. 67, 74,
726 S.E.2d 292, 296 (2012)). Under another, we presume that
when the General Assembly used a word in multiple places
within the same statutory scheme, it intended the word to have
the same meaning in each unless another meaning is expressly
provided. E.g., Eberhardt v. Fairfax County Emps. Ret. Sys.
Board of Trs., 283 Va. 190, 195, 721 S.E.2d 524, 526 (2012)
(citing Board of Supervisors v. Marshall, 215 Va. 756, 761-62,
214 S.E.2d 146, 150 (1975)).
While I believe the Court has accurately assessed the
public policy underlying the legislature’s enactment of Code §
2.2-3705.4(4), the exclusion at issue in this case, I observe
that the word “proprietary” also occurs in Code §§ 2.2-
3705.1(6), 2.2-3705.4(5), 2.2-3705.5(4) and (12), 2.2-3705.6
(1), (3), (7), (8), (9), (10), (12), (13), (14), (17), (18),
(19), (21), (25), and (27). I am not confident that the
General Assembly intended the definition of “proprietary” we
endorse today to apply equally to them all. However, only
Code § 2.2-3705.1(6) provides an express definition clarifying
legislative intent. *
The majority opinion rightly deals only with the case,
and code section, presently before the Court. However, I
write separately to spotlight that the judicial canons of
statutory construction will require us to extrapolate from
this decision when we are called upon to decide future cases
dealing with other code sections. I fear that such
extrapolations may cause us to diverge from the General
Assembly’s true intent in such cases, if it does not provide
clarification soon. “Proprietary” is susceptible to too many
meanings to be used so broadly and so often in the Virginia
Freedom of Information Act with no specific definition.
*
In many of these provisions, “proprietary” appears
alongside the terms “business-related” or “trade secrets.”
While these might otherwise be read to shed some light on the
sense of “proprietary” the General Assembly intended in each
instance, one canon of construction requires us to give effect
to each term rather than consider them merely synonymous
repetition. See Newberry Station Homeowners Ass'n v. Board of
Supervisors, 285 Va. 604, 615 n.5, 740 S.E.2d 548, 554 n.5
(2013) (“[I]t is a 'settled principle of statutory
construction that every part of a statute is presumed to have
some effect and no part will be considered meaningless unless
absolutely necessary.'") (quoting Brown v. Commonwealth, 284
Va. 538, 544, 733 S.E.2d 638, 641 (2012)); see also Simon v.
Forer, 265 Va. 483, 490, 578 S.E.2d 792, 796 (2003) (“[W]e
assume that the legislature chose, with care, the words it
used when it enacted the relevant statute, and we are bound by
those words. When the General Assembly uses two different
terms in the same act, it is presumed to mean two different
things.”) (internal citations and quotation marks omitted).
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