As highlighted here a few weeks ago, the agreement between UVa lawyers and Chris Horner and David Schnare of ATI has raised more than a few eyebrows. The point at issue is how to deal with material that UVa thinks is exempt from release under Virginia FOIA, but that ATI thinks is not.
In federal FOIA, standard practice is to produce a Vaughn Index of all the material, and to have a judge, in camera, decide on whether any challenge to an exemption is valid or not. Under the UVa Consent decree, UVa has agreed to send ATI lawyers all material (under seal) for their review. Some obvious issues with this approach were discussed in the last post.
In a new letter to UVa, the Union of Concerned Scientists has questioned the sense of this and provided Virginia case law in support of a more federal-FOIA-like approach. Specifically, they cite Bland v Virginia State University (2006) where the Virginia Court of Appeal "encouraged the filing of allegedly confidential records for in camera inspection by the trial court and, if necessary, by an appellate court" in VFOIA cases where exemptions were an issue. As with federal FOIA, this seems to make much more sense.
In response, ATI put out a press release expressing surprise that anyone would question their professionalism.
What's good for the goose...
Issues: Appeals against claimed exemptions, Vaughn Index