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. 
2

("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). 
3

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 
4

(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." 
5

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 § 
6

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 
7

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. 
8

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 
9

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 
10

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. 
11

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 
12

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. 
13

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. 
14

"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 
15

(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 ViceProvost 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 
16

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 
17

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. 
18

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.). 
19

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 
20

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). 
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 
22

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).