Will Open Records Requests Stop Sifting and Winnowing?

Date: 04/01/2011 05:41 pm

Perhaps it was inevitable that academic freedom would get pulled into the increasingly heated political maelstrom in Wisconsin and Michigan. 

Faculty in both states have come under fire from conservative organizations concerned with Wisconsin's collective bargaining fight.  Groups in both states are using open-records requests in a heavy handed attempt to intimidate their political opponents on campus into silence. 

On Monday last week Dr. William Cronon, a professor of History at UW-Madison and president elect of the American Historical Association, contributed an Opinion-Editorial to the New York Times criticizing the Wisconsin Republican Party for breaking with the state’s tradition of open-government.  At the same time he launched a blog, titled Scholar Citizen (http://scholarcitizen.williamcronon.net), and used the inaugural post to raise questions about the party’s connection with national groups like the American Legislative Exchange Council.  The next day the Wisconsin Republican Party filed an open-records request for copies of Professor Cronon’s university e-mail meeting a long list of search terms, including republican legislators, union leaders and the words “rally’ and “union.”

In Michigan the Mackinac Center for Public Policy filed a similar request asking for copies of e-mails from professors at University of Michigan, Michigan State University and Wayne State University.

While open records laws certainly serve a purpose, this instance is a blatant attempt to use the law to attack a faculty member for expressing criticism and to intimidate and chill the speech of his colleagues.

Implications on Academic Freedom
These requests send a message to faculty at public institutions, that if they express controversial opinions or scholarship they risk putting all of their private correspondence into the public record. 

First this would discourage faculty from exercising their voice as citizens, a role they are both entitled to and which serves an important function in society.  Professor Cronon’s Op-Ed in the New York Times was a historical reflection on Wisconsin politics, a contribution he was uniquely positioned to make as a renowned scholar of American History.

Second, it could force faculty to self-censor their correspondence, which is often used for confidential matters regarding scholarship, professional associations and communication with students and colleagues.

Freedom of Information Requests and Public Faculty
There are also questions as to whether freedom of information requests such as these should actually apply to faculty members' campus email correspondence. 

The Wisconsin Public Records Law (Wisconsin Statutes section 19.31) states “it is declared to be the public policy of this state that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them.”  The statue defines records covered under the act as “any material… which has been created or is being kept by an authority in connection with official purpose or function of the agency,”  (Wisconsin Statutes section 19.32 – 2). 

It seems strange to equate the professional correspondence and research of a faculty member with the official records and documents of a public official, a grey area the Wisconsin courts noted in Schill v. Wisconsin Rapids School District.  In the case Schill v. Wisconsin Rapids School District (2010), the Supreme Court of Wisconsin ruled that personal emails sent by government employees on government computers don’t necessarily count as records unless they are connected to a “government function.”  Even if they are records the courts still have to balance the public interest of disclosure against any other public interest at stake, in this case threats to academic freedom.  While this case only applies in Wisconsin, Michigan’s public records law is very similar to Wisconsin’s and one could apply the same logic.

UW Madison's Response
Today, UW-Madison Chancellor Biddy Martin released a statement indicating that the school will release a limited number of Professor Cronon's emails—those that do not deal with students or implicate his academic freedom rights.  The Chancellor was also careful to reiterate her administration's support of faculty members' academic freedom rights stating,

“To our faculty, I say: Continue to ask difficult questions, explore unpopular lines of thought and exercise your academic freedom, regardless of your point of view. As always, we will take our cue from the bronze plaque on the walls of Bascom Hall. It calls for the "continual and fearless sifting and winnowing" of ideas. It is our tradition, our defining value, and the way to a better society.”

We have yet to hear a response from administrators in Michigan.

Even if the emails fall within the scope of either state's open records laws, we agree with the conclusion the Supreme Court of Wisconsin and Chancellor Martin reached.  The threats to academic freedom and the potential chilling effect on discourse far outweigh the public benefit of disclosure.

We hope that the three schools in Michigan come to the same conclusion before this attack spreads.