This week’s topic: Should faculty emails be exempt from the Freedom of Information Act?

Point: Faculty emails should not be exempt from FOIA

David W. Schnare

Schnare is director of The American Tradition Institute’s Environmental Law Center.

In a little-noticed paragraph after the famous “military-industrial complex” warning, President Eisenhower’s Farewell Address cautioned: “The prospect of domination of the nation’s scholars by Federal employment, project allocations and the power of money is ever present — and is gravely to be regarded. Yet, in holding scientific research and discovery in respect, as we should, we must also be alert to the equal and opposite danger that public policy could itself become the captive of a scientific-technological elite.” Based on faculty emails, we see Ike’s fear proving to be well-founded, especially with respect to global warming.

Because university faculties have always been closed, exclusive and highly self-protective tribal societies, few tools exist to peek behind the ivy-covered walls. For public universities, state Freedom of Information laws offer citizens the means to see how these public servants spend the people’s money.

The tension is between the right of citizens to monitor the work of their employees and the need for faculty to be able to conduct research without undue interference before it is published. The American Association of University Professors has recently suggested that faculty simply be exempted from FOIA so that their discussion of research not be “chilled” by those who paid for it.

If completely exempted, the Lysenkoism of a small academic clique revealed by “Climategate” emails would never have been exposed. Those emails revealed this clique barred publication of research challenging their own conclusions. Nor could the public have found out that a North Carolina faculty member used grant funds for projects other than intended and hid this from the grantor. And, as President Eisenhower feared, formation of critical global warming policy has been kept secret at a time when public inspection of the foundation of those policies was most needed.

A recent Virginia FOIA request found that at one university, of 15 professors conducting research, not one kept a research log. In one case, a professor could not duplicate his findings for lack of such research discipline. Without FOIA, this execrable faculty misbehavior would never have been uncovered.

Nevertheless, faculty need the freedom to be curious without undue interference. Thus, emails about research should not be subject to FOIA prior to publication of the research, but should be available upon publication. Where research has not produced a publication, records should remain protected as long as the research is under way, but no longer. Current law respects this. All other emails on official accounts are rightly subject to FOIA. Faculty thereby have the incentive they need to be ethical and otherwise professional, while both the public and other scholars have the opportunities to learn and extend knowledge. Faculty should embrace this.

Counterpoint: Balancing academic freedom and the public’s right to know

Kathi Westcott

Westcott is senior counsel to the American Association of University Professors.

The American Association of University Professors, founded in 1915, has a long history of supporting public access to information. Indeed, as teachers and researchers, the calling of the association’s members is to impart knowledge to others. Our foundational statement on academic freedom holds “[t]he common good depends upon the free search for truth and its free exposition.” Academic freedom — or freedom in research, teaching and participation in institutional decision-making — is essential to these purposes. It may seem counterintuitive to suppose that Freedom of Information requests can be at odds with academic freedom. However, we have found that this can be the case.

The United States Supreme Court has also long recognized the importance of academic freedom in a democratic society. In the 1950s, when faculty members who refused to sign loyalty oaths or disclose political affiliations were being summarily fired, or worse, the Supreme Court articulated a clear link between academic freedom and a free society:

“Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.” Sweezy v. New Hampshire, 354 U.S. 234 (1957)

The link between academic freedom and our democracy is as essential today as it was in the 1950s era loyalty hearings and in the 1990s when tobacco companies used open records requests attempting to influence scholarly research about cigarette advertising.

Academic discussions between colleagues near and far are meant to test theories and assist in proving and disproving hypotheses. The ability of scholars and teachers to freely exchange communications relevant to their scholarship and teaching is central to a valid peer review system.

The goal is to produce the best possible results — and achieving this goal depends on an open, unfettered exchange of ideas. Efforts to use FOI and public records requests to selectively divert portions of academic communications (for example, about climate change theories) for the purpose of publicizing incomplete information, out of context, disrupts the academic process and has a chilling effect on future academic work. This hurts all of us.

Distinctions are logically made between requests deserving production of documents (for example, requests for information about a public institution’s finances) and those requests where information is exempt from disclosure. Virginia’s statute provides for the exemption of records related to academic research.

The public good is served by preserving academic freedom through the use of statutory exemptions or a balancing approach which recognizes that requests for faculty emails related to scholarship and research requires a heightened justification because of their intrusive and potentially chilling nature.

 Schnare’s rebuttal:

Four hundred and fifty words permits a writer to identify a problem but not offer much of a solution. Thus, this “rebuttal” is not so much a rebuttal as an offering to the academy on how to understand and preserve academic freedom while preserving the citizens’ rights to government documents.

The starting point has to be an understanding as to who “owns” the public records of a public university, which includes all emails stored on university computers. These do not belong to the professors as these emails are merely “copies,” no different from file copies of correspondence routinely found in government files. Nor, interestingly, do these emails belong to the University. They belong to the Commonwealth – in other words, to the citizens of the state. As found in Freedom of Information Acts (FOIAs), the university is the “custodian” of the emails, not the owner.

Under FOIA, the University has multiple duties. One is to conserve and provide the emails for use by the owners – the citizens. Another is to protect the citizen’s interests in the records by not making them public if, in so doing, it works against the public interest. Hence, under FOIAs, there are “exemptions” that allow the custodian to hold back emails under FOIA. What might they hold back, and for how long?

Public universities are competitors within the market-place of ideas, which includes the market-place for grant money. Emails that reflect the preparation of grant requests, the actual research and the preparation of final papers and reports should not be released until after decisions on the grants are made or the final papers and reports are published. To release them would give away the competitive advantage the university holds. Once research is completed and either published or rejected by the peer-reviewed literature, or abandoned, or once it has simply become stale and no longer of interest to the market-place of that particular kind of research, the emails no longer hold value that surmounts the public’s potential interest in them and then they should be released.

Why release these emails? There are many reasons, although FOIAs usually require no reason at all. After all, there are the citizens’ records and they have a statutory right to look at the records they paid for. However, there is an important academic reason to have such records available to all. They still contain information that is only valuable if released to the public.

Communications on research contain discussion on the dead-ends, the missteps, the false starts, the alternative ideas and similar detritus of research. This grist of the research process never appears in final reports and publications, but academics who work in the subject area want and need such information. It promotes efficiency in research. While the original researchers have learned their lessons, they have a duty to share those lessons with their academic community and release of such emails is the only means to do so. Indeed, without their release, the market-place of ideas is poorer and cannot benefit from the new investigator whose creativity may be sparked by the unused thought of the earlier generation.

There are many other academic opportunities resting within such emails, including analysis of peer tribalism, for example. It would be an intellectual crime to disallow the academy from having the opportunities that might arise from the ashes of old endeavors on the false assumption that a public university must, forever, hide the challenges faced by an academic as she works through a problem and produces knowledge. Knowledge is not free and to hide knowledge cannot be the intent of academic freedom.

Westcott’s rebuttal:

Unpublished scholarly communications should not be made available through public records requests because these communications go to the very heart of the academic discovery process. A process so vital to the development of new, unique and sometimes controversial scholarship and teaching that it is not only protected by Academic Freedom but also by Virginia’s own public records law. Virginia’s law exempts data and records related to scholarly work conducted at public colleges and universities “where such data, records or information has not been publicly released, published, copyrighted or patented.”

It appears as though ATI seeks to intrude into those communications that ultimately were never published at the conclusion of Professor Mann’s research. These types of “behind the scenes” communications allow faculty members to refine their work and ultimately publish that information which has been peer reviewed and found to be sound. Professor Mann’s climate research has been independently reviewed more than a half dozen times with every panel concluding that his work is and was sound. The distorted picture painted by ATI and other interested parties has not panned out. Yet despite all evidence to the contrary, ATI continues to pursue legitimately protected communications that are essential to the development of new research whose conclusions benefit all of society. It is hard to view these efforts as anything but an attempt to chill research with which ATI and others disagree.