The American Constitution Society for Law and Policy, a progressive legal think tank, released a report Sept. 8 regarding the contemporary challenges that public universities face in complying with state freedom of information acts. One of the prominent examples it cited was the University's response to a Virginia Freedom of Information Act request that the libertarian American Tradition Institute filed in January seeking access to documents pertaining to climate change research done by former Environmental Sciences Prof. Michael Mann.
The University initially delayed addressing the request because of concerns related to academic freedom and the federal Family Educational Rights and Privacy Act, but it since has agreed to produce the material in question. The University's acquiescence to ATI's demands has, in turn, elicited complaints from groups such as the Union of Concerned Scientists that fear it sets a precedent that erodes public university professors' ability to conduct independent research.
The union has legitimate concerns, and it is necessary that steps be taken to extend the protections afforded public university professors. Thus, the suggestions for FOIA reform included in the society's report merit consideration from university administrators, faculty members and state politicians. These three groups must collaborate on revisions to their states' FOIA laws to properly balance this need to protect academic freedom with the equally important responsibility to maintain transparent governance.
There are a number of conditions that have brought about the need for reforms to state FOIA laws. Most immediately, the quantity and lifespan of information is much greater in the era of the Internet. Whereas in the past it would have been impossible for groups such as ATI to request all "correspondence" between the subject of a FOIA inquiry and dozens of his professorial acquaintances, email archives stored on university servers now make that information readily available in many cases. These records can live on well past a professor's time at a particular university, which threatens the confidential exchange of ideas and data pertaining to research projects if outside groups gain access to them through FOIA requests.
Moreover, the polarized political environment has led to an unprecedented number of such requests being filed by various partisan groups. In Wisconsin, for example, the state Republican Party requested the production of all emails sent by History Prof. William Cronon that included certain terms related to the political controversy surrounding a statewide recall election. A similar situation arose in Michigan when the libertarian Mackinac Center petitioned for the release of certain state university professors' emails "criticizing the collective bargaining situation in Wisconsin." In these cases, as well as ATI's filing against the University, the requests have generated more controversy than genuinely revelatory material pertaining to their subjects, suggesting that state FOIA laws are not being used as intended.
The society's report offers several proposals that could be good starting points for reform. In particular, exempting scholarly work from FOIA laws would protect the sphere of academic freedom that is threatened by extraneous requests. States such as New Jersey, Ohio and Utah already do this to varying degrees, and the result has not been a significant decline in public transparency. Rather, it has enabled professors to carry on controversial or potentially profitable research that they might feel unable to perform at a public university in a state that does not afford strict confidentiality to unpublished academic material.
This recommendation is preferable to the society's alternative proposal that university faculty be granted full autonomy from FOIA requests. This would not enhance academic freedom beyond what a scholarly work exemption could provide, and it could jeopardize public access to information such as faculty salaries.
Specifying what types of academic work would be exempt from FOIA laws is a process that necessitates input from university administrators, faculty and elected officials. The creation of specific guidelines for handling FOIA laws is essential, however, if state university systems hope to continue attracting talented and creative faculty who, at the present moment, may feel inclined to look toward private institutions for the academic independence they desire. Although accountability to taxpayers also must factor into this decision-making process, policymakers should remember that a public university system with quality faculty also is in their constituents' interest.
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