Open Records Requests

UPDATE: The madness has percolated over to Michigan, where conservatives are demanding emails of labor studies faculty.....about the situation in Wisconsin. This is so clearly against the intent of open records legislation that my post is almost superfluous.

Original post:

A fishing expedition in a Wisconsin professor’s email has been making waves. (I always wanted to say something like this.) The story: William Cronon, the esteemed author of Changes in the Land and Nature’s Metropolis, wrote a blog post tracing Republican initiatives in Wisconsin to a secretive but well-funded national organization for state legislatures. Republicans responded with an open records request, demanding all of Cronon’s emails containing references to their party and to a raft of individual Republican politicians. Some, like Paul Krugman, consider this a threat to academic freedom. The University of Wisconsin promises to balance this concern against the law’s demand for disclosure. For a journalistic treatment, see this; for Cronon’s own account, see this
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For me, it is déjà vu all over again. My institution has been the repeated target of such broad records requests, asking for any email by any employee—faculty, staff or administrator—relating to one or another controversial issue. Our public records officer would then dutifully instruct all of us to go through our past emails and forward any that fit the description. What they have not done, fortunately, is to sift through the email record themselves (is that “sifting and winnowing”?) by virtue of their access to the archives, reducing the level of intrusion.

I am not a lawyer. I cannot offer a legal analysis of the language in my state’s (Washington’s) open records law, much less that of Wisconsin or elsewhere. Nevertheless, a basic principle seems perfectly clear to me.

The purpose of all such laws is to make the decision-making and performance of public institutions transparent to the citizenry. We have a right to know how and on what basis decisions are made by those purporting to act on our behalf, and we need to know how well public officials are performing the functions for which they are responsible. That’s democracy.

We don’t need to know their personal opinions on topics over which they have no official influence. I can see no legitimacy to a request for emails of the Commissioner of the Department of Natural Resources on the topic of Lady Gaga, for instance. In this respect, the Commish is simply a private individual and entitled to a general privacy protection. (If he or she is so consumed by Ms. Gaga that essential work goes unperformed, that is a public concern—but it should center on the work, not the details of the distraction.) Indeed, if an official is in charge of water pollution, his or her personal views on, say, wolf reintroduction should also be beyond the scope of an open records request. Only communications bearing on the decision-making or implementing aspects of the individual’s job should be fair game.

So what about a professor? If the professor is on a committee that makes policy, it is vital that communications pertaining to this work be accessible to the public. (There are obvious exceptions for personnel and student privacy matters.) Communications that pertain to the performance of a professor’s teaching duties, or the institutional aspects of her research projects, are fair game. By “institutional aspects”, I mean all those having to do with adherence to institutional policies regarding funding, resource use, human subjects review, public disclosure, etc. The intellectual content of the research should be off-limits.

To be clear, I am not calling for an exception for academic freedom. I regard Cronon’s views of Republican tactics in Wisconsin to be as deserving of protection on privacy grounds as his views regarding Madison’s best car-repair shops or his favorite historians of the Progressive movement. And the people who empty his wastebaskets are entitled to the same privacy protection.

Again, as a non-lawyer, I suggest that the clear intent of open record laws be taken into consideration. Their purpose was not to lay bare as much of the private and mental life of public employees as possible, but to give citizens the opportunity to see for themselves how public institutions are functioning.