Wisconsin-Madison to Release Professor's E-Mails but Withhold Those Said to Be Private

April 01, 2011

[Updated at 4:55 p.m. with Republican response.]

The University of Wisconsin at Madison said on Friday that it would release to the state's Republican Party records a party official had sought from the e-mail account of a Madison professor who had criticized the governor and Republican-backed legislation to curtail the collective-bargaining rights of university and other public employees in the state.

Carolyn A. (Biddy) Martin, Madison's chancellor, said the university would not, however, release e-mails that it considers to be "the private e-mail exchanges among scholars that fall within the orbit of academic freedom and all that is entailed by it." Ms. Martin also said the university would exclude communications that "fall outside the realm of the faculty member's job responsibilities" and that the university said could be considered personal under Wisconsin Supreme Court case law. And the university will not release records involving students, whose communications are exempt from public disclosure under the federal Family Educational Rights and Privacy Act.

Ms. Martin had previously announced that the university would comply with the open-records request, which was made by Stephan Thompson, deputy executive director of the Wisconsin Republican Party. He had asked for all e-mails to or from the state e-mail account of William Cronon, a tenured professor of history, geography, and environmental studies at Madison, as of January 1 that contain certain keywords. Those include "Republican," "Scott Walker" (the name of Wisconsin's governor, a Republican), "recall," "collective bargaining," "rally," "union," the names of 10 Republican lawmakers, the acronyms of two state public-employee unions, and the names of those two unions' leaders.

A 'Balancing Test'

In a statement she released on Friday, Ms. Martin said the university had analyzed the public-records request from Mr. Thompson, as it does with all records requests, by applying "the kind of balancing test that the law allows, taking such things as the rights to privacy and free expression into account."

The chancellor made clear in her statement that the university intended to protect a "zone of privacy" for scholars and scientists so they can pursue knowledge without fear of reprisal.

"When faculty members use e-mail or any other medium to develop and share their thoughts with one another, they must be able to assume a right to privacy of those exchanges, barring violation of state law or university policy," Ms. Martin said. "Having every exchange of ideas subject to public exposure puts academic freedom in peril and threatens the processes by which knowledge is created.

"The consequence for our state," she continued, "will be the loss of the most talented and creative faculty who will choose to leave for universities where collegial exchange and the development of ideas can be undertaken without fear of premature exposure or reprisal for unpopular positions."

Ms. Martin said the university had reviewed Mr. Cronon's records for any legal or policy violations, including improper uses of state or university resources for partisan political activity, and found none.

Mark Jefferson, executive director of the Republican Party of Wisconsin, issued a brief statement on Friday that thanked the university for complying with the open-records request and thanked Ms. Martin for her statement.

"We share her belief that university faculty are not above the rules prohibiting the use of state resources for political purposes," he said. "Like other organizations from across the political spectrum, the Republican Party of Wisconsin has a longstanding history of making open-records requests, and we will continue to exercise our right to do so in the future."

No Blanket Protections for Academic Freedom

The university's response could set up a battle over what public records it must divulge.

The open-records request made by Mr. Thompson and a similar request directed at Michigan's three largest public universities by the free-market-oriented Mackinac Center for Public Policy are being denounced by the American Association of University Professors and others in academe as likely to chill academic freedom. But the phrase "academic freedom" appears nowhere in any state's list of allowable reasons for public colleges to turn down records requests, according to a database maintained by the Reporters Committee for Freedom of the Press.

Citing a need to protect "academic freedom" is, in itself, unlikely to help the universities avoid complying with requests for e-mails under state open-records laws, according to several national experts on academic freedom and records laws contacted this week by The Chronicle.

Although federal law prevents the disclosure of much information on individual students contained in such e-mails, and many states' records laws have exceptions for e-mails that are purely personal in nature or deal with unpublished research, closed meetings, or personnel decisions, there are no blanket exceptions intended to protect faculty members from efforts to obtain the sorts of e-mails covered under the Wisconsin and Michigan open-records requests.