Open-Records Requests and Academic Freedom

As conveyed in recent news coverage, professors at 24 higher-education institutions in North Carolina have endorsed a letter to the state’s governor urging him to oppose an open-records request related to the emails, records, and other documents of Gene Nichol, a University of North Carolina law professor and director of the law school’s Center on Poverty, Work and Opportunity.

The group seeking the records, the Civitas Institute, claims that Nichol has engaged in partisan advocacy against Republicans in the state. The professor became a focus for individuals within the organization—which is styled on its web page as “North Carolina’s conservative voice”—after Nichol wrote an opinion piece highly critical of North Carolina’s governor. The concerned faculty members directed their letter to the governor because Civitas receives financial backing from a foundation closely associated with the family of the governor’s budget director.

The problem with the unfolding episode in North Carolina isn’t the desire to challenge Nichol’s views and assertions. The problem is using an open-records request as a strategy to suppress debate. A law intended to add transparency and openness to government operations has been used to harass and silence.

The misuse of an open-records law in North Carolina would be disconcerting in and of itself. But several such incidents in recent years (either through state laws or judicial processes) raise concerns over a potential upswing in this kind of strategy to stifle faculty speech.

The recent governor’s race in Virginia highlighted another example. The Republican nominee, Kenneth Cuccinelli, who currently serves as the state’s attorney general, initiated a wide-ranging open-records request focusing on Michael Mann, an international expert on climate science. Between 1999 and 2005, Mann was a faculty member at the University of Virginia. During that time, Mann received an internal grant from the university.

Cuccinelli, a well-known climate-change skeptic, tried to challenge Mann’s research on global warming, calling it a fraud. As part of Cuccinelli’s efforts to discredit the scientist, he used a civil subpoena, under the Virginia Fraud Against Taxpayers Act, seeking to make the University of Virginia turn over a wide range of documents related to Mann’s time as a faculty member. The university contested the investigation and eventually prevailed following a Virginia Supreme Court ruling in March 2012.

Cuccinelli was not the only climate skeptic harassing Mann. Simultaneously, the American Tradition Institute submitted a state open-records request. The records requested resembled those in Cuccinelli’s investigation demands. ATI is a think tank that has previously contested evidence of climate change. In September 2012, a state court eventually dismissed the case, applying an exemption to the state’s open-records law for “data, records or information of a proprietary nature produced or collected by or for faculty or staff of public institutions of higher education.” The group is now appealing the records denial to the Supreme Court of Virginia.

Mann and others who study climate change have encountered numerous open-records requests and subpoenas, spurring years of inquiries and litigation. These researchers have been vindicated by their peers and the courts, but not without a substantial toll on the scholars in terms of time, money, and mental energy.

Law clinics and research centers, and by implication the faculty members associated with them, have been subject to open-records requests as a means to hamper faculty work. For instance, politically conservative groups sought to use state open-records laws to gain access to the emails of labor-studies professors in Michigan. In Wisconsin, the state’s Republican party made an open-records request for emails from professors critical of Governor Scott Walker’s efforts to crack down on public employee unions.

Earlier, the tobacco industry tried to impede the work of researchers studying the harmful effects of tobacco products. Rather than using an open-records request, the Arizona Superintendent of Public Instruction attempted to use a subpoena to access data related to research showing an achievement gap between students enrolled in an English Language Learners program and other students. That data contained identifying information from participants who had been promised anonymity.

In a 2006 journal article, Michael K. McLendon and James C. Hearn described the use of open-records laws to hinder an institution’s work as “weaponization.” The examples outlined above show that individual faculty members too are subjected to such tactics. The idea of weaponization also applies to judicial processes—such as what took place in Virginia and Arizona.

Record requests intended to intimidate and harass, rather than to promote critical examination, should be disallowed. In working to craft sensible limits, the question becomes how to balance the public right to know and faculty members’ academic freedom. Fortunately, organizations such as the American Association of University Professors and the American Constitution Society for Law and Policy have offered several alternatives.

One option adopted by several states, including New Jersey, Ohio, and Utah, is to shield unfinished research. Another is to treat many types of faculty communication as unrelated to the types of governmental functions meant to be covered under state sunshine laws. In Georgia, for instance, records in higher education for medical, scientific, technical, scholarly, or artistic issues are explicitly excluded from the state’s open-records law. A third option would be for institutions receiving a request, and courts when necessary, to engage in a balancing test, one that weighs the interests in disclosing records against concerns with protecting unfettered scholarly inquiry and academic freedom. One of these options might answer fears of media groups in Virginia that exemptions the university claims against open-records access are so broad that they would effectively gut the freedom-of-information requests necessary for journalists to cover public institutions.

However achieved, at a minimum, state laws should shield the deliberative processes related to the exchange of ideas required to produce research and new knowledge. Faculty members at public institutions support openness in government and the democratizing function open-records laws can play. The goal should be to balance the public right to know with academic freedom, confidentiality, and scholarly integrity.

Subjecting scholarly ideas to public critique is legitimate. But using open-records laws and other legal mechanisms to thwart the formation and dissemination of those ideas is not.

Neal H. Hutchens is an associate professor at Pennsylvania State University. Jeffrey C. Sun is an associate professor at the University of North Dakota. Karen Miksch is an associate professor at the University of Minnesota.

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