The University of Illinois system has undertaken a sweeping effort to strengthen its compliance with that state’s open-records law in response to accusations that officials there tried to skirt the statute by conducting business on private email accounts.
If, however, the Illinois system manages to find a way to keep its leaders and employees from concealing their online discussions of public matters, it will stand out as alone in American public higher education. A close look at how state open-records laws are enforced at public colleges suggests that the absence of more controversies like the one at Illinois may simply reflect that hidden emails are staying hidden.
Although nearly all states’ laws cover electronic communications that take place on private email accounts or are stored off government computers, they lack teeth: People looking for evidence that public colleges’ leaders or faculty members have violated the public trust can be stuck having to trust them to cough up records incriminating themselves.
Here are answers to key questions raised by the University of Illinois controversy.
Q. What do states’ open-records laws say about emails exchanged on personal accounts?
A. Some states, such as Colorado, New Hampshire, and Tennessee, have amended their open-records laws with provisions extending their reach to electronic communications. Others adopted laws with broad enough definitions of speech for state courts to see electronic communications as falling within those laws’ scope, according to a database maintained by the Reporters Committee for Freedom of the Press. The upshot is that states generally treat electronic communications, including both emails and text messages, as similar to ink-and-paper documents when it comes to open-records requests.
Whether a document is covered by a state open-records law generally hinges on its content rather than its location. For the most part, emails on government matters sent from private accounts are considered subject to records requests, while personal messages sent from work computers aren’t.
Many states’ laws have big holes when it comes spelling out what responsibility public colleges and other agencies have for retaining emails or text messages stored on government computers in private companies’ data repositories. They do not, for example, define how long, and where, text messages on public matters must be stored.
Q. Given how long email has been around, why is the application of open-records laws to electronic communications becoming an issue now?
A. The controversy actually has been brewing for a long time. Jan Greenwood, a partner at Asher-Greenwood, an executive-search firm for colleges, recalls that when she got into such work 23 years ago, members of public colleges’ presidential search committees might not have thought twice about using email to share candid thoughts about a candidate. As of about a decade ago, however, they almost completely stopped using email to communicate such thoughts, because “you don’t want to inadvertently do harm” by having such statements go public, Ms. Greenwood says. The realization that such messages are covered by open-records laws caused them to be more cautious.
But since then, the growing use of text messaging via cellphones and other devices has again lulled some public employees into communicating with less caution.
Robert M. O’Neil, a senior fellow at the Association of Governing Boards of Universities and Colleges and a former director of the Thomas Jefferson Center for the Protection of Free Expression, sees much of the attention now being focused on government officials’ use of private email accounts and servers as “Hillary Clinton-generated.” Since March — months before the University of Illinois email scandal — controversy has swirled around the Democratic presidential candidate’s use of a private email account and a privately maintained server to conduct public business as secretary of state.
Q. What made university officials’ use of private emails such a problem at Illinois?
A. For more than a year, top university officials there have been dogged by controversies, including those involving the scholars Steven G. Salaita and James W. Kilgore. Lawyers, activists, and news outlets such as The Chronicle filed open-records requests intent on finding out what drove the actions of officials such as Phyllis M. Wise, the chancellor of the Urbana-Champaign campus during that time.
The university system said this month that an internal inquiry had determined that Urbana-Champaign administrators had communicated over personal email accounts, and had withheld some messages covered by open-records requests, to keep some of their discussions confidential.
Chancellor Wise last week issued a statement calling “simply false” any suggestions that she and other campus employees had used personal email accounts “with illegal intentions or personal motivations.”
The university announced plans to strengthen compliance with open-records-laws through new employee-training efforts. On Friday, after a brief fight over the terms of her departure,Ms. Wise agreed to resign.
Q. Why not just require public-college officials and employees to use government accounts and servers to conduct all of their business?
A. That horse probably left the barn with the emergence of personal computers. Newer devices have only made it likelier that public employees will want to send messages on private accounts. “We are going to have to think about how all of these technologies are going to fit into the public-records framework that has existed for many decades,” says Adam A. Marshall, a legal fellow for the Reporters Committee for Freedom of the Press.
Another complicating factor: Private computer use often is encouraged by separate state laws intended to keep public employees from using public resources for personal reasons. Lee Tyner, general counsel for the University of Mississippi and chairman of the board of the National Association of College and University Attorneys, says his state’s prohibition against making personal calls on state phones leaves him using his personal phone to conduct state business.
Q. What keeps public-college officials and employees honest if they don’t want to hand over records stored on their private accounts or home computers?
A. Not much. Mr. Tyner says it can be difficult for a public university even to determine which office computers or university email accounts contain information covered by an open-records request. “If people are using personal email addresses, it gets even more complicated to try to respond meaningfully” to records requests, he says. If university employees were under no obligation to retain a record kept in a private email account, the odds of retrieving it get even longer.
Nancy Tribbensee, general counsel for the Arizona Board of Regents, says people in her office “rely on the integrity of our public officers and employees” in trying to comply with records requests.
The legal penalty for failing to comply with such a request typically amounts to a nominal civil fine or a requirement to pay the requester’s legal fees. Frank LoMonte, executive director of the Student Press Law Center, which provides legal assistance to college journalists, says it can be impossible to know what records a public-college employee is withholding. “You have to either have a very cooperative agency, that voluntarily searches people’s accounts, or you have to get lucky and stumble onto something,” he says.
Peter Schmidt writes about affirmative action, academic labor, and issues related to academic freedom. Contact him at peter.schmidt@chronicle.com.
