Two interesting open records cases are unfolding in Wisconsin and Michigan.

Both raise important questions about access to public documents, the concept of academic freedom, vigorous public discourse and the motives of those seeking public records.

Wisconsin

William Cronon is a professor of history, geography and environmental studies at the University of Wisconsin–Madison. Photo: Hilary Fey Cronon

The Wisconsin Republican Party is requesting emails from history professor William Cronon who blogged about Wisconsin’s new law that prohibits collective bargaining for public employees in the Cheese State.

On March 22nd, Cronon also wrote an op-ed piece in the New York Times. Among other things, Cronon wrote:

“Republicans in Wisconsin are seeking to reverse civic traditions that for more than a century have been among the most celebrated achievements not just of their state, but of their own party as well.”

Wisconsin’s GOP responds

Cronon’s words struck some type of chord with the Wisconsin Republican Party. On March 17th,  Cronon received an open records request from the Republican Party under the state Freedom of Information Act (FOIA). The request asked for:

“Copies of all emails into and out of Prof. William Cronon’s state email account from January 1, 2011 to present which reference any of the following terms: Republican, Scott Walker, recall, collective bargaining, AFSCME, WEAC, rally, union, Alberta Darling, Randy Hopper, Dan Kapanke, Rob Cowles, Scott Fitzgerald, Sheila Harsdorf, Luther Olsen, Glenn Grothman, Mary Lazich, Jeff Fitzgerald, Marty Beil, or Mary Bell.”

Cronon said it is this fear of intellectual inquiry being stifled by the abuse of state power that has long led scholars and scientists to cherish the phrase “academic freedom.” Photo: Jeff Miller

Cronon has since blogged, calling the Wisconsin GOP records request an assault on his academic freedom. He added:

When should we be more cautious about applying such laws to universities?

Answer: When FOIA is used to harass individual faculty members for asking awkward questions, researching unpopular topics, making uncomfortable arguments, or pursuing lines of inquiry that powerful people would prefer to suppress.

If that happens, FOIA and the Open Records Law can too easily become tools for silencing legitimate intellectual inquiries and voices of dissent — whether these emanate from the left or the right or (as in my case) the center.

It is precisely this fear of intellectual inquiry being stifled by the abuse of state power that has long led scholars and scientists to cherish the phrase “academic freedom” as passionately as most Americans cherish such phrases as “free speech” and “the First Amendment.”

Mark Jefferson, executive director of the Republican Party of Wisconsin. Photo: Mike Devries

On March 25th, Mark Jefferson, executive director of the Republican Party of Wisconsin, declined to explain why the records request was made.  Jefferson said:

“Like anyone else who makes an open records request in Wisconsin, the Republican Party of Wisconsin does not have to give a reason for doing so.

I have never seen such a concerted effort to intimidate someone from lawfully seeking information about their government.”

University of Wisconsin-Madison Chancellor Biddy Martin said the university respects and complies with public records law but that compliance involves a balancing test.

In a statement, University of Wisconsin-Madison Chancellor Biddy Martin said the university respects and complies with public records law.  Martin added that compliance with public records requests involves a balancing test. Wrote Martin:

“There are many cases in which the university must balance the need, for instance, to protect proprietary research against the public’s right to know.

In this instance, we will need to consider whether disclosure would result in a chilling effect on the discourse between colleagues that is essential to our academic mission.

Academic freedom is one of the university’s greatest contributions to a democratic society. No other institution is charged specifically with protecting the pursuit of knowledge, wherever it may lead.

Individual faculty, staff and students inevitably consider and advocate positions that will be at odds with one another’s views and the views of people outside of the university. It is the university’s responsibility both to comply with state law and to protect our community’s right to explore freely and freely  express their points of view.”

Meanwhile, in Michigan

In Michigan, the New York Times reports the Mackinac Center for Public Policy, a conservative research group, has filed a public records request to the labor studies departments at three public universities in the state. The request also seeks e-mails involving the Wisconsin labor turmoil. Said the New York Times:

“The group, the Mackinac Center for Public Policy, declined to explain why it was making the Freedom of Information Act request for material from professors at the University of Michigan, Michigan State and Wayne State University. But several professors who received the records request, which was first reported by Talking Points Memo on Tuesday, said it appeared to be an attempt to intimidate or embarrass professors who are sympathetic to organized labor.”

The Chronicle of Higher Education reports that the Mackinac Center’s open-records request was sent by a research associate at the direction of Ken Braun, managing editor of one of the center’s newsletters.

Mr. Braun refused to discuss exactly why his center had sent the letter, saying it does not comment on its investigations in progress. But, he said, “there is a very specific type of discussion that I am looking for, and that is why it is targeted at these three unique departments at these three universities.”- The Chronicle of Higher Education

My view

As a journalist and scholar, I understand and accept that university email may be fair game for open records requests.  Open records laws exists to promote the free flow of information and to insure that public employees are accountable to the tax payers they serve.

As a reporter, I have used open records requests on dozens of occasions to gather information for stories designed to promote discussion and to inform the public.

If anything, FOIA laws should be used more often because they’re a great free speech tool.

Having said this, I would be concerned if the motive for an open records request was perverted to intimidate or embarrass someone from exercising their First Amendment right to free speech.

If that were to be the case, a tool meant to promote the free flow of information in our democratic society could be grossly abused to censor speech and divergent views.

I’m not simply referring to the chilling effect such activities may have on scholars should they say things political parties or others don’t like. I’m talking about the effect such abuses may have on every American.

What are your thoughts on this topic? I’d really like to know.

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