New filings in the ATI/UVa FOIA case

The ATI/UVa case grinds on. The latest filings are (finally) substantive on the main point at issue - what is and what is not exempt under Virginia's FOIA, though you wouldn't know that from reading the ATI press release. Nor would you gather that the main reason for why this is all taking so long is because of ATI's cowboy lawyering and the filing of irrelevant (and dismissed) motions that sought to do various end runs around the main issue (such as demanding the documents in question under discovery, then seeking to withdraw the motion, then filing another discovery request etc.). The litany of misrepresentation and time-wasting tactics is outlined clearly in the UVa response (part I, part II) (pages 2-7). More interesting are the actual arguments in UVa's response regarding exemptions to the FOIA release, of which there are 123 in the Virginia statute. It turns out that 18 states allow relatively broad exemptions similar to the Va law, which states that the following need not be released:

Data, records or information of a proprietary nature produced or collected by or for faculty or staff of public institutions of higher education,... in the conduct of or as a result of study or research on ... scientific .. or scholarly issues,... where such data, records or information has not been publicly released, published, copyrighted or patented.

The other states with similar clauses include Colorado, Delaware, Georgia, Illinois, Indiana, Kansas, Kentucky, Maryland, Michigan, Nebraska, New Jersey, North Dakota, Ohio, Oklahoma, South Carolina, Utah and Vermont. (Notably Texas is not included). However, despite the ubiquity of this research exemption in legislation, there is very little case law to use as precedent. As we have discussed before, US federal FOIA has copious precedent to guide interpretations of exemptions, but the application of federal precedent to state cases is problematic. The UVa argument looks at case law in Ohio and Indiana, the drafting history of the Va exemption to support the argument that the 'exemplar' emails are exempt. Note that the specifics of the case are being decided on the merits of 14 example emails that were declared exempt initially by UVa, but that exist in the 'quasi-public domain' because of the UEA email hack. (This agreement was the negotiated position after the initial procedural order was vacated). Oral arguments are due in September.

ATI/Horner targetting Texas scientists with media contacts

Chris Horner (wearing his ATI hat this week) has been busy sending of Requests for Public Records (under the Texan version of FOI legislation) to at least two Texas scientists (Andrew Dessler at Texas A&M, and Katherine Hayhoe at Texas Tech U.). His conclusions from the responses he got back appear to be that journalists and scientists talk to each other, and that when scientists get caught up in political stories that really have nothing to do with them personally, they sometimes ask for, and get, advice on how to deal with the fallout.

It's a little hard to see how this is any kind of story, but it interesting that the requests themselves have no pretense of being related to science, or data, or anything of actual substance. The first request to Hayhoe was for:

All emails to or from a TTU account used by Professor Katharine Hayhoe (including as “cc”) and either or both of the following (also including as “cc”): Newt Gingrich, and/or Terry Maple And All emails sent or received by Professor Hayhoe (including as “cc”) citing or referring to one or more of the following: Newt Gingrich (or “Newt” or “Gingrich”), Terry Maple (or “Terry”, or “Maple”), American Solutions (including in the email address/domain), and/or “Environmental Entrepreneurs”

from 2007 to 2012. Maple was Gingrich's co-editor on the forthcoming "Environmental Entrepreneurs" book.

Dessler was initially targeted because of the NYT piece on Richard Lindzen (Justin Gillis was the journalist, Dessler was quoted, and the request was made the day the piece appeared).

All emails to or from an A&M account used by Professor Andrew Dessler of the A&M Department of Atmospheric Sciences during the period covered by this Request (including as “cc”) which cite or refer to one or more of the following in the Subject line, e-mail body or in the To, From or cc: fields: Richard Lindzen (or “Lindzen”) Michael Mann (or “Mann”), Hockey Stick, Climategate, “denier”, and/or “tobacco”. Applicable dates for both categories of records requested cover two and one half years, from November 1, 2009 through May 1, 2012, inclusive.

This is the request that 'informs' most of Horner's recent blog post. More recently (to both Dessler and Hayhoe) (dated Jul 5, 2012), Horner requested:

All emails, dated from November 1, 2009 through July 5, 2012, inclusive, to or from a TTU account used by Professor [Katharine Hayhoe or Andrew Dessler] during the period covered by this Request (including as “cc” or “bcc”) which cite or refer to one or more of the following in the Subject line, e-mail body or in the To, From, cc: or bcc: fields: Union of Concerned Scientists (or “UCS”, “ucs” as a freestanding word/term) ucsusa.org, Richard Ades, Frontline, Catherine Upin (email, xxxxxxx@gmail.com), Justin Gillis, Seth Borenstein, and/or Suzanne Goldenberg.

The latter four people are all journalists who cover climate science issues.

The conclusion one draws from this is that ATI is really only interested in scientists that speak in public on the issue, and relishes wasting their time (and intimidating them) should they have the temerity to speak to journalists, publishers or public relations people. Even their stated reasons for making these requests (which is an odd thing to include because that is non-material to the response) are quite blatant in implying that such contacts are somehow improper:

ATI seeks these records to determine certain uses of taxpayer-funded resources by Professor [xxxx] including to what extent (if any) they are used in the performance or pursuit of certain “global warming” related activism, combining political or policy advocacy with dedicated publicly funded resources.

As if working on climate issues meant that you are not permitted to be active, or have opinion on policies. There is an ever-present danger of these kinds of requests creating a 'chilling effect' on public speech by scientists - but neither Dessler or Hayhoe seem minded to be too bothered by this, regardless of what scandalous insinuations ATI and Horner keep inventing.

Nature on the ATI/UVa case

Related to the ATI/UVa/Mann case, the 10 Nov 2011 edition of Nature has the following editorial:

Academic freedom

Scottish law exempts academic work from the freedom-of-information laws, but the rest of the United Kingdom does not. Ireland also exempts, and although the United States is commonly thought to, it turns out that, as so often in that country, it is left to the courts to decide. So, just what should researchers make of freedom-of-information laws?

American climatologist Michael Mann, now at Pennsylvania State University in University Park, probably knows the score better than most. And in the latest twist in a long-running saga over who should be able to read Mann's e-mails, a Prince William County Circuit Court judge in Manassas, Virginia, last week tore up an agreement that would have given the e-mails, with conditions, to attorneys for the American Tradition Institute (ATI), a conservative think tank. Judge Gaylord Finch also granted Mann's request to join the University of Virginia (his former employer and holder of the e-mails) in a lawsuit to block their release.

As both sides argue about whether the messages should ultimately be made public, the two legal decisions come as welcome news to those (including this journal) who believe that access to personal correspondence is a freedom too far. But the case highlights, yet again, how woefully unprepared the academic community is to meet this kind of challenge. This must change.

Certainly, the University of Virginia caved in too easily when it signed the agreement that granted the ATI access to the e-mails last spring. Given the tone of public statements that have come out of the ATI, the university should never have agreed to hand over confidential material of any sort.

But the university and its attorneys deserve credit for rectifying the situation. And despite appearances, to fight such requests is not against the letter, or indeed the spirit, of perfectly proper regulations designed to improve the accountability of public bodies. In fact, Virginia's freedom-of-information law provides the university with a solid basis to deny access to this kind of blanket request for e-mail records: academic work is exempt. This is as it should be, and the university should fight to protect that exemption now and in the future.

Yes, the public has a right to know, and yes, greater scrutiny of public spending is a good thing. But research practice is typically protected for good reasons too. To protect academic freedom is a foundation for intellectual property and copyright laws, while in court, both Mann and the university warned of the chilling effect of such demands on communication between scientists. Certainly, many researchers are more wary of e-mail today, and given Mann's experiences, who can blame them?

His case is high profile, but scientists and academics watching it (as well as the related attempts by Virginia's attorney-general Ken Cuccinelli to force the release of the same e-mails) should be cautious about drawing broad conclusions from how it may pan out. Even within the United States, the eventual ruling won't serve as much of a precedent outside Virginia. Federal agencies in the United States are subject to the federal statute, but state universities and research institutions must all play by the laws enacted in their own states.

Across those states it seems that this kind of academic exemption is common, but not universal, and its application would vary according to precedents set locally. In other words, it will be up to individual universities to work out how to address these kinds of cases as they emerge in future.

Mann's decision to join the lawsuit was spurred by the initial decision of the university to grant ATI access to his e-mails, a move with which he disagreed. He suggests that universities may be limited in what they can do to fend off these attacks, or that their interests may not always align precisely with those of individual researchers.

Mann is also getting help from a new fund especially designed to aid climate scientists hit by legal challenges, and organizations including the American Geophysical Union, the American Association of University Professors and the Union of Concerned Scientists have weighed in as well. All of this is good and useful, but it is no substitute for a solid institutional defence. Individual universities and research institutions everywhere should review their own policies and make sure they know the applicable laws as well as do those who would use them for mischief, or worse.

Academic interest in impacts and limits of FOI legislation

As FOI requests have had an increasing public profile, and have been used in clear political contexts, it is unsurprising that the study of the effects of FOI on academic pursuits has become a subject of academic research itself.

Two recent efforts, a legal study by the American Constitution Society of US State and Federal FOI on how (and whether) academic freedom is protected against politically charged requests and a study being led by UCL Consitution Unit in the Dept. of Political Science on the impact of UK FOI on the university sector, are worth reading.

Both studies reference cases that have been highlighted here (along with a few additional ones) but the overall thrust is similar: how should one balance the interest in the public right-to-know against the interest in open academic inquiry and the efficient functioning of a public higher education system. (Any claim that there is no conflict is undermined by many of the examples given here and in the reports themselves).

The ACS report suggests that protection of academic freedom be given explicit protection in the law (as is the case in Canada, Scotland and a few other jurisdictions), as opposed to the current implicit protection that only partially (and selectively) works. The UCL study is more observational than advisory, but the same topic is clearly part of their remit.

The UCL study also encompasses the practical impact of the UK FOI law on academic and university practice, which, since the act has been greeted with mixed responses, is possibly more contentious than issues of academic freedom.

FOI legislation has important implications for academic research and communication is conducted, and the balance between positive effects (on data transparency etc.) vs. negative effects (chilling effects on academic discourse and study, disincentives to public speech, invasion of privacy) is determined by quite subtle details in language, case law and implementation. These issues need to be continuously looked at to determine whether the legislation is striking the right balance.

ATI & UVa: An intervention

As discussed here and here, a key oddity in the ATI vs. UVa VFOIA case is that UVa voluntarily consented to have ATI review all material in the scope of the request in order to challenge any redactions or exemptions that UVa deemed necessary.

Now, Michael Mann has filed a motion directly with the Virginia court to have this state of affairs reviewed citing privacy concerns and the clear lack of ability to safeguard legitimate interests should the process go according to the current plans.

In return, ATI has thrown up another whole suite of red-herrings and strawman arguments that have nothing to do with the point of law at hand. They are arguing that Mann has no standing to intervene (which would seem to be obviously ridiculous given that it is his email account that is being mined), and that the Mann challenge is a focused on the legitimacy of the VFOIA request in the first place. This last argument is transparently false, since UVa has already sent over the material requested that did not come under any valid exemptions with no objection having been raised. Mann's intervention is solely focused on the procedure for dealing with material that UVa thinks is exempt, but that ATI thinks the exemption is invalid. The ATI release does not actually mention the point in question at all.

Even more interestingly, Chris Horner is quoted as saying that Mann is merely "sputtering ad hominem and conspiracy theories". This is the same Chris Horner who called Jim Hansen a 'fanatic' and wondered "Why is NASA hiding James Hansen's ethics records?" (see here for a more reality-based view). No ad hominem or conspiracy theorizing there of course.

ATI additionally claims that "Dr. Mann wants, after the fact, for UVA to throw out policies he accepted as a condition of living off of taxpayer dollars, in order to cover up public information and to evade scrutiny." - a statement wholly at odds with the facts in this case, and indeed with the VFOIA legislation itself. Why are there any mandated exemptions to total public disclosure if that any recourse to them is "a cover up" to "evade scrutiny"?

Indeed, since the point of Mann's complaint is that the ATI lawyers cannot be trusted to deal professionally with any material under seal, one would think that they would make more of an effort to appear trustworthy. One would be wrong.

ATI & UVa: Reviewing exempted material again

As highlighted here a few weeks ago, the agreement between UVa lawyers and Chris Horner and David Schnare of ATI has raised more than a few eyebrows. The point at issue is how to deal with material that UVa thinks is exempt from release under Virginia FOIA, but that ATI thinks is not.

In federal FOIA, standard practice is to produce a Vaughn Index of all the material, and to have a judge, in camera, decide on whether any challenge to an exemption is valid or not. Under the UVa Consent decree, UVa has agreed to send ATI lawyers all material (under seal) for their review. Some obvious issues with this approach were discussed in the last post.

In a new letter to UVa, the Union of Concerned Scientists has questioned the sense of this and provided Virginia case law in support of a more federal-FOIA-like approach. Specifically, they cite Bland v Virginia State University (2006) where the Virginia Court of Appeal "encouraged the filing of allegedly confidential records for in camera inspection by the trial court and, if necessary, by an appellate court" in VFOIA cases where exemptions were an issue. As with federal FOIA, this seems to make much more sense.

In response, ATI put out a press release expressing surprise that anyone would question their professionalism.

What's good for the goose...

Issues: Appeals against claimed exemptions, Vaughn Index

Washington Post: Intimidation by FOIA

In an editorial this week 'Harassing climate-change researchers', the Washington Post made a similar point to that seen in the UK Guardian last week.

FREEDOM OF information laws are critical tools that allow Americans to see what their leaders do on their behalf. But some global warming skeptics in Virginia are showing that even the best tools can be misused.

Lawyers from the Environmental Law Center at the American Tradition Institute (ATI) have asked the University of Virginia to turn over thousands of e-mails and other documents written by Michael E. Mann, a former U-Va. professor and a prominent climate scientist. Another warming skeptic, Virginia Attorney General Ken Cuccinelli II (R), recently demanded many of the same documents to determine whether Mr. Mann somehow defrauded taxpayers when he obtained research grants to study global temperatures.

A judge quashed Mr. Cuccinelli’s chilling “civil investigative demand.” But even though Mr. Mann wasn’t an agent of the commonwealth in any practical sense when he worked at U-Va., the university hasn’t been able to dismiss ATI’s requests, since Mr. Mann’s e-mails are public records in a technical sense. U-Va. agreed last week that it will hand over all the material that state law obliges it to release by Aug. 22.

ATI’s motives are clear enough. The group’s Web site boasts about its challenges to environmental regulations across the country. Christopher Horner, its director of litigation, wrote a book called “Red Hot Lies: How Global Warming Alarmists Use Threats, Fraud and Deception to Keep You Misinformed.” (We wonder whether the “alarmists” who wrote the National Research Council’s latest report on climate change are threatening, fraudulent or merely deceptive.) And ATI declares that Mr. Mann’s U-Va. e-mails contain material similar to that which inspired the trumped-up “Climategate” scandal, in which warming skeptics misrepresented lines from e-mails stored at a British climate science center.

Going after Mr. Mann only discourages the sort of scientific inquiry that, over time, sorts out fact from speculation, good science from bad. Academics must feel comfortable sharing research, disagreeing with colleagues and proposing conclusions — not all of which will be correct — without fear that those who dislike their findings will conduct invasive fishing expeditions in search of a pretext to discredit them. That give-and-take should be unhindered by how popular a professor’s ideas are or whose ideological convictions might be hurt.

Teresa A. Sullivan, U-Va.’s president, said that the university will use “all available exemptions” from the state’s public records law to shield Mr. Mann. And a university spokesperson said that U-Va. anticipates that most of the documents at issue will be exempt under a statute that “excludes from disclosure unpublished proprietary information produced or collected by faculty in the conduct of, or as a result of, study or research on scientific or scholarly issues.” The university is right to make full use of such exemptions.

An important point to note is that the editorial is not criticizing FOIA legislation in general (which would be a perverse point of view for a newspaper). Rather they are commenting on use of that legislation as a means to harass academics with a 'shoot the messenger' tactic. A similar analogy would be the if an administration used the IRS to audit the tax returns only of people in the opposing party. It is not that auditing tax returns is bad legislation, but when it is turned into a political weapon, there is a chilling effect on the political process itself. If mounting numbers of FOIA 'attack' requests discourage academics from researching or talking about certain topics, the whole research endeavor will suffer, as will the idea of informed public discourse.

ATI & UVa: Reviewing exempted material

Amid some legal gamesmanship from ATI (filing suit (pdf) against UVa during the middle of an ongoing discussion), the Virginia Court has set out the timetable for release and review of exempted material in the UVa/Mann case:

ATI v. UVa Protective Order (pdf)

This is a consent decree which means it was negotiated by the lawyers and not imposed by force of law or by the judge. It has two parts, the first a 90 day schedule from today to release the non-exempt material (some of which has already been released). This seems rather a loose timetable compared to what ATI was demanding. However the second section is a little odd. This covers the case of ATI objecting to any (or all) of the UVa exemptions. Since it is almost guaranteed that ATI will object, it makes sense to set out a process by which this will be adjudicated.

In federal FOIA, this is normally done by the production of a Vaughn Index, which the 5th Circuit has ruled is actually mandated in the case of any challenge to exempted materials. A Vaughn index is essentially a listing of all the exempted material, along with the reason for exemption but which doesn't in itself reveal what the exempted material actually is (for obvious reasons). Thus it might be a list of dates and times of emails received or sent, the topic, and the reason why it is not being released. Disputes over the exemption can then occur, with the judge deciding, in camera, whether the exemption is valid or not.

However, in this case, UVa counsel has agreed to have all the exempt material reviewed under seal by the requesting attorney's themselves! While the attorneys (Horner and Schnare) have signed non-disclosure agreements under threat of contempt of court and other sanctions, it seems highly likely that anything found which remains exempt that is interesting enough will not actually remain confidential. Thus it is surprising that UVa agreed to this. To give an example, let's assume that material reveals personal information would clearly be exempt from disclosure (for instance a potentially embarrassing medical condition among Mann's correspondents). Given that knowledge, the requestors might start to investigate to find independent corroboration of this fact. This corroboration might be safely revealed without risk of contempt of court even though the initial impetus for that line of enquiry came from exempt material. Furthermore, nothing would stop ATI from insinuating that damning material existed but that they were unable to reveal it.

This review will not take place until September, and so it is possible the terms might change.

Issues: Appeals against claimed exemptions, Vaughn Index

Academic Freedom and FOIA

In the Cronon/U. Wisonsin case, the university made an argument that exemptions to the Wisconsin Open Records Act effectively protect academic freedom, defined by them as the right of academics to "to pursue knowledge and develop lines of argument without fear of reprisal for controversial findings and without the premature disclosure of those ideas".

There is no explicit definition of academic freedom or exemption in either Wisconsin or Federal FOIA, and so the claim that academic freedom is protected rests on an interpretation of the statute.

In the UVa case, a letter from 15 organisations, including the AAUP, have urged UVa to apply the same interpretation to the Virginia statute.

The basis for an effective 'academic freedom' exemption, is given by the U. Wisconsin counsel:

5) Intellectual communications among scholars. Faculty members like Professor Cronon often use e-mail to develop and share their thoughts with one another. The confidentiality of such discussions is vital to scholarship and to the mission of this university. Faculty members must be afforded privacy in these exchanges in order to pursue knowledge and develop lines of argument without fear of reprisal for controversial findings and without the premature disclosure of those ideas. The consequence for our state of making such communications public will be the loss of the most talented and creative faculty who will choose to leave for universities that can guarantee them the privacy and confidentiality that is necessary in academia. For these reasons, we have concluded that the public interest in intellectual communications among scholars as reflected in Professor Cronon’s e-mails is outweighed by other public interests favoring protection of such communications.

This references a balance between differing public interests, and like many 'balance' arguments, is potentially open to judicial review.

Unsurprisingly, ATI feels strongly that the balance should be in favor of disclosure, and may well sue to get a review of the eventual UVa redactions (as CEI has done in the NASA case).

In Virginia law, the relevant passage for similar exclusions would be:

Data, records or information of a proprietary nature produced or collected by or for faculty or staff of public institutions of higher education, other than the institutions' financial or administrative records, in the conduct of or as a result of study or research on medical, scientific, technical or scholarly issues, whether sponsored by the institution alone or in conjunction with a governmental body or a private concern, where such data, records or information has not been publicly released, published, copyrighted or patented.

Update: UVa has responded to the letter with a declaration that UVa will use "all available exemptions" consistent with following the letter of the law.

Issues: academic freedom

UVa responses to VFOIA requests

The University of Virginia has collated a timeline of requests and responses to multiple requests under Virginia FOIA. Since the full exchanges between requesters and the university are provided, it is a good way to see the issues that can arise.

First note, that while anything can be requested, the response depends on multiple issues - whether the records exist, whether they are 'public records', whether they fall under any exemptions in the FOIA law, and whether they are protected from disclosure under any other relevant laws (such as FERPA, which protects students personal information). Note that Virginia FOIA requires the requester to be a Virginia resident (which is why Chris Horner of CEI is now using ATI as a vehicle for these requests).

For any specific request, particularly for broad categories like 'all emails', it is not a priori obvious that a specific individual email that meets the search criteria is releasable. That generally needs to be decided on an email-by-email case. In response to Greenpeace (who requested records related to Pat Michaels), UVa rightly made it clear that no 'unfiltered' release of records would be possible.

Given then that extremely broad requests of emails will likely result in thousands of potentially responsive documents, someone needs to go through each of those records to assess the releasability. Federal and Virginia FOIA allow for the charging of fees to cover the cost of searching, redacting and reviewing documents, though this is sometimes waived in federal cases where agency staff are permanently assigned as FOIA support etc. Note that ATI initially challenged the application of fee for reviewing the documents, but UVa insisted that this was in fact permitted under guidelines from the VFOIA Advisory Council.

UVa therefore has requested deposits of fees prior to commencing any individual email review process, based on the reasonable estimate that one person can review roughly 90 emails an hour. (Other estimates from similar situations might give 70 to 100 emails/hour, but it depends clearly on the complexity of the material). UVa appears to be using law students to perform the reviews and are charging $25/hour for that. In cases referred to here, the number of documents is on the order of 35,000 individual records - implying eventual costs of review at $8000 or more (final costs to be decided once review is complete).

Issues: Fees, exemptions, standing

ATI FOIA requests at UVa

ATI and Del. Bob Marshall have also put in FOIA requests under Virginia law for all of the emails requested by Ken Cuccinelli as part of his FATA inquiry. Note that the response to a CID under FATA (currently under consideration by the Virginia Supreme Court) has nothing to with what is releasable under FOIA.

ATI FOIA Request to UVa from Mann emails

Marshall had a previous request for Mann's emails turned down since the records did not exist at Virginia. If a backup server that might have responsive records has subsequently been found (as claimed in the ATI request), then anything responsive still needs to be filtered for privacy, communications not related to an official position, academic freedom concerns etc.

Virginia FOI laws can be found here.

Cronon: U Wisconsin responds

As expected, the U. Wisconsin response to the Open Records Request for William Cronon's emails will assert privacy, personal records, and academic freedom exemptions:

Members of the campus community,

Two weeks ago UW-Madison received an open records request from Stephan Thompson, deputy executive director of the state's Republican Party, for email records of Professor Bill Cronon.

Professor Cronon is the Frederick Jackson Turner and Vilas Research Professor of History, Geography and Environmental Studies at UW-Madison. He is one of the university's most celebrated and respected scholars, teachers, mentors and citizens. I am proud to call him a colleague.

The implications of this case go beyond Bill Cronon. When Mr. Thompson made his request, he was exercising his right under Wisconsin's public records law both to make such a request and to make it without stating his motive. Neither the request nor the absence of a stated motive seemed particularly unusual. We frequently receive public records requests with apparently political motives, from both the left and the right, and every position in between. I announced that the university would comply with the law and, as we do in all cases, apply the kind of balancing test that the law allows, taking such things as the rights to privacy and free expression into account. We have done that analysis and will release the records later today that we believe are in compliance with state law.

We are excluding records involving students because they are protected under FERPA. We are excluding exchanges that fall outside the realm of the faculty member's job responsibilities and that could be considered personal pursuant to Wisconsin Supreme Court case law. We are also excluding what we consider to be the private email exchanges among scholars that fall within the orbit of academic freedom and all that is entailed by it. Academic freedom is the freedom to pursue knowledge and develop lines of argument without fear of reprisal for controversial findings and without the premature disclosure of those ideas.

Scholars and scientists pursue knowledge by way of open intellectual exchange. Without a zone of privacy within which to conduct and protect their work, scholars would not be able to produce new knowledge or make life-enhancing discoveries. Lively, even heated and acrimonious debates over policy, campus and otherwise, as well as more narrowly defined disciplinary matters are essential elements of an intellectual environment and such debates are the very definition of the Wisconsin Idea.

When faculty members use email or any other medium to develop and share their thoughts with one another, they must be able to assume a right to the privacy of those exchanges, barring violations of state law or university policy. 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 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.

This does not mean that scholars can be irresponsible in the use of state and university resources or the exercise of academic freedom. We have dutifully reviewed Professor Cronon's records for any legal or policy violations, such as improper uses of state or university resources for partisan political activity. There are none.

To our faculty, I say: Continue to ask difficult questions, explore unpopular lines of thought and exercise your academic freedom, regardless of your point of view. As always, we will take our cue from the bronze plaque on the walls of Bascom Hall. It calls for the "continual and fearless sifting and winnowing" of ideas. It is our tradition, our defining value, and the way to a better society.

Issues: agency records, academic freedom

Dr. William Cronon and the Wisconsin Republican Party

This is not related to climate science, but is another example of organisations abusing the FOI/Open Public Records Acts to harass academics with whom they disagree.

Dr. William Cronon, a history professor in the U. Wisconsin wrote a blogpost concerning the drivers behind recent Republican legislative actions in Wisconsin. Two days later, the State Republican party put in a request for his emails from his state (@wisc.edu) account related to Republican politicians, unions, and protests. Read more here:

Open Records Attack on Academic Freedom

When such tools are turned toward purely partisan ends, and when they are used with the express purpose of intimidating or punishing those with whom powerful people disagree, then precious institutions of democracy are deployed to subvert the very liberties we all cherish. It is for this reason that I have spent so much time trying to articulate why I don’t believe the Wisconsin Republican Party should be invoking the Open Records Law to single me out for scrutiny—and implicitly for punishment—in this way.

Relevant Wisconsin OPR Statutes:

In determining whether a document is a record under sub. (2), the focus is on the content of the document. To be a record, the content of the document must have a connection to a government function. In this case, the contents of teachers' personal e-mails had no connection to a government function and therefore are not records under sub. (2). The contents of personal e-mails could, however, be records under the public records law under certain circumstances. Schill v. Wisconsin Rapids School District, 2010 WI 86, 327 Wis. 2d 572, 786 N.W.2d 177, 08-0967.

New York Times Editorial (March 25, 2011):

A Shabby Crusade in Wisconsin

The latest technique used by conservatives to silence liberal academics is to demand copies of e-mails and other documents. Attorney General Kenneth Cuccinelli of Virginia tried it last year with a climate-change scientist, and now the Wisconsin Republican Party is doing it to a distinguished historian who dared to criticize the state’s new union-busting law. These demands not only abuse academic freedom, but make the instigators look like petty and medieval inquisitors.

The historian, William Cronon, is the Frederick Jackson Turner and Vilas research professor of history, geography and environmental studies at the University of Wisconsin, and was recently elected president of the American Historical Association. Earlier this month, he was asked to write an Op-Ed article for The Times on the historical context of Gov. Scott Walker’s effort to strip public-employee unions of bargaining rights. While researching the subject, he posted on his blog several critical observations about the powerful network of conservatives working to undermine union rights and disenfranchise Democratic voters in many states.

In particular, he pointed to the American Legislative Exchange Council, a conservative group backed by business interests that circulates draft legislation in every state capital, much of it similar to the Wisconsin law, and all of it unmatched by the left. Two days later, the state Republican Party filed a freedom-of-information request with the university, demanding all of his e-mails containing the words “Republican,” “Scott Walker,” “union,” “rally,” and other such incendiary terms. (The Op-Ed article appeared five days after that.)

The party refuses to say why it wants the messages; Mr. Cronon believes it is hoping to find that he is supporting the recall of Republican state senators, which would be against university policy and which he denies. This is a clear attempt to punish a critic and make other academics think twice before using the freedom of the American university to conduct legitimate research.

Professors are not just ordinary state employees. As J. Harvie Wilkinson III, a conservative federal judge on the Fourth Circuit Court of Appeals, noted in a similar case, state university faculty members are “employed professionally to test ideas and propose solutions, to deepen knowledge and refresh perspectives.” A political fishing expedition through a professor’s files would make it substantially harder to conduct research and communicate openly with colleagues. And it makes the Republican Party appear both vengeful and ridiculous.

Issues: Agency records, academic freedom

Delg. Bob Marshall and UVa

Delegate Bob Marshall (Virginia State legislature) posted this FOI under the Virginia statutes (Dec 19 2009):

Marshall UVa

The request was refused due to non-existence of any responsive documents.

Issues: Prior existence of records

Michigan: Howell Email descision

Michigan uses Federal FOIA as precedent, but in this case is a little ahead of federal case law.

Howell v Howell Zarko

The issue is to what extent personal emails sent by state employees - even if the employees are misusing state equipment - are agency records. The court ruled that personal emails do not automatically become 'agency records' just by virtue of being captured in an agency email system.

Issues: Agency records