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.

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

ATI and NASA

The American Tradition Institute (ATI) is another in a long line of astroturf organisations in DC who shuffle through the same small number of activists. The only two people who appear to be active in this organization are Paul Chesser (formerly of the Heartland Institute and John Locke foundation), and the 'director' of their Environmental Law Center, Chris Horner, who is also an attorney for CEI.

They put in a request in 2011 for records related to Jim Hansen's (GISS) outside activities. This was mostly refused on the 'personal information' FOIA exemption (NASA Response).

ATI have now appealed that decision. Curiously they are using information gained via the CEI vs NASA lawsuit in DC district court, being pursued by.... Chris Horner.

Issues: FOIA Appeals, Personnel records, official duties

CEI and NASA: Lawsuit (ongoing)

After an appeal is denied, or a requester is still not satisfied with the response, a lawsuit for judicial review can be filed.


NASA Complaint

This is ongoing litigation in DC District Court.

The DoJ (acting for NASA) submitted a motion for summary judgement:

Motion for Summary Judgment by DoJ in CEI vs NASA (2010)

which CEI responded to:

CEI response to DoJ motion for summary judgment in CEI vs NASA (2010)

and DOJ replied to:

DoJ reply to CEI in support of motion for summary judgement in CEI vs NASA (2010)

Motions are currently under consideration.

CEI and NASA: Appeal

All US agencies have an internal appeals procedure if requesters are unsatisfied with the initial response. CEI was unsatisified with responses to their first three FOIA requests.


Horner Appeal


The appeal was rejected for two of the three requests, and for the third, it was remanded to GSFC for a 'do-over'.

GISS FOI Response to Appeal

Follow-on: Lawsuit (ongoing)

Issues: FOIA Appeals, definition of agency records

Rep. John Linder and NASA

Congress can of course request any information from any agency without going through the FOIA process. This is one example from Rep. John Linder who did use FOIA from Dec 2009:

Linder to NASA


Issues: Information in the public domain, broadness of request

Judicial Watch and NASA: Part II

Judicial Watch (Sourcewatch) submitted the following Dec 9 2009 request to NASA:

Judicial Watch FOIA Request #2

This request was made in the wake of the CRU email leak and was a attempt to find links between IPCC, CRU, GISS and the White House.

Follow-on: Not known

Issues: Prior existence of records, predecisional privilege

US FOIA Issues: Agency Records

The US FOI Act covers US federal agencies (note this does not include Congress) and facilitates the release of 'agency records'. This is not defined in the legislation and has subsequently been clarified in extensive case law.

The Dept. of Justice offers some guidance and the issues are discussed extensively in the Procedural Requirements document.

There are no blanket and general rules for determining whether a specific record is an 'agency record' for the purposes of FOIA. It is not the case that any record in an Agency system or on an agency computer is automatically an agency record. Instead there is a balance argument that must be applied for any record (even down to each individual email). The points to be considered are the following:

• Creation -- Was the document created by an agency employee on agency time, with agency materials, at agency expense? (if not, then it very likely is not an "agency record," on that basis alone.)


• Content -- Does the document contain "substantive" information? (If not, then it very likely is not an "agency record," on that basis alone.) Does it contain personal as well as official business information?


• Purpose -- Was the document created solely for an individual employee's personal convenience? Alternatively, to what extent was it created to facilitate agency business?


• Distribution -- Was the document distributed to anyone else for any reason, such as for a business purpose? How wide was the circulation?


• Use -- To what extent did the document's author actually use it to conduct agency business? Did others use it?


• Maintenance -- Was the document kept in the author's possession, or was it placed in an official agency file?


• Disposition -- Was the document's author free to dispose of it at his personal discretion? What was the actual disposal practice?


• Control -- Has the agency attempted to exercise "institutional control" over the document through applicable maintenance or disposition regulations? Did it do so by requiring the document to be created in the first place?


• Segregation -- Is there any practical way to segregate out any personal information in the document from official business information?


• Revision -- Was the document revised or updated after the fact for record-keeping purposes?

One net effect of these points is that personal communications, even if saved on an agency system, that are with non-agency personnel, or that do not discuss agency business, are not likely to be 'agency records'. This is an entirely separate issue from whether such communications can be examined by the agency or employer.

Note too that:

• Agencies are not required to answer questions posed as FOIA requests.


• Nor does the FOIA require agencies to respond to requests by creating records


• Agencies also cannot be required by FOIA requesters to seek the return of records over which they retain no "control"


• Requesters cannot compel agencies to make automatic releases of records as they are created, which means that requests cannot properly be made for "future" records not yet created.

CEI and NASA: Part III

In January 2010, CEI filed another request to NASA GISS.

This was notable for the breadth of the request (which would lead the Dept. of Justice to throw it out as being impossible to serve), but also for the widening of the lists of scientists targeted. Of the 17 scientists named, one 'Ron Milley' does not exist, and 3 do not work for 'NASSA' [sic] at all.

Commentary at Dot Earth.

CEI and NASA: Part II

In January 2008, CEI made a FOI request for all communications by a specific scientist, Gavin Schmidt, related to the blog Realclimate.

FOIA Request #08-040


The issue originally in play here is to what extent correspondence that deals with non-official activities is an 'agency record'.


Issues: Definition of agency records

Follow-on: Response, Appeal (upheld), Second Response, Lawsuit (ongoing)

CEI and NASA: Part I

The Competitive Enterprise Institute (CEI) (Sourcewatch) is in the vanguard of submitting FOI requests for climate scientist communications. Their principle targets have been the NASA Goddard Institute for Space Studies in New York, NCAR in Colorado, the U. of Virginia, and the EPA among others. Their requests to NASA started in August 2007 and first concerned the minor correction of the GISTEMP dataset:


FOIA 07-175


FOIA 07-172


The responses were the posted online in the GSFC Electronic Reading Room.

Follow-up: Appeal (denied), Lawsuit (ongoing).