Brian Sandberg: Historical Perspectives

The University of Wisconsin at Madison has taken a weak stance regarding the politically-motivated open records request on Professor William Cronon’s e-mails.

The Chronicle of Higher Education reports that the University of Wisconsin at Madison will comply with the request, releasing some of Professor Cronon’s e-mails when they are not of a personal nature.

The University of Wisconsin at Madison has failed to defend the principle of academic freedom and has refused to consider the status of professors.  Wisconsin’s open records legislation appears to define professors as individuals who would not be considered as government personnel for the purposes of open records requests (see previous post).  However, the University of Wisconsin lawyers apparently do not want invoke the legislation to challenge the request.  See a commentary in the Wisconsin State Journal by two political science professors on the distinction between a government official (who holds power and therefore must be held accountable to the public by open records laws) and a government employee (who holds no official power and therefore is no subject to open records laws).  Faculty members at public universities (as state government employees) are subject to having their e-mails checked by their employers, but should not be legally subject to open records requests.

The university’s weak stance in this case sets a terrible precedent for other universities to use in future cases of FOIA requests.  The result damages the principle of academic freedom and weakens American higher education.

Now that the news of an open records request on University of Wisconsin Professor William Cronon has gone viral, other faculty at public universities are already being targeted by politicized FOIA requests, as a story in the New York Times indicates.

These requests seem to violate the purpose of FOIA laws and clearly represent attacks on academic freedom.  I think that faculty and lawyers need to examine FOIA laws to determine whether faculty at public universities can legitimately be targeted with FOIA requests.

The Wisconsin Open Records Law states that:

“19.31  Declaration of policy. In recognition of the fact that a representative government is dependent upon an informed electorate, it is declared to be the public policy of this state that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them. Further, providing persons with such information is declared to be an essential function of a representative government and an integral part of the routine duties of officers and employees whose responsibility it is to provide such information. To that end, ss. 19.32 to 19.37 shall be construed in every instance with a presumption of complete public access, consistent with the conduct of governmental business. The denial of public access generally is contrary to the public interest, and only in an exceptional case may access be denied.”

But, this power to compel state “authorities” or “employees” to produce documents is limited by provisions of 19.32 and 19.37.

The provisions of 19.32 seem to exempt University of Wisconsin faculty from Open Records Act requests.  Provision 19.32 (4) defines “state public office”: “‘State public office’ has the meaning given in s. 19.42 (13), but does not include a position identified in s. 20.923 (6) (f) to (gm)” [my emphasis].

The exception identified in 20.923 (6) (f) is: “University of Wisconsin System: deans, principals, professors, instructors, research assistants, librarians and other teachers, as defined in s. 40.02 (55), the staff of the environmental education board, and instructional staff employed by the board of regents of the University of Wisconsin System who provide services for a charter school established by contract under s. 118.40 (2r) (cm).”

So, University of Wisconsin administrators are covered by the act, but not the academic and educational personnel, including “deans, principals, professors, instructors, research assistants, librarians and other teachers.”

I am not a lawyer, so I have no expertise on this issue.  This post represents my own reading of the Wisconsin Open Records Act, which is available online.  Several constitutional lawyers have commented on this issue online, including Professor Ruthann Robson, who points out on her blog that:

The most recent Court opinion regarding a First Amendment challenge to a state FOIA request was the June 2010 decision in Doe v. Reed, in which the Court considered a request under Washington’s state open records law to reveal the signatories for a ballot initiative to revoke the same-sex civil union law. In Reed, the Court articulated an “exacting scrutiny” standard, “requiring a ‘substantial relation’ between the disclosure requirement and a ‘sufficiently important’ governmental interest.” To withstand this scrutiny, “the strength of the governmental interest must reflect the seriousness of the actual burden on First Amendment rights.”

In Reed, the government interests were “preserving the integrity of the electoral process by combating fraud, detecting invalid signatures, and fostering government transparency and accountability” and that these sufficed to defeat the First Amendment challenge to the disclosure of referendum signatures.

This decision, combined with the provisions of the Open Records Act mentioned above, suggests that the records of faculty members who are not holding “state public office” do not seem to be counted as public records, and therefore should not be subject to Open Records Act requests.

Anthony Grafton, an early modern European historian and current President of the American Historical Association, has published a comment on the political attacks on William Cronon in the New Yorker.

Grafton provides contextualization and commentary, referring to this growing controversy as “the Cronon Affair.”