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Careful Reform Needed to Reduce State FOIA Chilling of Academic Activity

By June 16, 2014

Each state has its own Freedom of Information Act (FOIA) to provide public access to records produced by public officials, often called “sunshine laws” for the light they shed on government actions and decision-making. Sunshine laws typically list the kind of records that may and may not be requested, often with great specificity. As a result of their state funding, state universities are typically considered public bodies under these laws, and accordingly, the correspondence and documents of faculty members are often subject to public request by virtue of their government employment.

However, because professors often conduct controversial research and write on subjects of political or social import, they have been increasingly faced with public records requests from those who object to their research or opinions, seeking access to everything from unreleased research to emails between professors. These requests have the potential for engendering a chilling effect on academic work that displeases a particular political constituency. For example, FOIA requests in the academy are often targeted at research on hot-button topics like climate change and research that uses animal testing.

The Supreme Court has long expressed concern for the kind of academic environment that these requests may create, stating in the landmark case Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957):

Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.

Sharing this concern, many states have added exemptions to their FOIAs to protect professors at their public institutions. Twenty-one states have some kind of academic research exemption, while all but eight states maintain a form of “trade secret” exemption that could be applied to scholarly research by professors in particular situations.

Some critics are concerned, however, that these exemptions shield university employees too much, arguing that they reduce administrative accountability. For example, a public outcry for change in Pennsylvania’s FOIA rose up following the Jerry Sandusky scandal when it was revealed that Penn State’s campus police records couldn’t be accessed by the public. Since Penn State receives only part of its funding from the state, it was given a “state-related” status in Pennsylvania’s FOIA that awarded it broad exemptions. A Pennsylvania bill that passed the State House and is set to go before the Senate seeks to change this exemption.

It’s important, though, to separate this kind of problematically broad university exemption from those that are narrowly defined to protect research records. Well-crafted exemptions specifically note what types of academic documents are exempt, while ensuring that other documents such as administrative and financial records are still accessible.

Virginia’s FOIA exemption for educational institutions is a good example of an effectively narrow exemption. It states that the following types of documents are exempt:

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.

This exemption protects the work of professors while ensuring that the financial decisions of administrative officials can be monitored by the tax-paying public.

Virginia’s FOIA has been tested in the courts, as covered by FIRE in the 2010 case involving former University of Virginia (UVA) professor Michael Mann. In this case, Virginia Attorney General Ken Cuccinelli made a Civil Investigative Demand (CID) for “data, materials, and communications” in order to investigate possible fraud in Mann’s climate change research (FIRE criticized the CID in a letter to Cuccinelli urging him to reconsider the threat it presented to academic freedom). The trial court set aside the CID, holding that while Cuccinelli had written extensively in his request on the controversiality of Mann’s research, he failed to demonstrate a reason to believe that fraud had occurred. The Virginia Supreme Court affirmed the ruling this past April.

Relatedly, FIRE has recently discussed Virginia’s continuing FOIA faculty exemption battles in the case of UVA Professor Douglas Laycock. At the end of May, two UVA students (Greg Lewis and Stephanie Montenegro) made FOIA requests for the records of Laycock, a legal scholar who focuses on religious liberty jurisprudence. What will result from these requests remains to be seen, but with Virginia’s exemption and the precedent set by the Mann case, it’s unlikely that the court will require the release of the documents in this case. In the meantime, the students’ requests have earned widespread criticism. Writing for Slate, Dahlia Lithwick voiced concerns about the chilling effect of requests like this:

The groups who don’t like that anti-LGBT movements get intellectual cover from Laycock’s legal arguments are free to say so, loudly, passionately, and publicly. But using a FOIA request to try to get dirt on him, to imply that he is doing something unsavory with those groups, is simply a smear tactic with no objective beyond embarrassing and chilling that work. Nobody is claiming that legal academics are untouchable. But academic freedom isn’t something you want to mess with recreationally either.

Lithwick identifies the true problem here, because whether or not higher education research FOIA requests are exempt, if they continue to be marshalled against professors with the intention of causing a nuisance, professors may shy away from controversial work. Such a result would lead to the same chilling effect the exemptions wisely sought to avoid.

The necessary reform of state FOIA statutes is, therefore, twofold. First, states must review and, if necessary, revise their FOIAs to ensure that they provide an academic teaching and research exemption that is sufficiently protective, while remaining specific enough to maintain accountability of university administrations. States like Pennsylvania that are already pursuing higher education exemption reform must take care not to eliminate the exemptions to the point that they no longer protect faculty members’ academic freedom.

Second, as Michael Halpern, writing for the Union of Concerned Scientists, has suggested, parties who may find themselves impacted by FOIA requests should prepare for how to best handle them. Halpern writes:

University lawyers and their associations should devote time and resources to determining and publicly disclosing how they will respond to open records requests. Those who work for public institutions should be made aware of their rights and responsibilities for using email systems. Scientific societies should recognize that sometimes, what is in the best interest of the university won’t be in the best interest of the individual scientist, and should offer programs that offer legal assistance to protect researchers’ privacy. Groups such as the National Academy of Sciences should provide guidance to legislators and universities on what kinds of materials should be disclosed and what kinds should be protected.

Groups with these concerns would indeed benefit from taking Halpern’s sound advice. While states may currently have adequate exemptions or even may change to better exemptions upon re-examination, it doesn’t look like these harassing requests are going to stop soon—even when they fly in the face of precedent, as in the Laycock situation.

If professors are provided with the guidance on how to deal with these kind of requests, they will turn to those tools to cope with them. If they are not, they are more likely to self-censor—a result that harms all of us.

Hopefully Virginia’s example—with regard both to the FOIA as written by the legislature and as interpreted by UVA and the courts—will guide the rest of the nation in making these changes to protect academic freedom.

Laura Beltz is a FIRE legal intern.

Schools: University of Virginia