Exactly one year ago today, Virginia’s highest court issued an important ruling balancing government transparency with academic freedom for public university faculty. And last month, an Arizona state court did the same.
On April 17, 2014, the Virginia Supreme Court ruled that the University of Virginia did not violate the state’s Freedom of Information Act by withholding certain emails and research by former UVA professor Michael Mann in response to a request filed by the American Tradition Institute and a state delegate. In finding for UVA, the Virginia Supreme Court cited affidavits filed by scholars testifying to the negative impact that forced disclosure of unpublished material would have on the academy. The court quoted John Simon, Vice President and Provost of UVA and former Vice Provost of Duke University, at length:
For faculty at public institutions such as the University of Virginia, compelled disclosure of their unpublished thoughts, data, and personal scholarly communications would mean a fundamental disruption of the norms and expectations which have enabled research to flourish at the great public institutions for over a century … .
FIRE agrees. We have written often here on The Torch about the delicate balance to be struck between the need for government transparency provided by Freedom of Information Act requests and the need to protect the academic freedom of public university faculty members.
It’s a tricky exercise, but one that’s vitally important to get right—particularly given the increasing attempts in recent years by outside organizations on both sides of the partisan divide to troll the records of public university faculty for “gotcha” material. Back in December, we observed that the “use of state open records laws or other statutory means to facilitate partisan fishing expeditions in the academy is a worrying trend that threatens academic freedom by chilling faculty expression, research, and debate.” We made that observation in response to University of Kansas lecturer Art Hall’s lawsuit to prevent the release of email correspondence in response to an open records request filed by the KU student group Students for a Sustainable Future, and we’ve made similar points in response to requests from parties on the other side of the debate. The trend is spreading, as other observers have noticed.
That’s why we’re pleased with a late March ruling from an Arizona state court in the case of Energy & Environmental Legal Institute v. Arizona Board of Regents that effectively reaches the same result as last year’s ruling from the Virginia Supreme Court.
The case arose from the Arizona Board of Regents’ decision to withhold the emails of two University of Arizona climate scientists from an open records request made by the Energy & Environmental Legal Institute. Under Arizona precedent, state agencies are presumptively required to disclose requested information, but agencies may seek to have records declared exempt “if release of the information would have an important and harmful effect upon the official duties of the official or agency.” Church of Scientology v. City of Phoenix Police Department, 122 Ariz. 338, 339 (Ct. App. 1979). After noting the complexity of the emails at issue (“to describe the content of the emails as technical and esoteric is an understatement … and, by no stretch, was the Court able to fully comprehend the substance of the emails”), Judge James Marner of the Arizona Superior Court, Pima County took careful note of the competing interests at stake.
In defending its decision not to release the emails—which include “prepublication critical analysis, unpublished data, analysis, research, results, drafts, and commentary”—the Arizona Board of Regents argued that “to do so would have a chilling effect on the ability and likelihood of professors and scientists engaging in frank exchanges of ideas and information.” In turn, the Energy & Environmental Legal Institute argued that this chill was speculative, and that “the interest in the content of the contested emails to the public at large greatly exceeds any potential reduction in collaboration between some scientists and professors at public universities.”
The court weighed these conflicting claims with reference to the relevant standard for judicial review: “[D]id AzBOR abuse its discretion or act arbitrarily or capriciously?” While noting the obvious temptation of government actors to simply and self-servingly declare themselves harmed as a result of producing requested documents, Judge Marner found that “the abundance of supporting evidence presented by AzBOR”—including “an impressive array of scholars, academic administrators, professors, etc., who, by way of affidavits, provide[d] compelling support of its position”—justified their exemption. The court concluded:
When the release of information would have an important and harmful effect on the duties of a State agency or officer, there is discretion not to release the requested documents. Arizona Board of Regents v. Phoenix Newspapers, Inc., 167 Ariz. 254, 257-58, 806 P.2d 348, 351-52 (1991). After weighing the evidence presented in this matter, the Court cannot conclude that by withholding the remaining emails for the reasons stated, AzBOR abused its discretion or acted arbitrarily or capriciously.
This is a careful, well-considered ruling. The court took seriously its obligation to balance the competing interests at stake, aware of both the importance of each side’s motivations and the the state’s significant burden to prove harm. By recognizing that releasing faculty emails that include unpublished work and research would harm academic freedom, the court reached the right conclusion, one that preserves the right of public university faculty to think, communicate, innovate, and discuss ideas without fear of political backlash. This result is consistent with the Supreme Court of the United States’ bold declaration in Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957):
The essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. No field of education is so thoroughly comprehended by man that new discoveries cannot yet be made. Particularly is that true in the social sciences, where few, if any, principles are accepted as absolutes. 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.