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Arizona appellate court reverses forced disclosure of professors’ academic records

By September 21, 2017

In a recent decision implicating academic freedom and open records laws, the Arizona Court of Appeals reversed a lower court’s decision ordering the University of Arizona to disclose the private academic records of two climate scientists. The court’s decision in Energy & Environment Legal Institute v. Arizona Board of Regents is a victory for professorial academic freedom in the face of intrusive and chilling open records requests.

As described by the American Association of University Professors,  this case has “a long and tortured history” encompassing “two lower court decisions, two appeals court decisions, and three AAUP amicus briefs.”

The legal brouhaha began with an open records request by the Energy & Environment Legal Institute for the “prepublication critical analysis, unpublished data, analysis, research, results, drafts, and commentary” and other academic records of two University of Arizona climate scientists. After the university denied the request, a lawsuit brought by the Energy & Environment Legal Institute to force disclosure ensued, resulting in multiple Arizona courts ruling on whether disclosure is required.

The conflict between open records laws and academic freedom is undoubtedly a tricky one. On one side of the scale is the salutary effect of open and transparent government, while on the other side rests the ability of professors to fearlessly research, teach, and discuss controversial topics.

When open records laws are used to target professors for speaking out on contentious issues, such as climate science, courts must strike a delicate balance between two equally paramount interests or determine whether the requested records are exempt from disclosure.

According to the appellate court’s decision, the lower court failed to either consider relevant exemptions or balance the competing interests. The trial court did not consider a statute exempting “unpublished research data” and “drafts of scientific papers” from disclosure, nor did it consider whether disclosure would be “contrary to the best interests of this state” as required by law when the request concerns state university professors. This caused the appellate court to reverse the disclosure order and send the case back to the lower court for further proceedings.

The AAUP, as well as FIRE, has long highlighted the dangers of forcing disclosure of unpublished academic records. In the AAUP’s latest amicus brief in this case, it argued that “compelling disclosure of academic research . . . implicates not only financial injury, but also harm to university-wide research efforts, damage to faculty recruitment and retention, undermining of faculty expectations of privacy and confidentiality, and impairment of free thought and expression” (internal quotations and citations omitted).

The AAUP brief also cites studies discussing the chilling effect of targeting professors with abusive open records requests, which often cause professors to change research topics, self-censor, and even leave the profession.

We agree with the AAUP that these fishing expeditions into professors’ private communications and research have a profoundly detrimental effect on academic freedom — which the Supreme Court has held is a “special concern of the First Amendment” with “transcendent value to all of us and not merely to the teachers concerned.” While the power of open records laws to expose government wrongdoing must not be blunted, it is equally vital that these laws are not used to intimidate public university professors into silence.

We urge the Arizona trial court to strike this balance by rejecting the Energy & Environment Legal Institute’s request for the unpublished academic research of University of Arizona professors.

We will keep our readers apprised of the result.

Schools: University of Arizona