Last Thursday, University of Kansas (KU) lecturer Art Hall filed a lawsuit (PDF) in state court to prevent the institution from releasing his email correspondence in response to an open records request filed by the KU student group Students for a Sustainable Future. The student group sought information about Hall’s relationship to Charles and David Koch, who are substantial donors to the university. Hall is the executive director of the Center for Applied Economics, which operates within KU’s School of Business, but he had previously worked with Koch Industries.
Hours after Hall filed suit, Judge Robert Fairchild of Douglas County District Court issued a temporary restraining order prohibiting KU from releasing further records to Students for a Sustainable Future. (The university had already released some documents concerning Hall’s hiring to the group earlier this month.) The temporary restraining order allows the court time to determine whether Hall’s correspondence has to be disclosed under the Kansas Open Records Act.
This is the right result. The court’s order should ensure a careful review of the records in question and an appropriately thorough consideration of the academic freedom interests implicated by the request. As Hall himself explained in an op-ed this week for the Lawrence Journal-World:
A student group at KU that disagreed with testimony I delivered on a specific piece of legislation used the Kansas Open Records Act (KORA) to request copies of my private e-mail correspondence for the past 10 years. This is a misuse of open-records law, a type of misuse that seems to be spreading nationwide. The policy intent of open-records laws is to aid the transparency of government operations and deliberations, not to suppress debate and free academic inquiry.
The students’ misuse of KORA explains why I recently took legal action against KU; not out of hostility or secrecy, but to take a stand for the principle of academic freedom. While my attorney and I believe that the private records the students asked for are exempt from release under certain provisions of the KORA, KU planned to comply with the students’ request. My legal action will allow a judge to adjudicate the different interpretations of KU’s legal obligations under the KORA.
But even though the court seems to be committed to striking the right balance between transparency and academic freedom, it’s unfortunate to see yet another example of academic correspondence targeted for political ends. Hall is correct to note that this use of open records laws is spreading nationwide. As he writes, “If my private, personal communications are released, I will not be the only one whose academic freedom is jeopardized. The issue is much larger and could ultimately jeopardize the academic freedom of any scholar at a public institution of higher education.”
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. As FIRE supporters know, we’ve weighed in against these types of practices—used by both sides of the ideological divide—on several occasions in recent years.
For example, back in 2010, FIRE strongly criticized former Virginia Attorney General Ken Cuccinelli’s civil investigation of former University of Virginia (UVA) professor Michael Mann. Cuccinelli used his authority under a state fraud act to order UVA to turn over “data, materials and communications” produced by Mann in securing grants. In our letter (PDF) to Cuccinelli, we argued:
This investigation provides a dangerous opening for politically motivated attacks on the academy from elected officials. Once the precedent of using [the Virginia Fraud Against Taxpayers Act] to investigate academic research has been set, no professor studying anything controversial at a Virginia public institution of higher education will be safe. Professors in academic fields of study such as nuclear energy, evolution, sociology, and genetics, in which research conclusions are often highly controversial, will have reason to fear that publishing results unpopular with the elected officials currently in power in Virginia will lead to time-consuming, expensive, and intrusive investigations. Ultimately, scientists and researchers will feel political pressure to alter their peer-reviewed research agendas or hide their peer-reviewed results in order to avoid investigations, which would retard the progress of science in Virginia and cause a "brain drain" as the best and most independent scientists leave for institutions in other states. Worse yet, such a precedent could lead Virginia universities themselves to discourage research into controversial fields of study lest any unpopular conclusions attract politically motivated and unfair investigations by elected officials.
Later that year, FIRE was pleased to note that Cuccinelli’s effort was dismissed by a state court. But a parallel open records law request filed with UVA in 2011 by the American Tradition Institute and a Republican state lawmaker resulted in further litigation after UVA went to court to challenge the request. This past April, the Virginia Supreme Court sided with the university.
Similarly, in 2011, the Republican Party of Wisconsin filed a state open record law request seeking the emails of University of Wisconsin-Madison (UWM) history professor William Cronon that included certain words or names of politicians. As I noted here on The Torch at the time, the request raised serious legal questions and implicated academic freedom:
[A]ny conception of academic freedom includes, at a minimum, the professor’s general right to discuss ideas with his or her colleagues and students without fear of official reprisal. An open records request like the one at issue here is of course not official reprisal—for one, it is generated by a fellow citizen or group of citizens, not the state, although the state itself must enforce it. But were open records requests to be regularly invoked by private citizens in attempts to burden, embarrass, or otherwise hassle those professors whose research and scholarship they found objectionable, these legal requests might soon amount to a real threat to academic freedom, casting a chill on speech in the academy and encouraging professors and students to avoid dialogue about unpopular or controversial subjects. Put another way: If professors worried that every time they wrote anything controversial, they’d be forced to submit all of their emails into the public record, they would certainly think twice about writing anything remotely controversial. That would negatively impact both their right to speak as citizens and the robust academic exchange we expect on our campuses.
Eventually, UWM released some records, but withheld others, citing the Family Educational Rights and Privacy Act, a federal student privacy law, and academic freedom interests. As former UWM Chancellor Biddy Martin wrote:
When faculty members use email or any other medium to develop and share their thoughts with one another, they must be able to assume a right to the privacy of those exchanges, barring violations of state law or university policy. Having every exchange of ideas subject to public exposure puts academic freedom in peril and threatens the processes by which knowledge is created.
And again, groups from across the ideological spectrum engage in this kind of behavior. Just this past May, students at the University of Virginia School of Law worked with the LGBT rights group GetEQUAL to file a Freedom of Information Act request seeking records related to Professor Douglas Laycock, a prominent legal scholar with expertise in religious liberty. As I wrote at the time, “Here we go again.”
Happily, I wasn’t alone in my criticism of the students’ use of FOIA and the threat to academic freedom presented by these types of tactics. Walter Olson, Dahlia Lithwick, and Jonathan Adler all quickly identified the problem, too. And over the summer, FIRE Legal Intern Laura Beltz of the University of Pennsylvania Law School made the case for reform of open records laws to protect academic freedom, arguing that state lawmakers nationwide should “ensure that [state FOIA laws] provide an academic teaching and research exemption that is sufficiently protective, while remaining specific enough to maintain accountability of university administrations.”
Back to the present controversy at KU. Before Hall filed his suit seeking injunctive relief, FIRE wrote to KU, asking it to recognize the serious threat to academic freedom presented by the student group’s request. In our letter, FIRE Senior Vice President Robert Shibley quoted from the Virginia Supreme Court’s opinion in the Mann case, writing:
KU need not break new ground in considering how to respond to broad open records requests. Earlier this year, the Supreme Court of Virginia considered an effort by an outside group to use a Virginia Freedom of Information Act request to acquire the correspondence of climate scientist Dr. Michael Mann, formerly of the University of Virginia (UVA). The court approvingly quoted at length the affidavit of UVA Vice President and Provost John Simon, who stated:
If U.S. scientists at public institutions lose the ability to protect their communications with faculty at other institutions, their ability to collaborate will be gravely harmed. The result will be a loss of scientific and creative opportunities for faculty at institutions in states which have not established protections under state FOIAs for such communications….
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….
Scientists at private institutions such as Duke, where I previously worked, that are not subject to state freedom of information statutes, will not feel that it is possible to continue collaborations with scientists at public institutions if doing [s]o means that every email or other written communication discussing data, preliminary results, drafts of papers, review of grant proposals, or other related activities is subject to public release under a state FOIA in contravention of scholarly norms and expectations of privacy and confidentiality….
Compelled disclosure [in this case] will also impair recruitment and retention of faculty….
I can state unequivocally that recruitment of faculty to an institution like the University of Virginia will be deeply harmed if such faculty must fear that their unpublished communications with the scientific collaborators and scholarly colleagues are subject to involuntary public disclosure. We will also lose key faculty to recruitments from other institutions – such as Duke, if their continued work at University of Virginia will render their communications involuntarily public.
Am. Tradition Inst. v. Rector & Visitors of the Univ. of Va., 287 Va. 330, 343 (Va. 2014).
When making its determination of which records should be turned over in response to the request by Students for a Sustainable Future, KU would be well advised to keep Vice President Simon’s concerns in mind, as they bear directly on the decisions KU must now make.
These concerns must now be considered by the judge. FIRE will be watching to see how they are answered.