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Settlement in University of Kansas Open Records Case Suggests Way Forward

By September 10, 2015

Last October, FIRE wrote the University of Kansas (KU) expressing concern about the threat to academic freedom posed by an open records request filed with the university by a student group seeking a wide range of information related to the work of lecturer Art Hall.

To prevent the university from complying with the request—which focused in significant part on Hall’s relationship to Charles and David Koch, Koch Industries, and related foundations—Hall filed suit in state court in December. A judge quickly imposed a temporary restraining order preventing the university from fully satisfying the group’s request while the court determined which documents might be exempted under state law. (Some documents had already been released.)

Late last month, KU announced it had reached a settlement with Hall and the president of the student group to end the lawsuit. Sara Shepherd of the Lawrence Journal-World reported:

Instead of going to trial, the case of Kansas University School of Business teacher Art Hall v. KU is being settled out of court.

As part of the agreement — between three parties: KU, Hall and student Schuyler Kraus — KU released a limited number of the documents it had been withholding to Kraus, president of a student group that filed a Kansas Open Records Act Request last year and paid $1,800 for KU to fulfill it.

KU publicly shared those newly released documents with a news release announcing the settlement Thursday. They include a KU Endowment funding agreement for the creation of KU’s Center for Applied Economics, plus correspondence between Hall and representatives of the Charles G. Koch Charitable Foundation discussing the use of Center funds provided by the Foundation.

The limited release negotiated by the settlement appears to represent a common-sense compromise that balances the competing public interests of transparency and academic freedom. As I noted at length here on The Torch last fall, and again this spring, partisans on both sides of the ideological divide have demonstrated a troubling willingness in recent years to use open records laws to conduct politically motivated fishing expeditions against faculty, looking for “gotcha” material that can be exploited for political ends. If left unchecked, these kinds of requests have significant potential to chill academic inquiry, debate, and research, as courts have noted. They might also endanger proprietary research or present a competitive disadvantage, as a state court in Virginia observed last year:

In the context of the higher education research exclusion, competitive disadvantage 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.

Courts, legislatures, and colleges could simultaneously protect academic freedom and promote transparency by drawing a line between records related to scholarship and other academic work and communications, broadly construed, and records strictly concerning the administration of grants or other funding for research, narrowly construed. By granting academic materials a very wide berth, scholars remain free to discuss and debate the wide world of ideas—even ideas that some or even many find politically objectionable, as academic freedom requires. And by allowing access to administrative documents concerning funding, taxpayers may monitor institutional decisions about receiving and spending money.

In order to protect academic freedom, however, only documents that solely concern funding should be made responsive to open records requests directed at faculty. Grant applications, for example, should be exempt (or at least redactable). While grant applications and related materials are tied to eventual funding decisions, they include proposals detailing prepublication scholarship and research—information that, if disclosed, could chill academic inquiry or reveal proprietary research. Turning over these and similar records would redound to the intellectual (and possibly economic) detriment of a scholar, his or her institution, and, ultimately, the general public.

Open records laws reflect our society’s commitment to transparency, responsive government, and an informed citizenry. As President Lyndon Johnson noted when signing the federal Freedom of Information Act into law on July 4, 1966, the legislation “springs from one of our most essential principles: a democracy works best when the people have all the information that the security of the nation will permit.” But, as President Johnson noted immediately thereafter, “the welfare of the nation or the rights of individuals may require that some documents not be made available.” And protecting the academic freedom of public university faculty is vital to both the national welfare and individual rights, as the Supreme Court of the United States recognized in the landmark case of 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.

Protecting academic freedom by exempting scholarship, academic work, and related communications from open records laws does not mean that the work of our public faculty is beyond scrutiny. Rather, the exemption recognizes that the scientific method—i.e., constant review and testing by other scholars—is far preferable to politics when it comes to producing, verifying, and critiquing valuable academic work. As the American Association of University Professors wrote in an amicus curiae brief filed last September with an Arizona state court in the case of Energy & Environment Legal Institute v. Arizona Board of Regents:  

Progress in science rests upon the robust give-and-take in the scientific literature, a rigorous process of testing the validity of propositions, data, and conclusions. This peer review—not the forced public disclosure of unpublished data and research or private communications among academics and researchers—is what ensures the honesty and quality of academic scholarship and is central to the professional norms and ethics of the university.

Jonathan Rauch identifies this process as “liberal science”—“our decentralized, criticism-based global system for developing knowledge.” It cannot function properly if public university faculty are forced to turn over notes, communications, and research to politicians and partisan interests instead of their peers. Open records laws should be reformed and interpreted to ensure that our nation’s scholars “remain free to inquire, to study and to evaluate, to gain new maturity and understanding,” as the Supreme Court envisioned.

Schools: University of Kansas