See, This is the Kind of Stuff I Was Worried About…

WOW, was there an outbreak of FOIA fear-mongering today, thanks to the academic FOI stuff in Wisconsin and Michigan. Folks are overreacting just a wee bit out here. Calm, people, calm…

My reading pile began with this piece on The Huffington Post, in which a fellow who probably knows a great deal about law wrote this:

In recent years, however, that sunshine has begun to produce severe risk of sunburn. Broadly written state and federal “open records” laws have converted an instrument for ensuring transparency into a handy weapon to discredit political opponents, intimidate critics, and simply harass private citizens for no better reason than that they are government employees.

Really? First of all, that makes it sounds like we just make requests and get records, simple as that…broadly written FOI laws? Really? Broadly written to allow governments to close things, sure, but the author is arguing here that they are veritable fishing nets. A bit later:

In Wisconsin, for example, any public employee — teacher, cop, janitor, or food server — can be the subject of an open records request. No reason is required for an open records request, no justification or evidence to support suspicion of wrongdoing.

Again, the mind reels. So…isn’t this precisely, exactly what FOI laws should do — allow us to access the records of any governmental employee who merits scrutiny? This “I am just a police officer..I am but a lowly city planner…” meme has been used for ages to try to make FOI some sort of only-the-execs province. Problem with that? Well, yes. The mayors and police chiefs and school superintendents are not stupid, so they’ll just house the records with “non-subject” personnel. Come on!

“No reason is required for an open records request, no justification or evidence to support suspicion of wrongdoing,” the author writes, indignantly.

Huh? Of course there is no reason required! What? So I walk in to a county clerk’s office and the following occurs:

ME: Hi, I was wondering if I might see some property tax records…


ME: I am an interested citizen?

CLERK: No. I need a reason…

ME: Oh, OK. Well, I suspect that some powerful, well-connected elites in this town have property tax rates lower than mine.

CLERK: (Ignoring me, while dialing 911)….

It gets even better from here, folks, trust me. I’ve seen this many times before, typically from inside government offices: FOI Mania. The fervent, if delusional belief that openness surely shall spell doom if left to the diabolical requesters!

Then there was this one, entitled “The Freedom to Snoop,” by the otherwise rational Clarence Page, another victim of FOI Mania:

Why is the Mackinac Center interested in professors’ TV viewing habits? The center’s request doesn’t say. The right of the public to see public records is viewed as so fundamental under FOIA provisions that the filers don’t have to say why they want to see the files.

Well, Mr. Page, that’s because, um…well, it is so fundament

al that filers don’t have to say why they want to see the files. See the above discussion for more detail, including a docudrama between myself and fictitious clerk, but sheesh…

But wait, folks! There is more! The Washington Post devoted the collective brain power of its entire editorial board to this gem, “Using Open Records Law to Harass Scholars.”

This, people, is FOI Mania at its finest, a state-of-the-art discourse on the apocalyptic visions of openness run amock:

In a statement defending the action, the state party’s executive director, Mark Jefferson, decried the “concerted effort to intimidate someone from lawfully seeking information about their government.” But Mr. Jefferson’s statement ignores the important difference between an ordinary public official and a professor who happens to be paid by the state. The better argument was made by the American Historical Association. It noted that historians “vigorously support” open-records laws but that the law was being misused “to find a pretext for discrediting a scholar who has taken a public position. This inquiry will damage, rather than promote, public conversation. It will discourage other historians (and scholars in other disciplines) employed by public institutions from speaking out as citizen-scholars in their blogs, op-ed pieces, articles, books, and other writings.

So, again, if we like your FOI request, it’s a good one, and if it lacks a valid “reason,” we don’t? Is this really the standard the Washington Post wants to apply to FOI?

Not me. It’s a public record. I have a right to it. End of story.

If Professor Cronon, as everyone says, has done nothing beyond the purview of academic research and banter, guess what? There will be no FOI-driven documents worthy of use. If he was using his post at a taxpayer-funded institution to organize or electioneer, guess what? That’s newsworthy.

Already famously thin-skinned and disliked by huge swaths of the populace, must we academics now also demand privileges that no cop, or teacher, or fireman, can enjoy?




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