A Much More Supportive View of the Cronon FOI Response

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The New Yorker weighs in with a laudatory post about the University of Wisconsin-Madison’s response to the FOI request. As I wrote in an earlier post, I think the response created some novel arguments not reflected by the state’s existing exemptions. The question now is whether the requester is satisfied with the response and the documents produced by it.

 

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The UW-Madison Response: Absolutely Fascinating

Well, the UNiversity of Madison-Wisconsin complied with the request for a noted history professor’s e-mails — sort of, kind of.

Here is the Chancellor’s message to the campus:

And here is the official letter from counsel for the University of Wisconsin.

The money graf:

You should further note that the e-mails that we have reviewed contain absolutely no evidence of political motivation, contact from individuals outside normal academic channels or inappropriate conduct on the part of Professor Cronon.  The university finds his conduct, as evidenced in the e-mails, beyond reproach in every respect.  He has used his university e-mail account appropriately and legitimately.   He has not used his university e-mail account for any inappropriate political conduct.  In fact, none of the e-mails contained any reference whatsoever to any of the specific political figures that you identified (except Governor Scott Walker), nor do they in any way reference the proposed recall efforts.

But I also was quite interested in the following reason for partial denial of the request:

5. Intellectual communications among scholars.  Faculty members like Professor Cronon often use e-mail to develop and share their thoughts with one another.  The confidentiality of such discussions is vital to scholarship and to the mission of this university. Faculty members must be afforded privacy in these exchanges in order to pursue knowledge and develop lines of argument without fear of reprisal for controversial findings and without the premature disclosure of those ideas.  The consequence for our state of making such communications public will be the loss of the most talented and creative faculty who will choose to leave for universities that can guarantee them the privacy and confidentiality that is necessary in academia.  For these reasons, we have concluded that the public interest in intellectual communications among scholars as reflected in Professor Cronon’s e-mails is outweighed by other public interests favoring protection of such communications.

I just took a quick look at Wisconsin’s exemptions, and I am not seeing this one. This is one of those Show-Me moments that Dave and I always talk about: “Can you show me where in Wisconsin law it says this stuff is exempt?”

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So, What Gives When FOI Meets Academic Freedom? On FOI As A Partisan Tool….

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So, Professor Bill Cronon writes an Op-Ed for the New York Times about the several ways in which he believes that Scott Walker and the current leadership of the Republican Party in Wisconsin have departed not just from the longstanding culture of civility and good government in this state, but in fact from important traditions of their own party.

In his first-ever blog post — Professor Cronon is a strong believer in the concept of the citizen scholar, the notion that academics should  share and converse with the broader public to further the national debate — he published what he terms “a study guide” exploring the question “Who’s Really Behind Recent Republican Legislation in Wisconsin and Elsewhere?”

The post was the first I had ever heard of the American Legislative Exchange Council (ALEC), and I do not think I was alone: according to the professor, within two days, the blog had received over half a million hits, had been read by tens of thousands of people, had been linked by newspapers all over the United States, and had been visited by people from more than two dozen foreign countries.

So, two days after his post, the University of Wisconsin-Madison gets this FOI request:

From: Stephan Thompson
Sent: Thursday, March 17, 2011 2:37 PM
To: Dowling, John
Subject: Open Records Request

Dear Mr. Dowling,

Under Wisconsin open records law, we are requesting copies of the following items:

Copies of all emails into and out of Prof. William Cronon’s state email account from January 1, 2011 to present which reference any of the following terms: Republican, Scott Walker, recall, collective bargaining, AFSCME, WEAC, rally, union, Alberta Darling, Randy Hopper, Dan Kapanke, Rob Cowles, Scott Fitzgerald, Sheila Harsdorf, Luther Olsen, Glenn Grothman, Mary Lazich, Jeff Fitzgerald, Marty Beil, or Mary Bell.

We are making this request under Chapter 19.32 of the Wisconsin state statutes, through the Open Records law. Specifically, we would like to cite the following section of Wis. Stat. 19.32 (2) that defines a public record as “anything recorded or preserved that has been created or is being kept by the agency. This includes tapes, films, charts, photographs, computer printouts, etc.”

Thank you for your prompt attention, and please make us aware of any costs in advance of preparation of this request.

Sincerely,

Stephan Thompson

Republican Party of Wisconsin

OK. So here we are. First, let me state that this is a perfectly legitimate, legal request under Wisconsin law, one that should be complied with post haste. It’s FOI law at its essence, what is good for the goose is good for the gander, etc., etc.

That said, I find this request, and others like it made by groups of other political persuasions, deeply troubling in the university setting, because, unlike the mayor or the city councilperson, Professor Cronon enjoys a First Amendment right to some measure of academic freedom, the quite crystalline if constantly threatened notion that unless the nation’s professoriate can say what it wishes and thinks as it likes, all intellectual activity in the United States is threatened.

The AAUP puts it this way:

Freedom in research is fundamental to the advancement of truth. Academic freedom in its teaching aspect is fundamental for the protection of the rights of the teacher in teaching and of the student to freedom in learning. It carries with it duties correlative with rights.

Professor Cronon sees it this way when it comes to FOI requests:

When should FOIA and Wisconsin’s Open Records Law apply to universities?

Answer: When there is good reason to believe that wrongdoing has occurred.  When formal academic governance proceedings are making important decisions that the public has a right to know about.  When teachers engage in abusive relationships with their students.  When the documents being requested have to do with official university business. And so on.

When should we be more cautious about applying such laws to universities?

Answer: When FOIA is used to harass individual faculty members for asking awkward questions, researching unpopular topics, making uncomfortable arguments, or pursuing lines of inquiry that powerful people would prefer to suppress.  If that happens, FOIA and the Open Records Law can too easily become tools for silencing legitimate intellectual inquiries and voices of dissent—whether these emanate from the left or the right or (as in my case) the center. It is precisely this fear of intellectual inquiry being stifled by the abuse of state power that has long led scholars and scientists to cherish the phrase “academic freedom” as passionately as most Americans cherish such phrases as “free speech” and “the First Amendment.”

I fall somewhere to the undefined FOI side of the equation, perhaps not surprisingly to those who know me. Professor Cronon’s answer to “When should FOIA and Wisconsin’s Open Records Law apply to universities?” seems, to me, too narrowly answered. I certainly would not subject FOI to some probable cause test, where “there is good reason to believe that wrongdoing has occurred.” That’s not a filter I want to install in FOI law. Heck, I see people use FOI laws all the time to show government effectiveness, or even ineffectiveness, and those things fall short of “wrongdoing.” I doubt Professor Cronon, as harried as he must be right now, really thinks so, either.

His response to “When should we be more cautious about applying such laws to universities?” really shook my world this morning. For it is here that he really hit on something: the nexus between transparency (needed) and academic freedom (needed). I have not done any research on the topic, but will. In the meantime, I can only say that it raises absolutely fascinating issues, that I certainly don’t think that the request itself is any way beyond the scope of the law….

Finally, requests of this nature worry me, not for partisan reasons, but for structural ones. For FOI to function, it must, must, must remain a BIPARTISAN value, a shared belief in good governance. I’ve said this in speaking to Rotary Clubs and League of Women Voters and VFWs. I fear any political party using FOI as a blatantly partisan tool, all the while recognizing that people have, and will continue to, use it for just those reasons. That said, every such highly personal, partisan FOI request worries me, for I am constantly working with requesters who are after much more important things — system failure at the macro-level, versus partisanship at the individual level.

Whew! Sorry for the length, but this is really interesting stuff to think about.

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