Growing Demands for Public Records

How Should Boards Respond?

By Rachel Levinson-Waldman and Robert M. O'Neil    //    Volume 20,  Number 1   //    January/February 2012

How often have you heard an exasperated trustee ask of an 11th-hour demand for public records, based on Freedom of Information laws: “Do we have to back up the truck and turn over all this stuff just because some gadfly or muckraker asked for it?” For boards at public colleges and universities, the short answer is, more often than you might expect, “yes” or at least a “probably”— and also more likely on a very short timeline.

Meanwhile, lest independent boards assume they are entirely free of such concerns, several recent court cases portend the direct application of public-records laws to private institutions, as well. In an era of demands for greater accountability in higher education, an increasingly polarized political environment, and scandals such as that at Penn State, access to information is becoming everyone’s business, affecting public and independent institutions alike.

Although FOIA demands are often annoying or burdensome, and occasionally downright disruptive, colleges and universities ought never to view themselves as being above scrutiny. Greater transparency is a core value of academic governance, as much for independent as for public boards, albeit subject to different expectations.

A series of recent events has sparked interest in this hitherto somewhat arcane subject. First, a conservative environmental think tank, the American Tradition Institute (AT I), early in 2011 submitted a Freedom of Information Act (FOIA) demand to the University of Virginia for a wide array of documents related to a former professor, Michael Mann. This professor, who now teaches at Penn State, is known for developing the “hockey stick” model of global warming, which indicates that the earth’s temperature has increased substantially during the past century. The demands were broad, requesting, among other things, every e-mail message sent to or from Mann over a span of some years.

After an initial standoff, the university and AT I reached an agreement to share the materials, some under protective order. Several months later, the university requested an opportunity to revisit the agreement. OnNovember 3, 2011, a Virginia state judge not only ruled in its favor, but also allowed Mann to intervene in the lawsuit to assert independently his own legal interests.

Several months later, William Cronon, a history professor at the University of Wisconsin-Madison (and president-elect of the American Historical Association), attracted the attention of the Wisconsin Republican Party. In mid-March, Cronon posted an entry on his blog identifying the American Legislative Exchange Council (ALEC) as a primary architect of a wave of conservative state-level legislation. Two days later, the state Republican Party sent the university a FOIA request asking for e-mails to or from Cronon that referenced terms including “union,” “Republican,” “Scott Walker” (the governor), “recall,” and “rally,” along with the names of the Wisconsin speaker of the assembly, the state senate majority leader, and eight state politicians who had become the focus of recall efforts. The university’s chancellor, Carolyn A. (“Biddy”) Martin, who has since become president of Amherst College, initially identified several categories of materials that she refused to produce, including “private e-mail exchanges among scholars that fall within the orbit of academic freedom.”

The university invoked, in respect to one of the nation’s toughest FOIA laws, not a specific exemption, which would almost certainly have foundered. Rather, it relied upon the institution’s commitment to academic freedom and free inquiry. Meanwhile, Cronon’s case was enhanced by his steadfast commitment to keeping his university e-mail account free of political communications. As a result, the university indicated that Cronon had not used his e-mail for any improper political purposes and declined to produce e-mails falling within a number of specified categories, including “intellectual communications among scholars.” The Republican Party recently announced it did not plan to appeal the response.

About the same time, the Mackinac Center for Public Policy, a think tank in Michigan, served a batch of FOIA demands on the labor-studies departments at the University of Michigan, Michigan State University, and Wayne State University, requesting e-mails including the terms “Scott Walker,” “Wisconsin,” or “Madison,” among others. The premise of the request was apparently the prevalence of pro-labor materials on the Web sites of the three labor-studies centers—suggesting that faculty members at those centers may have unlawfully used institutional resources for partisan political purposes. Wayne State subsequently removed some of the resources from the Web site and produced 32 e-mails; the University of Michigan produced four e-mails; and the Mackinac Center declined to pay the approximately $5,600 that Michigan State quoted as the price tag to produce its documents. The center has indicated that it may file in court to compel the universities to produce additional materials.

Most recently—in what is now the most visible case of all—public-record issues have been spawned by the sexual abuse accusations surrounding Penn State’s football program. Pennsylvania has historically had one of the nation’s most restrictive open-records laws. State campaign-finance irregularities inspired in 2008 a major revision of the Commonwealth’s Right-to-Know laws, creating for most Pennsylvania campuses far broader access. But Penn State and several other quasi-public universities have remained almost wholly exempt from the public records law. In the wake of Coach Joe Paterno’s and President Graham Spanier’s ouster, many Pennsylvanians have pressed for equality of access among the state’s major public campuses.

Relying on FOIA requests to obtain what litigation will not yield isn’t entirely novel. In the 1990s, Georgia Medical College professor Paul Fischer, who conducted research on children’s recognition of “Joe Camel” cigarette ads, was subpoenaed in litigation by R.J. Reynolds Tobacco Company. After Fischer successfully moved to quash the subpoena, the same precise materials were sought under Georgia’s open-records law. Without any effort to litigate or contest the issue, the medical college’s lawyers voluntarily surrendered the subject documents. Fischer soon left the medical college and went into private practice.

Although the number of publicized requests for scholarly information remains quite modest—as distinct from more regular requests for personal data and other similar information—the prospect of proliferation seems likely. In 2003, a U.S. Congressman attempted to dictate, via legislative amendment, which grants would be supported by the National Institutes of Health (NIH). Although his effort failed, more than 200 NIH funded grants were internally reviewed. Joanna Kempner, a sociology professor and health-policy scholar at Rutgers University, interviewed 30 of the 162 principal investigators involved and then sent a survey to the entire group, 82 of whom responded. Over half of those interviewed or surveyed said they had altered their research in some respects after their grants were politically targeted. A quarter of respondents reported that they had eliminated “entire topics from their research agendas.” Seventy percent of the investigators agreed that the political environment at the time created a “chilling effect” on the inquiry process. And, the potential for continued heightened scrutiny seems substantial.

Points Boards Should Keep in Mind

A few general insights might be helpful to boards as they consider this complex terrain. For starters, no two state Freedom of Information laws are likely to be the same. The variety among them is dazzling; unlike many legal sectors where uniform and model laws have invited a high degree of uniformity and consistency, it has been just the opposite in the FOIA sector.

Such statutes differ in detail; some contain hundreds of exceptions and exemptions, while others have only a handful. They also vary significantly in spirit and substance. States like Florida are famous for lauding “government in the sunshine,” while those at the more restrictive end of the spectrum may only grudgingly open the files or doors.

Second, while every state now has on its books some legal mandate for public records and meetings, such requirements are of relatively recent origin in most states—creatures of state legislation designed to make information more accessible to citizens, the news media and others. In earlier times, lawmakers and state officials often enjoyed broad if not complete immunity from probes of the type that are now standard. We should also note that the First Amendment does not compel the opening of doors to public meetings or the transfer of any documents. The Supreme Court (to the surprise of most free press advocates) has repeatedly disclaimed that “the First Amendment is a freedom of information law.” The fact that every state has enacted such laws reflects the realities of politics and the value of transparency rather than any constitutional imperative.

Third, even experts are often confused or misled by the striking difference between FOIA demands for documents and other, more flexible, types of requests for government records. Unlike subpoenas or discovery motions filed in a lawsuit— which are often subject to objections and conditions, as well as extensive balancing between contending interests—public records demands are usually unequivocal and categorical. Moreover, the timing of such inquiries differs sharply; usually production of subject documents under a FOIA request must occur within a matter of days, however burdensome the request may be, unless a longer response period is negotiated.

Fourth, to a far greater degree than subpoenas or discovery motions, the immediate effect of a broad-based FOIA demand may be disruptive, even disabling, for the targeted research team and investigator. All productive inquiry may need to be suspended for months while data are produced, if the statute permits (or the target requests and receives) an extended response period.

Fifth, motive or purpose is wholly irrelevant in regard to FOIA requests. Some states do ask on the form for a declared or identified purpose, but they should make clear that refusal to reveal such a rationale would not thwart the probe, save for the remote possibility of a manifestly bad faith inquiry or worse. Thus, the balancing of interests that is routine in subpoena or discovery disputes is rarely considered in a FOIA proceeding.

Yet FOIA critics should note that most such laws do contain exceptions or exemptions that—while far from uniform even in their existence, much less in specific terms—may mitigate the rigors of sweeping demands for public records. Some include safeguards for scientific research and the amassing of data. For instance, New Jersey exempts “scholarly records” from the coverage of its FOIA statute, while Ohio excludes “intellectual property records,” which it defines as records produced or collected by faculty members and other employees of state universities “in the conduct of or as a result of study or research on an educational, commercial, scientific, artistic, technical, or scholarly issue . . . that ha[ve] not been publicly released, published, or patented.” And Utah protects from disclosure records within the state system of higher education that have been “discovered, disclosed to, or received by or on behalf of faculty, staff, employees, or students of the institution,” including unpublished lecture notes, unpublished research-related notes, data, and other information; confidential information contained in research proposals; unpublished manuscripts; creative works in progress; and “scholarly correspondence.”

Looking Ahead

Three significant issues involving public-records laws remain ripe for further inquiry:

Records concerning presidential (and other) searches. Among the most notable, substantial, and nearly universal exemptions to FOIA laws are those that protect from public scrutiny or compelled disclosure what are termed “personnel matters.” The typical coverage of such an exemption would include routine employment disputes between an agency head and a subordinate, or practices like academic promotions and tenure actions, for which a privacy-based protection would usually be warranted.

On this issue, however, as on so many others, actual practice varies widely. Florida, long the champion of “government in the sunshine,” early insisted that names and curricula vitae of all candidates for public college and university presidencies must be publicly available—indeed announced. New York and other states have followed suit, despite much concern among governing boards, search firms, and of course candidates—most of whom would resist such disclosure and, in many cases, simply withdraw if publicity were inescapable.

In fact, the situation regarding public records can differ significantly within the same state. At the University of California, the state’s nearly unique constitution confers on the board of regents an exceptional degree of legal protection. Even the state’s highest court has periodically shielded the university against legislative intrusion of a type that could be freely imposed in most other states. Meanwhile, candidates for presidencies within the non-constitutional California State System (CSU) have been routinely required to spend a day or two visiting campuses under news media and community scrutiny, with names and curriculum vitae publicly released.

Late last September, CSU Chancellor Charles Reed announced in a major policy change that candidates for campus presidencies would no longer be publicly announced or regularly exposed to extensive campus and news-media scrutiny. That change was made in deference to several potential presidential candidates who balked at being publicly scrutinized without a guarantee of anonymity. He also observed that the CSU System had at that time an unprecedented number of top-level vacancies, which further exacerbated the situation and counseled privacy. Although the system’s academic senate unanimously passed a resolution raising “serious questions about transparency,” the new accommodation appears to have strong support among the Cal State trustees.

Records of donations to university-related foundations. Here again, practice varies widely from those foundations that fully protect donor records from public scrutiny to those that open the doors to such information. In the mid- 2000s, the issue was joined in several key states. The University of Iowa Foundation took on the Des Moines Register in a quest to keep confidential such donor records and similarly sensitive financial data. Foundation officials insisted that absent such confidentiality, donors would be less likely to make substantial gifts, or they would skew the specific university programs to which they devoted their generosity.

Moreover, the university’s foundation director remarked recently that such entrée to public university records “can certainly put us at a competitive disadvantage, because now any nonprofit has easy access to our donors.” The foundations themselves have also faced daunting challenges as a result of new demands for openness and scrutiny.

Records concerning independent institutions. Until now, many people have proceeded on the incomplete, if not naïve, assumption that freedom of information is the exclusive concern of those in publicly supported institutions. Yet, in a most unusual recent court case, a federal judge ordered Brown University to surrender fundraising documents that lawyers sought in a case involving a former student who claimed he had been falsely accused of rape and pressured to leave the institution. The former student was suspended five years ago following “sexual misconduct” charges and agreed to leave the university permanently, but he later claimed to be a victim of duress. The student then sued Brown, the student who accused him, and her father (a wealthy Brown donor and alumnus), contending that the father had used his clout to influence the handling of the allegations. Brown objected to the order to release the documents involving the father, insisting that he should produce them.

Thus, while ordinarily such information could hardly be classified as “public records” for FOIA purposes at a private university like Brown, we appear now to be facing a new type of intervention. As Peter Lake, the director of the Center for Higher Education Law and Policy at the Stetson University College of Law, observed in the Chronicle of Higher Education (October 11, 2011), independent institutions should “brace for similar requests for fundraising and other confidential information.”

Clearly, the public-record landscape is rapidly changing, and in ways that framers of FOIA laws—not to mention their champions and their detractors—could hardly have imagined. The lessons and implications of such changes are vital for boards and their members. Both in public and independent institutions, the presumption ought always to favor transparency over recalcitrance.

Boards should clarify their own procedures for responding to FOIA and related demands— including circumstances under which boards would challenge FOIA requests where appropriate. Boards should be especially ready to provide to the news media current information about the status of such inquiries and their outcome.

And, as a reminder, although the detailed requirements of open-records laws seldom apply directly to trustees of independent institutions, conscientious boards should nonetheless seek an optimal level of transparency. Simply as a measure of their accountability, independent boards should make their proceedings maximally accessible and available to those on and off campus to whom their deliberations are of interest.

A greater degree of uniformity and consistency regarding public records seems unlikely to occur across the nation, so predicting new and portentous developments may prove even more difficult than it has ever been in the past. Thus, most important, trustees and those who advise them regarding such matters need to be as fully informed as possible about potentially dramatic alterations of the legal terrain that may profoundly affect not only public boards but also many independent boards as well.

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