Over the past three years, various activists have filed public records or freedom of information requests for the e-mail of professors at public universities. In March 2011, the Republican Party of Wisconsin requested some of the e-mails of Professor William Cronon of the University of Wisconsin. Shortly thereafter, the Mackinac Center for Public Policy asked for similar e-mails sent among faculty and staff at public universities in Michigan. Then the American Tradition Institute sought the e-mail correspondence of Michael Mann, formerly of the University of Virginia.
At the time, the tactic was new, and experts speculated on the potential effects on academic freedom. However, those ideas remained largely speculative. The University of Wisconsin withheld messages sent to and from Cronon if they were “records related to professional organizations” or “intellectual communications among scholars.” And a Virginia court held that Mann’s e-mails were exempt from disclosure based on Virginia’s exclusion of “Data, records or information of a proprietary nature produced or collected by or for faculty or staff of public institutions of higher education…in the conduct of or as a result of study or research on medical, scientific, technical or scholarly issues.
These decisions limited the impact of the requests. But two more recent cases in states with less nuanced public records laws show how little privacy faculty at public universities may expect.
In June 2012, The American Independent sought documents relating to a study by Professor Mark Regnerus of the University of Texas. The university asserted that the documents were exempt from disclosure under section 51.914 of the Texas Education Code, which covers “technological and scientific information” developed by an institution that can be sold, traded, or licensed for a fee. Moreover, it asserted that the records contained information about third parties. The state attorney general’s office rejected these claims, and in February 2013 the university released the requested records. By April 2013, The American Independent was reporting on reading material that Regnerus received.
(And yes, I received the information about the Texas attorney general’s reasoning through a public records request.)
Now, a Florida court has ruled that the University of Central Florida must share the e-mail of Professor James Wright, editor of the journal that published Regnerus’s study. The court rejected the university’s claims that the e-mails are not university records. As it noted
Wright, of course, is paid by UCF. his work on the Journal utilizes UCF resources and facilities; he utilizes a UCF graduate student, who is paid with UCF funds and given office space at UCF. Many, if not all, of the e-mails are signed “Jim Wright, Department of Sociology, University of Central Florida.” The Court saw none which identified Wright as Editor-in-Chief of the Journal. If there were any, the number is negligible.
The overlap between the Journal and UCF is wide; the connections between the two are many. Wright, himself, has acknowledged the necessity of professorial publication in the academic world, the use of the Journal to formalize, perpetuate and communicate knowledge and the not insignificant use of UCF resources in creating and promoting the Journal all of which redounds to Wright’s financial and professional benefit and the concomitant advancement of his department at UCF. While UCF never defined what it meant by its “business,” the Court concludes that term to be broad and flexible enough to include Wright’s work on the Journal and extends well beyond its classrooms, buildings and campus gates.
Thus, the court reasons, the Wright’s correspondence as editor of the journal constitute public records. And since Florida’s public records laws lack an exemption for scientific data comparable to Virginia’s, the e-mails must be released.
I have trouble understanding the implications of this decision. Is the court saying that if Wright had changed his signature line for the e-mails he sent in his capacity as journal editor, they would not be public records? Or that he would have needed to decline university resources? Or that editing a journal is so connected to Wright’s role as professor that no amount of distancing could keep the correspondence private?
To be sure, public university faculty have public responsibilities, and Wisconsin and Virginia have worked to balance the public’s right to hold them accountable with professors’ need to have some communication that will not become instantly transparent. But for now, faculty at public universities in Texas, Florida, and other states without scholarly exemption from public records laws need to be trained on how to work in a fish bowl. Apparently the titles of books they request from the library, the peer review comments they offer and solicit, and the half-formed ideas they share with colleagues are all matters for public scrutiny.
And even as I write, a think tank has requested “six weeks’ worth of [University of North Carolina-Chapel Hill Professor Gene] Nichol’s email correspondence, his calendar entries, phone logs, text messages and a list of electronic devices issued to Nichol by the university.”