In November, the AAUP issued a draft report on Academic Freedom and Electronic Communications. With the January 10 deadline for comments approaching, I have sent the following.

Dear Dr. Nichols,

I thank you and the subcommittee for the recent draft report on Academic Freedom and Electronic Communications. This is a helpful report on an important topic.

I am also grateful for the chance to comment on the draft report, and I would like to offer some views on the section on “FOIA and Electronic Communications.”

While referring to “several recent instances” of FOIA requests for faculty communications, the section now discusses only two: those concerning e-mail sent to and by Professors Mann and Cronon. These are certainly important cases that deserve mention in the report. However, they are not fully representative of the problem, in that both the University of Virginia and the University of Wisconsin-Madison successfully withheld some of the requested materials.

Such has not been the case regarding requests for materials concerning work by Professor Mark Regnerus of the University of Texas at Austin. Skeptics of the work sought both Regnerus’s communications (using Texas’s law) and those of the editor of the journal where Regnerus published, a faculty member at the University of Central Florida. Both universities sought to restrict the release of documents, but their efforts were rejected, respectively, by the Texas attorney general and by a Florida court. Thus, whereas public-university faculty in some states may enjoy some protection, faculty in Texas, Florida, and many other states may need to expect to have their most sensitive correspondence, including anonymous peer review, made public.

[See “Happy Goldfish Bowl to You, Professor” and “New York Times Reads Professors’ E-Mail.”]

I suggest that the AAUP report be amended to take note of this diversity. A recent law journal article by Ryan Fairchild offers a helpful comparison of state laws, as well as suggestions for provisions in state laws that can balance the interests of scholars and the public. I suggest that this article be cited in the report for the benefit of AAUP members. [Ryan C. Fairchild. “Giving Away the Playbook: How North Carolina’s Public Records Law Can Be Used to Harass, Intimidate, and Spy.” North Carolina Law Review 91 (2013): 2117–2178.]

I would also suggest that the draft report’s recommendation (“When such requests are made, faculty members should seek the advice of legal counsel or of the AAUP or ACLU”) is inadequate, even dangerous. By the time a request comes in, it is too late for a faculty member to take the most important steps to protect sensitive information.

The first of these is to segregate, as best as possible, one’s personal and professional correspondence, so that a FOIA request results only in a search of the latter. Better still, faculty members may wish to segregate their professonal correspondence that concerns university business from other professional correspondence, such as work for scholarly journals and associations. Knowing where to draw the line is difficult, and it is not clear that courts will recognize this distinction, but it may prove helpful down the road.

Second, given the uncertainties surrounding state FOIA laws, all public university faculty–and their correspondents–should consider the possibility that every e-mail they send and receive may someday become public. Public employees in other sectors have learned to choose their words carefully and leave the most sensitive discussions to oral communication. While such a strategy will necessarily inhibit the free exchange of ideas, public-university professors may need to do the same.

Sincerely,

Zachary Schrag