Researchers at a number of state universities have found themselves in a battle between academic freedom and the public’s right to know.
In most states, faculty members at public institutions are state employees, and their records—both paper and electronic—are subject to state Freedom of Information Act (FOIA) laws.
While open records laws are critical for public accountability, some argue that excessive disclosure can silence speech and hinder collaboration among scientists. Opponents with partisan interests could file requests as part of efforts to misconstrue information and use it to fit their own agendas.
One high-profile example involved a group of global warming skeptics who sought thousands of emails from former University of Virginia professor and climatologist Michael Mann. In spring 2014, the Virginia Supreme Court ruled that unpublished research by university scientists is exempt from the state’s Freedom of Information Act.
More recently, a University of Kansas student group filed a FOIA request to investigate a decade’s worth of emails between a university lecturer and Charles and David Koch, financial backers of conservative causes who fund the state employee’s research.
These and other cases have raised questions about inconsistencies in state open records laws. George Washington University Law School Professor Alan Morrison argues that it is time to re-examine the line between a researcher’s publicly disclosable and private work.
“These laws were not written with emails or universities in mind,” said Mr. Morrison, the Lerner Family Associate Dean for Public Interest and Public Service. “No one knows what all the rules are, which documents are covered and which ones aren’t.”
This week, Mr. Morrison will discuss the tension between academic freedom and open records laws at the 2015 American Association for the Advancement of Science (AAAS) conference in San Jose, Calif. Journalists and scientists, including Dr. Mann, now a faculty member at Pennsylvania State University, will join Mr. Morrison on a panel at the conference. Mr. Morrison focused on state FOIA laws while director of Public Citizen Litigation, which he co-founded with Ralph Nader.
The Problem
Most state open records laws give any person the right to obtain access to state-employee records, except if the records are protected by the state’s exemptions.
Part of the problem with electronic communication, Mr. Morrison said, is that it is often unclear which emails should be records of the state university and which are not.
“UVA, for example, makes it clear that faculty have three responsibilities: teaching, research and service to the community,” he said. “Most of that is considered ‘on duty’ time, so therefore it is entirely appropriate that be captured as university records.”
Researchers, in particular, are often close friends with their colleagues, and the line between “public and private” can be blurred, said Houston Miller, a GW chemistry professor who studies the effects of climate change.
“I have collaborations with researchers around the world. And when we do send emails back and forth, some of it may be about science, but a lot of it may not be about science—our jobs are our lives,” Dr. Miller said. “Does the public have a right to see all of our private conversations?”
Faculty members may exchange thousands of emails. And if an institution received a FOIA request to turn over the emails, it would be up to the employee to sift through those messages in order to determine which ones were relevant and which were not. It’s a time consuming process, and one not many researchers would be happy to undertake.
“My colleagues and I are just trying to go as fast as we can, and I would be upset if something was to slow us down,” Dr. Miller said.
There is also little agreement among states about which university records should be subject to release to the public. In Delaware, universities are completely exempt from state open records laws, and four universities in Pennsylvania are considered “state-related,” so they also are exempt.
Faculty at private universities, like GW, also could face unexpected consequences if they communicate with researchers at state universities via email, Mr. Morrison said.
“If anyone thinks they can avoid this law because they are at GW, they are probably mistaken,” he said. “Any communication you have is potentially subject.”
Still, Dr. Miller said he is not particularly worried about FOIA requests, and he doesn’t think open records laws put his academic freedom in jeopardy.
“What have I got to hide?” he said “We want the public to know about our work.”
George Washington University Law School Professor Alan Morrison argues that it is time to re-examine the line between a researcher’s publicly disclosable and private work. (Rob Stewart/GW Today)
The Solution
While Mr. Morrison believes that all state open record laws should probably be revised, he knows that the likelihood of that is slim. State legislators “have little concept about what scientists do and what is reasonable,” he said.
A new approach Mr. Morrison is advocating is to put decisions about public disclosure in the hands of large federal granting agencies, like the National Science Foundation and the National Institutes of Health.
He proposes that, before granting research funds to an institution, the federal agency set standards on what must be disclosed when a grantee publishes the results of a research project. Perhaps, he said, the federal agency should include a prohibition on the grantee making additional disclosures over the objection of the researcher.
“Entities like the NSF and NIH are clearly in the position to know what kinds of things are relevant for science,” he said. “So they’re in a good position to strike a balance.”
Ultimately, Mr. Morrison advises faculty to be aware of the problem and to be smart—not fearful—about communication.
“All of this is my way of telling people that they need to start paying attention,” Mr. Morrison said. “Sometimes you have to think about what you’re putting in emails.”