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A recent series of open records requests for the email messages of public university professors has triggered a debate about…

A recent series of open records requests for the email messages of public university professors has triggered a debate about the extent to which the right to academic freedom can coexist with the public’s right to access government records.

The debate is already having an effect on some professors who say they are more “cautious” about the way they communicate.

“A lot more of your tax dollars are going to the idle time that scientists are now spending writing and rewriting emails — or not using email — and instead resorting to less efficient methods of communication,” said Michael Mann, director of the Earth System Science Center at Pennsylvania State University and the subject of a controversial open records request.

Mann and the University of Virginia — Mann’s former employer — are fighting a court battle to shield his email messages from what he describes as a “politically motivated fishing expedition” launched by the American Tradition Institute, an environmental think tank.

ATI denounces Mann’s climate work, particularly Mann’s “Hockey Stick” graph depicting patterns of climate change for the past 1,000 years, which shows drastic increases in global temperatures in the 20th century.

The controversy surrounding ATI’s request for Mann’s email messages further gained publicity as four other universities — the University of Wisconsin-Madison, Wayne State University, the University of Michigan, and Michigan State University — subsequently received open records requests for professors’ email messages from various organizations.

“Climategate” and efforts to obtain Mann’s email

In November 2009, hackers breached email servers at the University of East Anglia Hadley Climate Research Unit in the United Kingdom, seizing thousands of email messages and documents they thought supported their theory that scientists had altered research data to support a conclusion that humans were the main cause of global warming.

The hackers posted the materials online, including an email message from Phil Jones, director of the climate research unit at the University of East Anglia that said, “I’ve just completed Mike’s Nature [the science journal] trick.”

While the Union of Concerned Scientists argued on its website that the word “trick” referred to scientific techniques and was not used literally, critics pointed to this email message as proof that scientists had manipulated data to conceal the decline of the earth’s temperatures, generating a storm of controversy that became known as “climategate.”

While Mann was eventually exonerated in investigations conducted by Pennsylvania State University and the National Science Foundation, the investigations into his records by Virginia officials and ATI continue.

In April 2010, Virginia attorney general Kenneth Cuccinelli unsuccessfully attempted to access Mann’s records by serving civil investigative demands, which operate as subpoenas, on the University of Virginia while investigating whether Mann had defrauded the state by using manipulated data to obtain research grants.

Cuccinelli sought “data, materials and communications” related to grants Mann had received, as well as written correspondence Mann exchanged with nearly 40 people.

The university successfully resisted release of the materials when it took the matter to court.

“The Court . . . understands the controversy regarding Dr. Mann’s work on the issue of global warming,” retired Albemarle County Circuit Court Judge Paul Peatross, who still presides over some cases, wrote. “However, it is not clear what he did that was misleading, false, or fraudulent in obtaining funds from the Commonwealth of Virginia.”

Cuccinelli appealed the court’s decision to the Virginia Supreme Court, which agreed in March to review the case. However, efforts to obtain Mann’s records continue via other channels.

In January, Virginia Delegate Bob Marshall and the Environmental Law Center of ATI repeated the attorney general’s request for the same email messages and grant-related information from the university under the Virginia Freedom of Information Act.

University of Virginia president Teresa Sullivan received letters from professors, organizations, and scientists worldwide, urging her to resist the release of Mann’s correspondence with his colleagues.

“It begins with attempts to attack the science,” warned Dr. Benjamin Santer, an atmospheric scientist at Lawrence Livermore National Laboratory and one of the 39 people whose email messages ATI sought in its request. “If the science is unshakable, the next step is to attack the integrity of the scientific messengers . . . Political pressure is applied. Legal harassment begins. An entire community receives the clear and chilling message: ‘You could be next.’”

After unsuccessful negotiations with the university, ATI obtained an order from Circuit Court of Prince William County, Va., which instructed the school to supply the requested records within 90 days, but permitting the university to “designate as Exempt Information any requested public record.”

David Schnare, director of the Environmental Law Center at ATI, said the university has released approximately one quarter of 12,000 email messages to ATI, allegedly withholding the remainder because they fall within an exemption in the state FOIA for “[d]ata, records or information of a proprietary nature produced or collected by or for faculty or staff of public institutions of higher education . . . where such data, records or information has not been publicly released, published, copyrighted or patented.”

Inconsistencies in state open record laws

Currently, there is little consensus among states in their open records laws about which public university records should be subject to release.

As with all public employees, records of public university professors are generally subject to disclosure. This does not mean all email messages are open to the public, as federal and state laws allow universities to withhold certain types of information contained in professors’ email messages.

For example, similar to the Virginia FOIA exemption discussed above, some states’ open records laws specifically permit universities to withhold – at least temporarily – scholarly materials from disclosure in the interest of preserving the academic or proprietary value of works in progress.

Michigan law exempts “[o]riginal works of authorship,” “[t]rade secrets or other proprietary information,” and “[i]ntellectual property” owned by public universities until they have had a “reasonable opportunity” to publish the information. Open records laws in other states, including those in Alaska, Arizona, Florida, and Mississippi, contain similar provisions.

Other laws, both federal and state, as well as court decisions interpreting state open record laws, may prevent the disclosure of the contents of professors’ records.

For example, the University of Wisconsin-Madison recently relied on the Federal Family Educational Rights and Privacy Act in refusing to produce student-related records contained in a professor’s email messages pursuant to an open records request. Additionally, while records of the professor’s involvement with professional organizations and his “intellectual communications” with other scholars were not specifically exempt under other laws, the university applied a state common law balancing test — asking whether the public interest in disclosure outweighed public interest in nondisclosure — and decided to withhold those records.

As state laws vary on which university records will be protected from public release, some have suggested a more uniform approach that provides academics’ communications with a greater shield from disclosure.

Exemption for academics

Some professors argue that since email messages sought under open records laws are often used to score political points, producing documents responsive to such requests gives critics of their work political ammunition.

Also, Santer argues that releasing professors’ email messages could compromise the proprietary value of academics’ final products by revealing matters of intellectual property related to research grants, which “would bring down government-funded science as you know it.”

“I think that emails generated during the course of deliberation on a scientific article, as part of the deliberative process, should not be open to scrutiny by the entire world,” he said.

Schnare disagrees, saying there is only “one point in time when a researcher’s work should be absolutely protected.”

“That is while he is in the middle of the research and prior to his publishing his results,” said Schnare. However, after publication, Schnare said, disclosure of certain communications should be open to reveal the “blind alleys” of professors’ research.

However, not all public university professors agree.

Charles Davis, associate professor at the Missouri School of Journalism and former executive director of the National Freedom of Information Coalition, objects to those who say professors should be protected from open records requests because professors are a “special class of people.” He finds that argument to be inconsistent with the fact that open records laws make distinctions between areas of content, rather than by the identity of the email message senders.

“Unless you are in one of those really controversial areas like climate change,” said Davis, “or are some sort of sociologists that are very labor or anti-labor related, unless you’re really in there brass knuckle politicking it, I don’t think you can expect to have your emails looked at because they’re so incredibly boring. If you are engaging in real brass knuckle political work, that kind of scrutiny comes with the neighborhood.”

Schnare says what university faculty are “afraid of sharing, frankly, are embarrassing emails, the kinds of stuff you shouldn’t have written in the first place.”

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