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« Education Law Association Now Accepting Proposals for 2012 Annual Conference in Hilton Head | Main | Education Law Association Conference Take 2 »
Sunday
Nov202011

State Open Records Laws and Access to Faculty Communications

For a symposium at this past week’s annual conference for the Association for the Study of Higher Education (ASHE), Karen Miksch, Jeff Sun, and I prepared a presentation on state open records laws and requests for information and documents related to faculty work, including in relation to research.  While Jeff was unable to join us in Charlotte, he was integral in designing the session.  I thought that Karen did a really good job of providing an overview of issues related to state “sunshine” laws.  Many participants were surprised to learn things such as the fact that when someone uses a personal email account or smartphone to send a message then the communication isn't automatically exempt from an open records law. Karen also explained how the intent behind an information request also often has no bearing on an institution's responsibility to provide information. 

A key point that Karen discussed was that individuals should become aware of the legal standards in their particular states and also with the policies at their home institutions or organizations (e.g., is there a personal use exemption for email accounts).  A source that we shared during the session is the State Open Government Guide by the Reporters Committee for Freedom of the Press.  The Guide, which has an online component, is a really useful resource and can be used to examine standards in specific states and to make comparisons among states.

The idea for the symposium came from events involving attempts in several states (e.g., Wisconsin and Michigan) to engage in broad open records requests related to faculty work.  During the presentation, I discussed efforts in Virginia by the state’s attorney general and by the American Tradition Institute (ATI) to force the University of Virginia to release records and documents related to the work of climate scientist Michael Mann, who was employed at UVA before taking a position at Penn State.  I previously wrote about the attorney general’s records request on the Edjurist.  In discussing the events involving UVA, I commented on how the university appeared ready to comply broadly with the requests in both instances before deciding to take a more forceful legal stance.  In the context of litigation involving ATI, the court recently allowed Mann to intervene in the case. 

I’ve found the incident at UVA intriguing because it brings to the fore the issue of whether First Amendment rights related to academic freedom attach to the individual scholar or accrue only at the institutional level (see, e.g., Urofsky v. Gilmore).  In the ATI open records litigation, Mann has argued an academic freedom right to prohibit disclosure of at least some of the records.  To me, the case highlights the issue that if constitutional academic freedom protections only can be asserted by institutions, then problems may arise when an institution isn't particularly interested in seeking to respond to academic freedom concerns involving an individual faculty member.

Here is a pdf document with the slides from the presentation (and you don't even have to make an open records request).

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