Open Records Law No Match For University Lawyers

MacIver News Service | April 13, 2011

[Madison, Wisc..]The University of Wisconsin’s denial of information solicited through an open records request by the Republican Party of Wisconsin calls into question the Freedom of Information Act’s ability to provide transparency in state institutions.

RPW had requested emails sent and received by Professor William Cronon concerning union protests and recall election efforts. 

Professor Cronon gained a lot of attention during the month long protests in Madison with his blog criticizing various conservative groups.  He encouraged readers to investigate those groups and their possible ties to RPW and Republican lawmakers.  RPW, in turn, began investigating Cronon’s possible ties to union leaders and liberal groups and whether these activities were done on state time with taxpayer resources. The move prompted a furious response from Cronon and the University of Wisconsin.

John Dowling, UW Senior Legal Counsel, cited court cases, federal law and university policy to deny much of RPW’s open records request, including emails to students, to fellow scholars, and anything that pertained to areas outside of Dr. Cronon’s job responsibilities, which could be considered personal.

Dowling said emails between Cronon and his students were protected under the Family Educational Rights and Privacy Act.

However, the Department of Education first told the MacIver Institute that law only applies to information contained in a student’s official education record.  Later, the press office officially stated, “While many schools do have official or permanent files, FERPA doesn’t mention ‘official’ records or files.  Rather, the definition of ‘education records’ is broadly defined to mean those records that are directly related to a student and maintained by an educational agency or institution, or a party acting for the agency or institution.”

To read more about FERPA and open records requests, click here.

In the case of emails between Cronon and fellow scholars, Dowling concluded university policy trumps the state open records law. Biddy Martin, UW Chancellor, explained in a release “Academic freedom is the freedom to pursue knowledge and develop lines of argument without fear of reprisal for controversial findings and without the premature disclosure of those ideas.”

Dowling added, “We have concluded that the public interest in intellectual communications among scholars as reflected in Professor Cronon’s e-mails is outweighed by other public interests favoring protection of such communications.”

The Mackinac Center for Public Policy has encountered similar obstacles in its open records requests in Michigan.

“We had the exact same thing happen, where they are currently investigating this one particular professor who authored this study for possibility of plagiarism,” said Michael Van Beek, Director of Education Policy at Mackinac. “And so they cited it’s the university’s policy not to disclose information related to an ongoing university investigation.  Where again is a situation of university policy trumping state policy.”

Van Beek told the MacIver Institute sometimes it seems like universities go out of their way to be difficult.

“We asked for details about a particular study they did on school district consolidation and they redacted about 95 percent of the information from these emails.  And we know for a fact that some of the things in here are our own articles that we wrote that they were emailing to each other,” said Van Beek.

Back to RPW and University of Wisconsin, the UW adminstration also denied release of any email that could be considered “purely personal communications that do not relate to Professor Cronon’s employment as a faculty member of the official conduct of university business.”  Dowling cited the Wisconsin Supreme Court decision in Schill v. Wisconsin Rapids School District in 2010.

The Wisconsin Supreme Court ruled that personal emails from government employees were not subject to open records laws, even when those emails were written on state time using state computers and sent through state email accounts.

In the decison, Chief Justice Shirley Abrahamson wrote, “While government business is to be kept open, the contents of employees’ personal e-mails are not a part of government business.”

In that same decision, Abrahamson had also wrote, “If Wisconsin were not known as the Dairy State it could be known, and rightfully so, as the Sunshine State.  All branches of Wisconsin government have, over many years, kept a strong commitment to transparent government.”

An almost identical court case played out in Michigan in 2009, Howell Education Association v. Howell Board of Education.  The courts there also decided personal communications using public resources were protected from FOIAs.

“It was between union officials, who are also public school employees, but it was their correspondence between them about union business.  So they deemed that as not being official school business because it was union business, even though it was done on tax payer time and on tax payer funded computers and email systems,” said Van Beek.

Recently the Mackinac Center wanted to investigate a rumor the Michigan Education Association was organizing a statewide strike.

“So we asked for emails from a bunch of districts on that issue, and we were denied that based on this recent court case,” said Van Beek.   “So here we have an instance of the public not being able to get a sense for whether there’s illegal activity going on on taxpayer funded school computers and taxpayer time.  That’s an example of how it can be problematic and seriously abused.”

Because of these policies and legal precedence, it might never be known if Professor Cronon used tax-payer funded computers, email systems, and time to organize and coordinate political attacks against those with who he disagrees.

In the end, the Republican Party of Wisconsin received a two-inch stack of emails from Professor Cronon’s email account.  About an inch and a half of it consisted of two draft proposals for a new environmental science major.  The rest of the stack was most e-newsletters from a product vendor and statements from Chancellor Martin about the budget and budget repair bill.

The RPW declined to pursue the matter further.