For the past several weeks, substantial attention has been given to open records requests lodged in Wisconsin and Michigan that ask for the release of emails sent and received by public university professors pertaining to politically sensitive subjects. These controversies have raised the same questions about the relative value of transparency and academic freedom that emerged from Virginia Attorney General and University alumnus Ken Cuccinelli's issuance of a civil investigative demand seeking emails and other documents related to former Environmental Sciences Prof. Michael Mann's research while at the University.
Unnoticed throughout this debate, however, has been a request put forth in January by the American Tradition Institute that calls upon the University to release the same documents pursued by Cuccinelli. Despite this request's legal distinctions, University administrators should handle it with the same caution that they have exhibited when dealing with Cuccinelli's CID.
ATI's request derives its supposed legitimacy from the Virginia Freedom of Information Act, which grants taxpayers and private groups the right to obtain copies of certain government documents. ATI has asked the University to produce all "correspondence, messages or emails" between Mann and 40 specific individuals, as well as "all research assistants, secretaries or administrative staff with whom Dr. Mann worked while he was at the University of Virginia." In fact, the request goes a step further, asking for all "correspondence, messages or emails" that even reference those individuals, as well as "any and all documents, drafts, things or data that were generated as a result of any activities conducted pursuant to" grants funded with taxpayer money.
ATI has justified its request as a way of monitoring the use of taxpayer money, but there are a number of problems with its approach. First, the request is far too broad and is likely to ensnare correspondence involving students that is protected from public release by the Family Educational Rights and Privacy Act. Chris Horner, senior director of litigation for ATI, asserted in an email that such concerns amount to nothing more than "straw arguments" and that correspondence related to students is "quite unlikely to be captured by our request." Nevertheless, the University would need to undertake a massive review of its records to ensure that FERPA is not violated.
A more serious flaw with the request, however, arises from the fact that the FOIA law specifically exempts any "data, records or information of a proprietary nature produced or collected by or for faculty or staff of public institutions of higher education ... in the conduct of or as a result of study or research on medical, scientific, technical or scholarly issues, whether sponsored by the institution alone or in conjunction with a governmental body or a private concern, where such data, records or information has not been publicly released, published, copyrighted or patented."
Whereas "data" and "records" are clearly understood terms, the statute's definition of "information of a proprietary nature" is vague. Michael Halpern, the scientific integrity program manager at the Union of Concerned Scientists, said he felt it "should include any documents produced within a research context." If his definition is correct, then it would exempt from FOIA most of the emails that ATI is seeking.
The University's delay in answering ATI's request indicates that it is cognizant of these pitfalls and will not grant indiscriminate access to its records. Critics have charged that this represents a double standard because the University partially honored a similar FOIA request issued by the left-wing environmental group Greenpeace in 2010 seeking correspondence and other documents related to former Environmental Sciences Prof. Patrick Michaels, a climate change skeptic. In reality, though, thoroughly reviewing the documents sought by ATI and subsequently denying access to those deemed exempt from FOIA would be consistent with the University's response to Greenpeace. In its official timeline of FOIA requests related to climate change research, the University administration indicates that it furnished the organization with Michaels' resume and a list of grants, but refused to provide an "unfiltered" cache of emails because of potential conflicts with FERPA or other laws.
None of this is to say that ATI lacks the right to request information in accordance with FOIA, but merely that it should not expect unquestioning compliance from the University. If ATI wishes for the University to undertake a thorough internal review of the sought-after materials to determine which can be released legally, then it may request such action. If it does so, however, it should not expect that its most outlandish expectation - "a waiver of fees for this request" - will be met.
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