Abstract
Taxpayers have every right to see academic correspondence, says laywer
Credit: Mark Boardman
Quite rightly, the public has an interest in monitoring how its government operates, and especially how their government spends money. Public colleges and universities are considered part of the state and rely on taxpayer funding. Information about how efficient a publicly funded university is, where it spends its money and what it pays people to do are within the realm of what the public should be able to monitor. Academics themselves often benefit from public records requests used to review these types of spending decisions. Reporting focused on the very high pay of football and basketball coaches at US universities has helped prompt a discussion of whether academics are receiving a sufficient share of the funding.
Should the public have access to funding and spending information? Absolutely. But that doesn’t mean that every single document created by someone employed by a public institution should be open to scrutiny. Nowhere in the public or private sector is this the case, and for good reason: universal disclosure discourages innovation and cutting-edge research, and would increase special-interest influence over the workings of public universities and the knowledge they create.
We’ve seen what happens with unfettered access. When servers were hacked at the UK’s University of East Anglia, those who do not accept mainstream climate science combed through thousands of private, deliberative messages they thought would show evidence of some kind of conspiracy. Unfortunately for them, the science was robust, and every subsequent investigation found that the scientists’ work was sound. But the deniers were successful in confusing the public about the scientific consensus, distracting scientists from their work, and leaving one researcher contemplating suicide. This is not public accountability. This is harassment.
Sometimes, the public interest is in the ability of those outside the university to expose employee misconduct or special-interest influence on public institutions. One stark example: a Florida State University professor used Florida’s open records law to uncover an agreement that gave the libertarian Charles Koch Foundation influence over faculty hiring and curriculum content in exchange for a multi-million dollar donation.
As with keeping any government information from the public, the risk is a less-informed populace and lack of oversight. In a democratic system, the public is meant to act as an oversight authority for the government – the government acts on behalf of the people, and may do so only as long as the majority of people approve. How can the public know if the government is acting the way the public wants it to, if the public does not have access to government records?
Taxpayers have a right to know how their money is being used, and what research it is funding
Let’s talk about the specific circumstances of professors’ emails though. Academics at public institutions everywhere and, frankly, at most private institutions, do research that is publicly funded. Taxpayers have a right to know how their money is being used, what research it is funding and whether it is producing any meaningful results. The risk of not releasing those documents is that an unscrupulous researcher spends a great deal of public funds on unapproved activities or for research that produces zero quantifiable data or outcomes to justify the spending.
The results of much publicly funded science are already in the public domain once the study is published. It’s not possible to know what the results of a study will be beforehand. If we knew the results, we wouldn’t have to do the research. Sometimes, scientists find negative results; the drug wasn’t effective in treating epilepsy, for example. And the science process itself weeds out any scientific misconduct. Panels of scientists determine what studies have the most potential and are most deserving of government grants. Then, before publication, scientists submit their research to expert peers to check for bias or data problems. Any fraudulent study that is published is eventually discovered when data can’t be replicated.
Before the internet, scientists used to collaborate by speaking in person or on the telephone. Now, electronic communication enables scientists to share information with considerable efficiency, and makes large-scale, complex international projects much more feasible. But it also means that what was once oral is now written down: every nascent idea, criticism, rough draft, dead end, and brainstorm. This creates a challenge for those who want to protect scientific inquiry while also allowing for public accountability. As scientists whose private correspondence was successfully obtained by oil company BP put it: “Our concern is not simply the erosion of privacy, but the erosion of the deliberative process.”
Of course, we’ve also seen unscrupulous public records requests, but asking the government to evaluate a requester’s motives before answering a request invites the fox to watch over the hen house. A true system that respects free speech requires the government to avoid judging the worth of any message. Public records laws are meant to promote the same type of discussion and debate that free-speech traditions uphold. It follows, then, that the government should avoid judging the purity of a requester’s motive for the same reasons the government avoids judging the worth of an individual’s speech: if the government is in charge of deciding what speech is worthwhile, we lose hope of having truly free-flowing ideas.
Universities shouldn’t consider motives when evaluating how to comply with requests because that would too easily allow them to withhold inconvenient information. But they should absolutely consider motives when figuring out how to explain to their employees how excessive disclosure can be misused, and how to responsibly communicate electronically.
Certainly the intent behind freedom-of-information requests is not to stifle research, creative thinking or the free exchange of ideas. In fact, the intent is to promote those things. That said, it might be worthwhile to do a widespread survey of academics to see to what degree the threat that their communications could be made public impacts their work. My hunch is that the fear is not so pervasive as to be hampering a lot of research at this point, but solid data could convince me otherwise. If there is serious self-censorship occurring due to public records laws, we would need to take that into consideration, but still as just one factor in balancing the importance of research against the public’s right to monitor government activities.
The intent behind the law might not be to stifle research, but sometimes that’s the result. The consequences of intrusive requests are not imaginary. Some studies and anecdotal evidence show that harassment can cause scientists to self-censor, or even pursue other lines of research.
Harassment can cause scientists to self-censor, or even pursue other lines of research
We also can’t ignore the fact that complying with broad requests can be enormously time consuming, pulling scientists away from their work for many weeks as they go through tens of thousands of emails. In a recent case, an Arizona superior court found that reviewing just 90 emails was “daunting”, with court personnel spending many hours reviewing thousands of pages of “technical and esoteric” material. A better approach would be to create common disclosure standards for scientific research so we can avoid the cumbersome open-records process entirely.
© Emily Grannis and Michael Halpern