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Academic Freedom: Public Universities Wrestle With Open Records Laws

by Cheryl Hogue
April 14, 2014 | A version of this story appeared in Volume 92, Issue 15

Scientific data aren’t the only type of information that the public is requesting from researchers. In a growing number of cases, politicians, activist groups, the news media, and individuals are seeking scientists’ e-mails and other documents.

Although open records laws vary from state to state, these statutes generally offer an avenue for members of the public to obtain e-mails sent to and from academics working at public universities. Many researchers believe that public disclosure of their work e-mails will put a serious damper on academic freedom: unfettered debates, criticisms, and hashing over of ideas with other researchers.

Attorneys assembled at a recent conference on academic freedom and state open records laws said many of these statutes are designed to give the public access to communications by state employees. The conference, held on April 1, was sponsored by the George Washington University Law School in collaboration with the National Academy of Sciences’ Committee on Science, Technology & Law.

The state laws, however, have a variety of exemptions. They protect specific kinds of information from disclosure. In some states, research-related documents are protected. Determining what specific information a public university must release remains a legal debate in many states, participants said.

In a high-profile case, an activist libertarian group that rejects the notion of human-caused climate change is suing the University of Virginia seeking climate researcher Michael E. Mann’s e-mails. The organization that brought the suit is the Energy & Environment Legal Institute, which recently changed its name from the American Tradition Institute.

Mann, who worked for UVA from 1999 to 2005, developed the once-contested “hockey stick” graph describing how temperatures have changed over the past millennium. Mann is now a professor at Pennsylvania State University. The lawsuit has made its way to the Virginia Supreme Court, which is expected to rule on the case later this month.

As part of those legal proceedings, the National Academy of Sciences took the unusual step of joining a half-dozen higher education organizations in a friend-of-the-court brief. The groups, which include the American Council on Education, back UVA’s position that the university can protect scholarly communications from public disclosure. They argue that disclosure would chill academic inquiry and interfere with debate among scholars.

On the other side, 17 news media organizations, pushing for more open government, are siding with the group seeking Mann’s e-mails.

Beyond e-mails, requesters are seeking other types of data from universities under public records laws, said Jamie Lewis Keith, vice president and general counsel of the University of Florida. For example, a state court ordered the University of Florida to turn over information about the location of its animal research facilities to an animal welfare activist group, she said. Later, several activists were arrested for trespassing near one of those labs, she added.


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