Faculty research and public records laws

This post is the fourth in a series on research data management presented by the Records Management Roundtable. 

Working in higher education records management, I am fascinated by how different states treat records commonly associated with universities. One of the most unpredictable areas is state law regarding the public record status of public university faculty research.

What’s key to remember here is that state law is all over the place when it comes to public records exemptions that apply to state-supported universities. In all 50 states, state open records laws apply in some fashion to state-supported institutions — but the question of how looks radically different from state to state. For example, in Ohio all public university employees create records that could conceivably be subject to a public records request. On the other hand, this isn’t the case for public university employees in Delaware. And then there is Pennsylvania, which has some of the most unusual state university public records laws when you consider the concept of “state-related” institutions, to put it mildly.

In addition, the question of who formulates records retention schedules (which are very closely related to, but not the same thing as responding to public records requests — indeed, in many institutions those duties are located in separate areas) within public universities varies widely. For example, in Ohio, the state public records law authorizes each university’s Board of Trustees to establish university-based records management policies (in practice, the Trustees then delegate these records management responsibilities to other areas of the university, such as University Archives or General Counsel), and most Ohio public universities take retention scheduling advice from a state association known as IUC. However, the universities still look to the broader state law regarding what can and cannot be released as a public record under state law. In Kentucky, records retention schedules are established by the state-based Kentucky Department for Libraries and Archives. In my opinion, questions of decentralized or centralized retention scheduling authority has vast impacts on educating the larger university community on records issues, be they retention scheduling, or educating records creators about potential public records issues.

In recent years, there have been a number of public university faculty whose research records have been requested by the public. Recent high-profile cases illustrate some of the issues associated with faculty research and public records laws.** Climate change researcher Michael Mann, currently at Penn State University (and formerly of the University of Virginia) has been involved in a number of civil actions and public records requests from the state of Virginia and from a think tank. A timeline can be found here  (readers note that the timeline comes from the Union of Concerned Scientists, which has filed an amicus brief in the past in support of Mann — I was unable to find a similar comprehensive timeline from a mainstream news organization). In the original 2010 civil investigation demand, Virginia Attorney General Ken Cuccinelli requested “all data and materials presented by former professor Michael Mann when he applied for five research grants from the university.” In 2012, the Virginia Supreme Court sided with UVA and Mann. In 2011, the American Tradition Institute (now known as the Energy and Environment Legal Institute) filed a public records request “seeking all of the documents that “Dr. Michael Mann produced and/or received while working for the University . . . and otherwise while using its facilities and resources . . . .”. Ultimately the Virginia Supreme Court ruled against the Institute in 2014, and ordered them to pay $250 in damages to Mann and UVA.

In a more recent case, Kansas University student group Students for a Sustainable Future filed a public records request for contracts, correspondence, and CVs concerning economist Art Hall’s hiring, funding sources, and correspondence on specific topics. A district court temporarily stopped the University from releasing the records after Hall filed a lawsuit against the university. The case was ultimately settled out of court, with only a selected group of records released as part of the settlement.

A common theme in the discussion of public records laws is if and how there is a chilling effect on what public employees are willing to state in the written record. This concern carries over to the question of the public records status of faculty research, since some faculty may avoid engaging in controversial research if they believe their research will be targeted through public records requests. Furthermore, release of research records can mean a researcher’s work may be “scooped” before she can publish it. This is a huge risk for tenure-track faculty, who depend on a successful publication of original and novel research in order to obtain tenure. This is likely why in many states that have carved out public records exemptions on faculty research records, they often exempt research records for work that has not yet been published (for example, Virginia, Michigan, and Ohio).

In addition to research records, some requesters have asked for records not specifically tied to faculty research, but other faculty activities, particularly in areas of teaching, activism, and shared governance. This gets into the knotty question of academic freedom, and if/how it should cover records that aren’t exclusively related solely to research activities. For example, in 2011, the Wisconsin Republican Party filed a public records request for the emails of University of Wisconsin geographer William Cronon, who had been publicly critical of Governor Scott Walker’s actions on public employee unions.

In a sign that professors are beginning to grapple with this issue in new ways, professor Laura Wright of Western Carolina University released all of her emails from a recent records request on her blog. Links to the redacted emails are here and here.

I think there is a very clear justification for public records exemptions pertaining to unpublished faculty research. As noted above, unpublished research that is subject to public record requests would very quickly compromise universities’ research profile, and create a chilling effect on controversial research (which is often important and groundbreaking research). State courts have recently sided with this argument, finding that the chilling effects outweigh disclosure of research records (see pages 9-12 of this brief). Regarding other non-research records, there remains two problems:

  1. What exactly is a “research record”…? My inbox is full of emails with colleagues where we discuss things like “Hm, what’d you think of $XYZ in the news? Maybe we should eventually collaborate on this thing and turn it into an SAA conference proposal or a research article. If we did, we should go about it $ABC…” Does that count as a research-related record? It’s certainly opening the door, but we haven’t formalized an actual project.
  2. Some public university faculty members understandably want to invoke academic freedom to either intentionally or unintentionally set themselves apart from other public employees subject to records requests. Academic freedom is critical to being able to research, teach, and do academic service, and public records requests for information related to any of these activities has the potential to compromise academic freedom. Obviously, records managers are as familiar as anyone else with politically-motivated harassment via records requests. The problem with invoking this claim is that faculty members aren’t the only public employees subject to political harassment and intimidation for carrying out their work as they see fit. Many state agency employees have been politically targeted for doing work that is within the sound confines of their professional expertise — look no further than Florida Department of Environmental Protection climate scientists. To me, the better argument isn’t to create a wholly exempt class of public employees, but to ensure that public employees engaged in potentially controversial, but legal and ethical work, in the public interest have full civil service and collective bargaining protections in order to perform their jobs effectively.

**In the interest of full-disclosure, not only am I a records manager, but I also hold faculty status at my public university, am a member of the American Association of University Professors via our university’s AAUP collective bargaining unit, and conduct research related to the intersection of archives and climate change.

This post updated on March 3, 2017 to more accurately describe the type of request Professor Wright received.

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