The next SAA Records Management Section Hangout will be on Wednesday, July 24, at 1:00 PM Eastern/12:00 noon Central/11:00 AM Mountain on our section’s YouTube page. Our topic is “Laboratories of democracy: Records management and the public at the state and local levels.”
Federal records issues have dominated the news for the last couple years. But on a daily basis, the records management decisions made by state and local government officials affects citizens’ daily lives in dramatic ways. While all Americans have similar access abilities to federal records, the enormous variation in records management practices and freedom of information laws between states and local governments mean that citizens in one jurisdiction might be able to access one set of records that citizens in another jurisdiction may not have the same ability to access.
All are welcome to join the Society of American Archivists Records Management section in a discussion with Sarah Jacobson (Texas State Library and Archives Commission) and Kathy Marquis (Wyoming State Archives) about transparency and public interest regarding records at the local and state levels. We will be monitoring the YouTube comments section and Twitter for questions for our speakers. Please use the #saarms hashtag on Twitter to ensure maximum visibility for your question, or leave it as a comment ahead of time at the RMS Blog. Look forward to seeing you there!
Guest post by Scott Kirycki, Digital Archivist, University of Notre Dame Archives
Session 706 – Opportunities in Change: Transition to Functional Records Scheduling in Washington, Wyoming, and North Carolina
Session chair Courtney Bailey (Records Analyst, State Archives of North Carolina) introduced the panel’s topic with the SAA Glossary’s definition of functional analysis: “A technique that sets priorities for appraising and processing materials of an office based on the relative importance of the functions the office performs in an organization.” The presenters then described how they applied functional analysis in creating functional records schedules for their states. They spoke in the order that their states implemented functional records scheduling (Washington, Wyoming, North Carolina), and Bailey mentioned in particular that she learned from what her colleagues had done, thereby illustrating that it is not always necessary to “reinvent the wheel” in records management.
In Washington, Russell Wood (State Records Manager, Washington State Archives) faced 28,000+ record series along with issues such as duplication of schedule numbers that were supposed to be unique. The schedules’ organization was based on which office created a record, and this led to the need for monthly changes to the schedules as office structures evolved. Switching to an approach based on the function of the records enabled Wood to develop a general schedule for records common to all state agencies and eliminate duplication. Making the schedules smaller helped get record creators on board with using them.
Mike Strom (State Archivist, Wyoming State Archives) told of a similar process of simplification by moving from office-specific to more general schedules. So far, the original 8,000 schedules have been reduced to 600. The process has involved some agitation, however, among agencies that were used to having their own sets of schedules. Strom emphasized communication and education as the keys to addressing the agitation. He gave examples of a training video that explains how to use the schedules and crosswalks that show how old and new schedules relate. He also suggested seeking input on proposed changes from the people who use the schedules.
Bailey spoke as well about the need to involve stakeholders in the making of schedules.
Over 200 individuals participated in meetings to evaluate North Carolina’s schedules as they were developed, and Bailey posted the schedules on a blog so those who were not at the meetings could provide feedback. To determine agency functions, she looked at their websites and previous schedules and asked records managers within the agencies to identify functions.
Later, when the schedules were ready, records analysts did training with the units. For additional training, Bailey wrote choose-your-own-adventure-style tutorials.
To show that the schedules are not arbitrary, Bailey included legal citations even though it was challenging to figure them out. She made an appendix listing the titles of series that come to the archives. This appendix helps record producers and managers, and also offers the public transparency about what kinds of records archives consider archival.
The session concluded with a question from the audience about whether members of the public might find general functional schedules harder to use when making records requests than agency-specific schedules. Wood recommended writing either type of schedule in a way that the public can understand. Bailey answered that uniformity in retention has cut down on confusion for the public. Strom indicated that Wyoming is not using the new schedules directly with the public in records requests, but he suggested that the new schedules may help cut down on the time it takes staff to find records to respond to requests.
Guest post by Cathrine Giles, State Records Branch Manager, Kentucky Department for Libraries and Archives
Wicked problems are defined as societal problems that are complex, vitally important, ill-defined, and rely on contested political judgements for resolution. Even just defining the scope and nature of a problem can be difficult. We can use “wicked problems” to frame a number of challenges the archival profession faces in order to identify where our professional knowledge can be applied to wicked problems challenging society. This session, Archival Engagements and Recordkeeping Intersections with Wicked Problems, led by Eliot Wilczek (MITRE Corporation), examined three examples of wicked problems.
Snowden Becker (University of California, Los Angeles) presented first with “To Protect and (Pre)Serve: Making, Keeping, and Considering Police Records.” The wicked problem here is how to apply records management practices to body worn cameras and the footage they create, particularly since body worn cameras and their footage are uniquely invasive, voluminous, and easily manipulated.
Becker looked at property rooms as a form of archives and evidence management as a variety of archival practices. Identifying the common ground between evidence and archival management may allow us to work on solutions that are mutually beneficial. Archives and property managers have difficulty with integration of audio/visual into recordkeeping, and the divide between evidence that sits on a shelf and evidence that sits on a server is growing. Archives and property managers need better training, more resources, and better tools for handling collections related to trauma and the continued trauma the collections may bring to a community.
Becker ended by saying it’s important to avoid simplistic readings and speculations about consequences, and to ask important questions and engage with institutions we may find problematic.
Anne Gilliland (University of California, Los Angeles) presented next with “Refugees, Records, and ICT at the Borders of the State.” She reviewed several challenges that face the recordkeeping fields, such as incompatibilities and inadequacies in databases and problems with digitally integrating and accessing archival recordkeeping systems and holdings, and the issues that come out of these: data access vs data protection, tensions between the need for digital fixity and digital redundancy, to name a few. With these issues already facing the recordkeeping fields, the issues refugees face are even more compounded, especially since future lives and generations depend on what happens in the present.
Gilliland discussed how the Refugees Rights and Records Project (R3) is working to address the recordkeeping challenges faced by refugees. R3 wants to identify how the use of records play crucial roles in the lives of refugees; how the professionals involved in recordkeeping in affected countries might work in ICT implementation to identify, protect, and secure such records; and potential policy recommendations that support refugee rights into records. They strategize with parallel projects that have similar needs, concerns, and conclusions.
Eira Tansey (University of Cincinnati) was the final speaker and presented on climate change-related records with “Appraising the Archival Anthropocene.” Tansey suggested that assessing the lengths between recordkeeping and climate change helps us appreciate why climate change became a wicked problem. In appraising the records of climate change like we do an institution, you start with examining who has created what kinds of records in order to carry out which specific functions.
Tansey proposed three primary functions that climate change records perform: 1. Records establishing scientific consensus for climate change. 2. Records created to manipulate public policy by fostering doubt about climate change. 3. Records that provide accountability and suggest a path forward for justice. In the case study focusing on ExxonMobil, Tansey showed how these three functions applied. Recordkeeping has informed every stage of climate change as a wicked problem. However, because ExxonMobil is a private entity, the public does not have full access to their records; as a result, the appraisal of their records is limited to what has been released by them or obtained by a subpoena.
Tansey concluded by reminding the audience that records are never neutral. Records reflect the values of those that create them.
“When everything you do in your repository is a high priority, how do you prioritize the core archival practice of processing?”
This was the premise of a panel titled “Prioritizing Processing When Everything is a Priority” anchored by several archivists. The first speaker was Pam Hackbart-Dean (Southern Illinois University) who analyzed the results of a survey concerning how processing decisions are made, who makes them, what factors influence processing decisions.
Significant barriers to processing include the usual suspects: staffing, unexpected acquisitions, changing department plans, changing administrative priorities, and lack of expertise in unusual formats. Processing can often get backburnered because it is less urgent than the other fires that come up in an archivists’ daily working life. Of particular interest to records manager was the survey finding that retention schedules rarely factor into how processing decisions are made.
Jamie Martin (IBM Corporate Archives) spoke next from the corporate archivist perspective. She noted that business archivists are unique from other archivists in that they provide answers, not records. The questions they receive from in-house are often quite complex, and the answers are needed within an hour. In this kind of setting, a more comprehensively processed collection is easier for the researcher (i.e., the corporate archivist) to navigate and deliver a very quick answer. Jamie talked about how she develops 1-3 year processing plans for the records at her repository.
Jessica Geiser (University of California Riverside) talked about how there was no centralized processing prioritization plan when she arrived. Since students were the main processing personnel, she assessed the backlog by applying a scoring metric to each collection, on a numeric scale by level of complexity/difficulty. This resulted in a large spreadsheet that designated which collections could be reasonably processed by student workers based on their score and which would be delayed because of size or special needs. It also set expectations for when collections would be processed.
Joanne Archer (University of Maryland) discussed how processing priorities at her institution were determined by a number of data sources documenting patron use and interest. The user data her institution used to develop processing priorities were subject specialists’ and curators’ assessment of research value, reference statistics (RefAnalytics), circulation data (Aeon), web analytics (Google Analytics), and speaking with users and public services staff.
After the panelists spoke, the session transitioned into breakout sessions for the remainder of the panel time slot. We broke into four different groups:
* Understanding our users
* The value of tools
* Project management and administration
* Managing unprocessed materials and backlogs
The large number of attendees at this session was testament to how many people find this to be a continuing issue that vexes large numbers of archivists. However, I think this session would have been improved by two things:
The workshop was dominated by academic archivists, and as the corporate archivist pointed out, different settings have radically different demands on archivists and what archivists are expected to produce (records? answers? both?). As a result, I wish there had been more institutional diversity. For example, I imagine that being a local records repository would be exceptionally challenging for processing priortization.
Finally, although this was a session identified as part of the annual conference “RIM track” it was hard to detect any emphasis on records and information management in this session. With the exception of the survey result showing that retention schedules rarely impact processing prioritization, there was no discussion of how retention scheduling or appraisal intersects with processing.
The New York Times just broke a story by investigative journalist Rukmini Callimachi titled “The ISIS files” exploring the way in which records kept by ISIS in Mosul reveal its efforts to build bureaucracy. ISIS demanded that Iraqi government workers continue to report to their offices. This allowed ISIS to take over existing state infrastructure, instead of having to invent it from the ground up.
As an archivist and records manager, I tend to read investigative journalism about caches of documents with an eye for the details that often aren’t revealed until several paragraphs in – if at all. Details like, how did the journalist get access to the records? Where are the records now? Were the records mostly intact, or just partial remainders from a larger series that might have been destroyed or removed? Are we talking paper or electronic, or both? What kind of authenticity measures were used to establish provenance? There is a brief exhibit of some of the documents the Times studied, and you can view them here.
Unfortunately, the Times story is light on these details, but there is one particularly revealing paragraph. Callimachi searched many government buildings for any documents she could find:
Because the buildings were near the front lines, Iraqi security forces nearly always accompanied our team. They led the way and gave permission to take the documents. In time, the troops escorting us became our sources and they, in turn, shared what they found, augmenting our cache by hundreds of records.
Callimachi devotes several paragraphs in her story to non-Sunni residents around Mosul (Shia Muslims and Christians) whose property was seized in order to be redistributed to ISIS soldiers and their families. Many of the files contained survey plats and other notes about the property. She writes:
Folder after folder, 273 in all, identified plots of land owned by farmers who belonged to one of the faiths banned by the group. Each yellow sleeve contained the handwritten request of a Sunni applying to confiscate the property.
ISIS-controlled state offices also issued vital records:
Babies born under the caliphate’s black flag were issued birth certificates on ISIS stationery.
I admittedly don’t know the first thing about the Iraqi legal system, but it seems to me that these records will be critical to those individuals whose land was seized by ISIS, or individuals who need access to vital records documenting the time and location of their birth.
Indeed, the question of “what to do with the state records left behind by former regimes?” has been deeply explored in the archival literature, especially within the last several years (Caswell, 2011; Cox, 2010; Cox, 2011; Cox, 2014; Montgomery, 2012; Montgomery, 2014; Montgomery, 2015), and there are also protocols for proper handling of cultural materials in warzones. Interestingly, one commenter suggested that the Times deposit these records at a US special collections for researchers to use. While I don’t expect journalists to be familiar with the work of archivists on the legal and ethical issues of sensitive records, I am very concerned that these records are maintained in such a way that they prioritize the victims’ human rights first and foremost – a need that is potentially (though not necessarily) at odds with the interests of journalists and researchers.
(Update: I had left a brief comment on the New York Times website re: my concern from an archivist perspective, and looks like it’s getting picked up via Twitter. I’m no longer on twitter, but I’d appreciate if someone could DM the journalists on my behalf and connect us!)
This guest post is by Holly Dolan, MLS, Assistant Manager of Denton County Records Management in Denton, Texas. If you would link to download copies of these valentines for your own re-use, Holly has graciously made this PDF available.
At some point in their career every records manager has felt the air go sour when they’ve walked into a room. What is it about records management that sets people on edge? Perhaps it’s the dense policy documents, the fear of making a mistake, or that dreaded word—compliance—that creates resistance and fear in our customers. Whatever the cause, overcoming this distrust can feel like an impossible task, but failing to address the issue can create communication barriers that make effective records management nearly impossible. So how do records managers build relationships of trust in the organizations that we serve while still gaining compliance?
To build relationships I try to focus on creative outreach, and one easy way I accomplish this is through fun holiday messages. Light-hearted messages make compliance information easier to digest and boosts the knowledge in my organization without relying on formal training. A great example of this type of outreach is our Valentine’s Day cards. When I first designed these cards, the main goal was to make my co-workers in our Records Management division laugh. I quickly realized, with each card having a records management term on them, this was a great outreach opportunity. We sent a copy of the cards to all of our records management liaisons countywide along with a link to our glossary. We received great feedback and even some positive comments from departments whom we rarely have the opportunity to interact with. It was great to see that inserting a little bit of humor into the topic made records management a bit more palatable to them.
Since then, we’ve tried to continue sending creative and upbeat outreach materials. Messages, newsletters, and even policy updates that include fun graphics and colors tend to be well received. For example, new records management liaisons each receive a colorful infographic outlining their duties. Last year’s Halloween message let our customers know that, even though cleaning out your file cabinet can be scary, Records Management can help! I truly believe that since we’ve focused on this type of outreach, our division and its mission has become better received throughout the county.
So why does creative outreach make such a difference? I believe that the nature of our work and the preconceived notions about records management sets us at an immediate disadvantage when attempting to communicate. We need to remain visible to our organizations, but when we just focus on the policy, we tend to exacerbate these communication issues and risk turning people off. Using humor in outreach establishes a mutual humanity with our customers, and when they see that we’re human (rather than the records management robots they were expecting), they may decide that records management isn’t that horrible after all.
As many records managers note, recordkeeping decisions are in the news on a daily basis (with today’s accelerated news cycle, it often feels like an hourly basis!). Our last Resourceful Records Manager interview astutely noted, “As I first assumed RM responsibilities, I sat in on a conference talk by a leader in the field, who cited a news headline on records mismanagement and dissected it with great enthusiasm. As I realized that records implications are everywhere, the massiveness (and potential massiveness) of the profession made an impression on me.”
It’s increasingly clear that one of the major areas of public discontent is around disposition. Disposition is the decision that guides what should happen to records once they have reached the end of their useful value from the records creator’s point of view. Disposition can either take the form of destruction, or transfer to archives. I am enormously sympathetic to concern over this topic – there are very real worries that public records and data will disappear because it does happen – sometimes for normal reasons, sometimes for scary Orwellian reasons. However, not all disposition is created the same, and one of the most valuable things that records managers can communicate to the public is explaining the difference between what’s normal and what’s not normal when it comes to what should be destroyed and what should be saved.
This isn’t something that only records managers and archivists struggle with – our library colleagues navigating the rocky paths of weeding old books and media have their own public relations horror stories. Librarians and archivists know that a collection development policy is there not only to guide collecting decisions, but to protect librarians and archivists from future headaches (in this case, getting saddled with tons of out of scope collections or donations). A collection development policy is also in the public interest – a library or an archive so bogged down by a backlog of unprocessed and out of scope donations doesn’t serve the general public well at all.
I think of records retention schedules – in many institutional archives, the de facto collection development policy – performing a very similar role. You can’t keep everything due to resource constraints, and even if time and money were no object, you still shouldn’t keep everything from a liability perspective. On a hypothetical basis, the general public understands that all records can’t, and shouldn’t be, kept forever in an institutional setting. Where things break down with public understanding are questions of how long to keep those records, and what should happen to them after they are no longer actively needed.
This was vividly illustrated during some recent research I’ve undertaken on regulatory failures concerning hydraulic fracturing. The short version is that fracking technology and proliferation is far ahead of existing oil and gas regulations. The current regulatory environment cannot keep up with fracking’s environmental impacts, and failures of recordkeeping are a prominent part of larger regulatory failures. Many groups have been filing open records requests to try to understand the impacts of fracking on rural land and water. The Pittsburgh-based investigative reporters of Public Herald has done enormous work in this area, scanning citizen complaint records from Pennsylvania’s Department of Environmental Protection, and making them available through a public files website, and mapping the complaints. Many of these complaints trigger subsequent investigations into whether fracking has resulted in an impact on local water supplies. In other words, a “positive determination of impact” would mean that the Department of Environmental Protection found that fracking affected water supplies.
As much as I admire the work of the Public Herald, I strongly object to one of their assertions about a very normal recordkeeping issue. In their article claiming that the Pennsylvania Department of Environmental Protection systematically cooks the books, they laid out nine different methods to substantiate their argument. Some of the recordkeeping practices are indeed serious cause for alarm, but the final one (“DEP Retention Policy for complaint records says complaints are to be kept on file for five years, “then shred.””) struck me as a complete misunderstanding of retention scheduling. Scheduling records for destruction is not a method for manipulating records, and it’s disingenuous to claim otherwise.
The Public Herald wrote the following:
Around month twenty-eight of this investigation, sitting down to scan the last remaining complaint files, a paper with everything blacked out except one paragraph was left on Public Herald’s file review desk by a veteran PA Department of Environmental Protection (DEP) employee. It read “DEP retention policy.” In a paragraph about “Complaints,” the document revealed that the Department should only hold complaint records for five years after resolution – “then shred.”
Initially, Public Herald figured these records would be kept on microfiche or a digital PDF and that shredding them would only ensure space within the records office. But, after careful questioning with an employee who’s been with the agency for decades, the staff person revealed that only those records which could be considered “useful” would be kept on record at all, turned into microfilm, and “useful” meant only those listed in DEP’s 260 positive determinations. What shocked us even more is that, according to this whistleblower, there is no review committee in place to sift through the “non-impact” complaint records before they are shredded.
The Public Herald rightfully raises important and compelling questions about how DEP assesses the question of fracking’s impact. But only part of the retention schedule is posted – the remainder is redacted. Without having the full context of the retention schedule, we do not know what other information is kept for say, 100 years (as one of the redacted record groups appears to be), and it very well may be that information otherwise in the public interest is kept for much longer. I tried to do a quick search for the full schedule online – although I could not easily find it (one of my biggest pet peeves common to state agencies – for some reason, I find it easier to obtain municipal and federal agency records schedules), one could almost certainly obtain an unredacted version of it by filing a Pennsylvania Right to Know request.
Perhaps this is the first time Public Herald has encountered a retention schedule, but the presentation of this as a shady and strange document is truly unfortunate. Furthermore, the write-up demonstrates how little the public understands about why records are scheduled the way they are – which is that the vast majority of retention decisions begin, and often end with, “How long must we keep these records to fulfill legal obligations?” Simply put, what is to be gained by maintaining complaint records for more than 5 years, given that most local, state, and federal agencies can barely keep up with managing records as they are currently scheduled? Proposals to retain records even longer would have to make a very compelling reason for why.
Many of the applicable statutes of limitations associated with potential liability brought by complaints would fall within 5 years, so a 5 year retention period for both impact and non-impact determination records doesn’t seem abnormal. Furthermore, the suggestion that a review committee should determine the final disposition of individual records is a recipe for disaster. Public comment absolutely can and should inform the broad formulation of retention scheduling decisions – for example, if members of the public could make a compelling argument for retaining the complaint records more than 5 years, that is something that should be seriously considered and perhaps incorporated into retention policies. But a committee to review the final disposition outcome for individual complaint case files is not realistic, and would almost certainly result in far more political bias. Who would be on the review committee? How would they document their decisions? How fast would they be expected to work? Witness how slow and controversial federal records declassification is if you want a glimpse of what individual-record-determination-decision-by-committee would almost certainly look like in practice.
Bottom line: as many archivists have pointed out, there is almost nothing that is neutral about the world of records and archives. Many records retention scheduling decisions are areas that significantly misunderstood by the general public. It would behoove more records managers to talk openly and transparently about why and how we schedule records the way we do. Others may disagree with our decisions, but at least the process will be clearer to those encountering records retention schedules for the first time.
Update: At their request, this post has been updated to more accurately identify the Public Herald as investigative reporters.
On February 8, the Records Management Section was pleased to host a Hangout with Snowden Becker of the UCLA Department of Information Studies to discuss law enforcement body-worn camera footage and recordings.
If you missed the Hangout, you can watch the recorded version here. In addition, Snowden prepared some additional readings on her website.
We had record turnout for this Hangout, and time for some excellent questions from viewers about exemptions from public records laws, transfer of recordings from devices to repositories, the role of bystander video, how vendors handle records, and differences between public and law enforcement perspectives on video recordings.
This topic is being addressed elsewhere within SAA; recently the Issues and Advocacy Section addressed the topic on their blog, and the Committee on Public Policy is currently circulating a draft to selected SAA sections in order to prepare an issue brief on body camera footage.
A local news story recently caught my attention, because it contains many lessons for records professionals, auditors, and local government. Last month, the Cincinnati Enquirerreported,
“A tiny river town in Adams County has no mayor, no clerk and, apparently, no financial records. The state auditor’s office has ruled the Village of Rome “unauditable” and is warning that legal action may follow.
In a press release Monday, the Ohio Auditor of State reported that during its audit of the village, which is scheduled to take place every two years, no financial records were provided.”
The entire story is worth reading. In addition to the lack of records, it seems that the Village of Rome lacks clear elected leadership, and that no one ran for mayor, clerk, or council during the last election.
This got me thinking – is this a recurring issue in very small jurisdictions? The Village of Rome only had 94 citizens at the time of the 2010 Census. While I don’t know much about the demographics of Rome, it does seem like it would be difficult to find and recruit enough elected representatives from a body of fewer than 100. From a quick web search, this seems like it’s an issue all over the United States. Jacksonburg, Ohio (population: 64) has gone at least 10 years without anyone filing for the top offices (in which case a write-in wins, or someone must be appointed). In Minnesota, 2/3 of local offices either have 0 or 1 candidate running, and over 30 cities have no one running for mayor. Sometimes there is little documented guidance about what to do if you want to retire and no one else files to run for your spot.
A common theme through many of these articles is that running for elected office in small jurisdictions is a thankless job: little compensation, or recognition, but still a significant amount of work. And since many rural residents now commute long distances to larger urban areas, there is a small pool of people potentially willing to run for elected office.
So what are the records management implications? Obviously even the smallest community is not an island unto itself, and typically is part of a larger governance relationship. It may be required to submit records to the county or state on a regular basis. And as we see from the Village of Rome, officials with records responsibilities are the key ingredient to not only creating and maintaining records, but performing their own act of archival transparency and authenticity by existing in the first place to turn over records to auditors. No people means no records.
Perhaps the best summary of this mess comes from the press release from the Ohio Auditor of State:
“It’s tough to start an audit when you can’t even find the people in charge,” Auditor Yost said, “but it’s even harder when they don’t provide any records.”
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 ofpublic 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.
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:
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.
Some public university faculty members understandably want to invokeacademic 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.