The Wisconsin GOP has filed an open records request for the e-mails of University of Wisconsin Professor William Cronon . Cronon and others say the GOP is trying to silence his criticism of the labor dispute in WI. The GOP says the request is perfectly legal and they need not explain what they intend to do with the e-mails. We wanted to ask a FOIA expert to weigh in. RCFP's Lucy Dalglish explains that the law is on the GOP's side.
BOB GARFIELD: Lucy, welcome back to the show.
LUCY DALGLISH: Good to talk to you.
BOB GARFIELD: Can we just clear up a couple more details of the case, first? The GOP can ask for Professor Cronon’s emails because he works for a public university, right?
LUCY DALGLISH: That’s correct. Virtually all states recognize that communications by public employees that are done electronically, via email or any other type of electronic communication, also is covered by a state public records law.
BOB GARFIELD: And if he worked, let's say, not at the University of Wisconsin at Madison but Marquette, which is a private university, we wouldn't be having this conversation.
LUCY DALGLISH: That’s correct.
BOB GARFIELD: Okay, so now let me quote a couple of pieces in The New York Times, first an Op-Ed by Paul Krugman, who writes, quote, “What’s at stake here is whether we're going to have an open national discourse in which scholars feel free to go wherever the evidence takes them and to contribute to public understanding. Republicans, in Wisconsin and elsewhere, are trying to shut that kind of discourse down.” And the Times editorial page agreed in an editorial that appeared just opposite Krugman’s Op-Ed. James Fallows of The Atlantic made a comparison to the most infamous Wisconsin Republican politician, Senator Joseph McCarthy. Are these fair criticisms?
LUCY DALGLISH: I don't know if they're fair criticisms or not. I can just tell you that the general law of access to records is neutral. It is intent-neutral, and it provides access to whoever wants the information. I don't think academic freedom really falls into the debate over whether or not records should be released, because I don't think professors have any greater right to protect their content than any other wonderful profession of great value to the public. Whether or not his academic freedom is violated has nothing to do with the Open Records statute.
BOB GARFIELD: Let's just say the University of Wisconsin decides to draw a line in the sand and call this a blatantly political intrusion into the professional activities of one of our professors; on the grounds of academic freedom we simply refuse to comply. Then what happens?
LUCY DALGLISH: Well, I think the legislators then would have the opportunity to appeal that decision, and I can't imagine that a court in the State of Wisconsin would not order the university to release the information.
BOB GARFIELD: Now, Professor Cronon has written at length on this whole subject. He believes that what’s behind all of this is an attempt by the GOP to demonstrate that he has somehow abused the state email, that he used it for political purposes, which is expressly forbidden under statute.
LUCY DALGLISH: He also points out in his writings that he is aware of the fact that Wisconsin courts have said that expressly personal emails are exempt. So, in other words, if his wife sends him an email saying, honey, would you pick up some milk on your way home, that is exempt under the Open Records law. But if he is talking about something related to his job or his profession or, you know, related to his position at the university, it is covered under the State Public Records law.
BOB GARFIELD: Now, in the fired attorneys general case in the Bush administration, when a FOIA request was put in for the White House email, it turned out that a lot of business was being conducted not on the government email account but on, you know, I think Gmail. Are we going to see a - an exodus of state employees from their official accounts to Gmail?
LUCY DALGLISH: In general, nationwide the trend is toward states recognizing that if you are doing public business of any type on the Internet, that information is public. So even if you were doing public business on your Gmail account, in many, many states that would still be public information and you would have to turn it over.
BOB GARFIELD: Now, there’s a similar situation in Michigan where the Mackinac Center for Public Policy, a conservative research group, filed a FOIA seeking records from professors at the University of Michigan, Michigan State and Wayne State, all state institutions, on a similar fishing expedition. Your thoughts on that case?
LUCY DALGLISH: That may be true; it may be a fishing expedition. But that doesn't mean there’s anything illegal or inappropriate about it.
BOB GARFIELD: Let's just say that this is really the leading edge of explicitly political organizations making FOIA Requests on a hunt for something that is politically useful. Is there a chance of backlash, of governments who are so incapable of dealing with all of the incoming that they prevail upon their legislatures to pull back on FOIA on the grounds of just simply not having the resources to comply?
LUCY DALGLISH: That is something I do worry about. It’s something I worry about a lot. I communicate by email all the time. But you have to understand that we've probably quadrupled the number of records that are now public that wouldn't have been public in the past because this type of record never existed before. And states and local governments and the federal government are having a very difficult time getting their arms around this issue because they recognize that this is public information, but there is so - much of it.
BOB GARFIELD: Given what you've told me, this seems like kind of an open and shut case, freedom-of-information-wise. But there is an awful lot of outrage out there. Is this case really particularly important in, you know, sort of the legal pantheon? Or has it just, just gotten under people’s skin?
LUCY DALGLISH: I think it’s just got gotten under people’s skin. Number one, we've focused a lot of nationwide attention on Wisconsin lately. Also, what’s something that’s a little bit new about this is it’s the first time I remember a FOIA issue, Freedom of Information issue, being focused directly on university professors, and that’s really been happening a little bit over the last year. There’s a case in Virginia. There’s this case in Michigan. There’s a case in Wisconsin. We really haven't seen debate over this ‘cause I guess in the past nobody really cared that much about what emails professors were exchanging with other folks. I've been kind of intrigued over the last week to ten days. I belong to a couple of FOIA list-serves. There’s been a lot of traffic: Well, what do you think about academic freedom? And the consensus is basically what I've just been talking about: No, it’s releasable, but because there are a lot of professors responding, one of the responses has been, hey, maybe we can get a grant to study that, that’s a really interesting topic.
BOB GARFIELD: [LAUGHING] Lucy, thank you so much.
LUCY DALGLISH: [LAUGHS] You’re welcome.
BOB GARFIELD: Lucy Dalglish is executive director of the Reporters Committee for Freedom of the Press.