Protecting Faculty Records

Saying that “frivolous” open records requests for faculty members’ emails and other communications have a potential chilling effect on academic freedom, a joint faculty-administrative body at the University of California at Los Angeles has drafted a first-of-its-kind statement to protect the confidentiality of frank, collaborative exchanges among scholars discussing their research.

"Public access laws are an important component of the democratic process in our society, and scholars themselves frequently benefit from this legal framework,” reads the UCLA Statement on the Principles of Scholarly Research and Public Records Requests. “However, faculty scholarly communications must be protected from [California Public Records Act] and [federal Freedom of Information Act] requests to guard the principle of academic freedom, the integrity of the research process and peer review, and the broader teaching and research mission of the university.”

Saying that high-quality scholarship is a “collaborative process” involving peer review at every level – not just at the finished product – the statement continues: “These onerous, politically motivated, or frivolous requests may inhibit the very communications that nourish excellence in research and teaching, threatening the long-established principles of scholarly research.”

Carole Goldberg, a professor of law and vice chancellor of academic personnel at ULCA, is co-chair of the joint Academic Senate-Administration Task Force on Academic Freedom, which drafted the statement. She said that no particular incident at UCLA had inspired the statement, but that faculty and administrators wanted to “get ahead of the curve” on academic freedom and scholarly communications, in light of several high-profile incidents in at other public institutions in recent years.

The University of Virginia, for example, in 2010 faced records requests over the work of a former professor, Michael Mann, now a distinguished professor of meteorology at Pennsylvania State University. The requests were filed by Kenneth T. Cuccinelli Virginia’s then-attorney general, regarding Mann's research on climate change. Cuccinelli, a Republican, repeatedly expressed doubts about Mann's research and about climate change. The Virginia Supreme Court has upheld the professor’s privacy, but many academics felt that the query was an attempt to intimidate scientists involved in controversial research, not a legitimate request for information to protect the public interest, as intended by various public information laws at the state and federal level. Emails, they said, don’t paint the full picture of their work and can easily be taken out of context. The American Association of University Professors, the Union of Concerned Scientists and other civil liberties groups backed the University of Virginia as it attempted to deny the attorney general’s probe. (Additional higher education groups supporting Mann released an amicus brief against forced scholarly disclosure last month, in a separate but similar query into Mann’s research brought by a conservative group. The case was heard last week in Virginia Supreme Court.)

Also, in 2011, a Republic operative in Wisconsin requested all emails concerning certain key words, such as “union,” and “recall,” sent by William Cronon, a professor of history, geography and environmental studies at the University of Wisconsin at Madison. Cronon had been publicly critical of Gov. Scott Walker, an anti-union Republican who faced a recall election, and the professor’s supporters said that the request for information was an attack on his academic freedom.

Like the University of Virginia, Wisconsin publicly supported a professor who said he was under threat from politically-motivated public information requests (it said it would not release “private email exchanges among scholars that fall within the orbit of academic freedom and all that is entailed by it.”) But neither university had a standing policy on such requests.

Most recently, in November, 30 faculty members at the University of North Carolina at Chapel Hill signed a letter in support of their colleague, Gene Nichol, director of the UNC School of Law's Center on Work, Poverty and Opportunity, as he faced a request to review all email correspondence and other communication records during a six-week period this fall. "Surveilling a professor's communications is a really troubling approach to protecting liberty," they wrote in response to the request from the Civitas Institute, a private organization promoting liberty and conservative ideals in North Carolina, according to its website. Nichol had recently been publicly critical of the state's then-governor, Pat McCrory, a Republican.

Goldberg said the UCLA statement is meant to proactively address what’s public and private information, in the interest of preserving academic freedom (She denied that statement was drafted in response to public information requests from animal rights groups that historically have targeted UCLA for criticism for research concerning animal subjects). It’s the first in the nation to release such a statement, she added.

The task force document lists five principles essential to that collaborative process, and therefore meriting protection: “frank exchange” among scholars; ongoing peer review; that topics “relevant to society” may elicit “strong reactions” (its lists climate change as an example); inter-institutional collaboration; and that teaching and research are carried out according to discipline-specific professional and ethical commitments.

It says that clarity as to what is and is not a public record is “essential” to the academic enterprise, and that the university must – consistent with the “letter and intent” of public records law – do its “utmost” to protect:

• The system of peer review “at all levels.”
•  The right of faculty to choose topics and research areas based on “intrinsic criteria,” even those which are potentially controversial or unpopular.
•  Academic freedoms for UCLA faculty that are afforded to academics working at private universities or corporations.
• “Longstanding” traditions of ethical and professional codes of conduct.

“The threat to faculty of forced disclosure of scholarly communication through [public information] requests can damage intellectual freedom and interfere with robust scholarly communication,” the statement concludes. “The proper forum for evaluating and vetting academic research is through the time-honored and rigorous process of peer review.”

The statement also notes that such requests can be time-consuming for faculty and other personnel; requests can often yield thousands of applicable documents, containing requested key words. UCLA did not immediately respond to a request for how many public records requests regarding scholarly communications it has received in the last year.

Along with its statement, released to faculty Monday in an email from Chancellor Gene D. Block, the task force published a faculty resource guide for dealing with public information requests. It says that UCLA, as a public institution, is a subject to the California public records act and must disclose written records “relating to the conduct of the public’s business,” with certain exemptions. But it cautions faculty against responding to such requests on their own and directs them instead to an on-campus records office for assistance. Goldberg said the resource guide is meant as a practical supplement to the principle-driven policy statement.

In his email to faculty, Block “wholeheartedly” endorsed the statement, calling it a “compelling affirmation of our peer review system and the right of faculty to conduct research and scholarship on controversial topics free from political interference.”

Outside experts on academic freedom also endorsed the document.

Hans-Joerg Tiede, a professor of computer science at Illinois Wesleyan University and member of AAUP’s Committee on College and University Governance, said was “a very positive contribution to the defense of academic freedom,” in that it articulated central principles of academic freedom and originated through shared governance channels.

Tiede said via email: “As the UCLA statement notes, ‘these requests have increasingly been used for political purposes or to intimidate faculty working on controversial issues.’ Thus, it is highly appropriate for institutions to adopt statements of principles that can provide general guidance to university officers charged with evaluating individual requests for records.”

AAUP’s standing Access to University Records policy says that “considerations of privacy, academic freedom, and the desirable insulation of the university from outside pressures, as well as considerations of efficient operation of the educational enterprise, argue in favor of a strong or even compelling presumption against access to university documents [from outside of the university] for which a reasonable claim of confidentiality has been made.”

The “presumption of confidentiality” is strongest with respect to individual privacy rights, personal notes and files, and ongoing research, “where the dangers of external pressures and publicity could be fatal to the necessary climate of academic freedom.”

Robert O’Neil, former president of and professor of law at the University of Virginia and author of Academic Freedom in the Wired World: Political Extremism, Corporate Power, and the University, said UCLA’s statement was “congenial” with AAUP policies, and noted its strong similarities to the statement Madison's then-President Biddy Martin released during the query into Cronon’s emails, “which essentially shut down the partisan quest for politically sensitive material.”

“Without a zone of privacy within which to conduct and protect their work, scholars would not be able to produce new knowledge or make life-enhancing discoveries,” Martin, who is now president of Amherst College, said in that statement.