Scrutiny of Scholar's Emails

A tug of war is brewing at the University of Kansas. On one side the rope are privacy protections in the name of academic freedom. On the other, a pull for public’s right to know.

Somewhere in the center hovers the challenge of balancing competing interests of transparency and scholars’ privacy.

A Kansas student group says it wants to investigate the relationship between a university lecturer and Charles and David Koch, who fund the employee’s work. The group suspects Art Hall, the director of the university's Center for Applied Economics, of being a “stealth lobbyist” for the billionaire Koch brothers, who are known for their conservative views.

But Hall argues the students are using the state’s open-records law to request a decade's worth of his emails. He calls it a fishing expedition that, if effective, could have a chilling effect on scholarly communication via email.

The students’ request and a subsequent lawsuit Hall filed have set off a lively debate in the Koch brothers’ home state of Kansas, which in turn has filled the op-ed section of the local newspaper.

Politically driven groups previously have used public-information laws to investigate professors -- or intimidate them, depending on your view.

But this case also ties in widely held fears about the growing influence of Koch dollars on campuses and a history of grant conditions that some say infringed on academic independence. This also is one of the only times such a notable case involves a group with a liberal background asking for the correspondence of an academic with acknowledged conservative leanings.

"It's sand in the gears of the whole academic process," Hall said, if the open-records law can be used as a weapon.

Undue Influence

Hall does research and gives lectures as the director and sole full-time employee of the Center for Applied Economics, which was launched in 2004 with seed money from the Fred C. and Mary R. Koch Foundation. The foundation continues to provide the majority of the center’s funding, though Hall couldn’t say exactly how much each year. (His legal fees for this court case also are being covered by a Koch donation.)

In April, the university's Students for a Sustainable Future requested contracts and correspondence related to Hall’s hiring. The students want to see documentation of donations given to the university from 11 different organizations, all of which have ties to the Koch brothers. The request also asks for any of Hall’s emails since 2004 that contain mentions of the organizations, which include Koch family foundations, the American Legislative Exchange Council and Americans for Prosperity.

Hall, who previously worked as an economist for a lobbying department within Koch Industries, teaches from a libertarian economic perspective. In public testimony, he’s backed tax cuts in Kansas and opposed renewable energy subsidies.

The open-records request targets his research because of that perspective, Hall said.

In his lawsuit, he argues that private communications are protected from disclosure under an exemption of the Kansas Open Records Act. The exemption protects some correspondence between a public agency and a private individual, including items unrelated to activities that involve public money. Hall considers himself to be a private individual in part because his position is paid for with private money. The suit also argues that he’s protected by the constitutional principles of academic freedom, an extension of the First Amendment.

“If my private, personal communications are released, I will not be the only one whose academic freedom is jeopardized,“ Hall wrote in an opinion piece in the Lawrence Journal-World. “The issue is much larger and could ultimately jeopardize the academic freedom of any scholar at a public institution of higher education.”

A Kansas court, at least initially, agreed that there’s substance to Hall’s argument. In December, Douglas County District Court Judge Robert Fairchild halted the release of the documents until the court can review them.

Schuyler Kraus, a Kansas senior and president of Students for a Sustainable Future, said she knows requests like hers could set a dangerous precedent for making other academics vulnerable to open-records requests. In fact, she’s happy the judge paused the release to examine the situation.

Kraus says she doesn’t care about the political leaning of Hall’s research. But she does care if that research was influenced by outside money. Since the judge’s order, she thinks her group has clarified why the records should be released.

“We’ve seen enough evidence suggesting there’s undue influence," Kraus said. "But there’s no way we can know for sure until we see those contracts."

Case Precedent

Hall isn’t upset that the university's legal team decided many of his emails should be released under the state’s open records law. The judge’s order came on the eve of the documents’ release.

The economist decided to file suit after discovering that there’s little legal clarity in the intersection of public records and academic freedom, despite the fact that requests for professors’ communications have grown more common in the past few years.

“In my case, it’s a matter of raising awareness,” he said. “Nobody knew these open-records laws would be used this way.”

A few years ago, there were several high-profile fights over releasing emails of professors at public universities. In Virginia in 2011, the American Tradition Institute and a Republican state lawmaker asked for e-mails and research from former University of Virginia professor and climate researcher Michael Mann. In April, the Virginia Supreme Court ruled the records could be withheld as exempted proprietary work.

That same year, the Republican Party of Wisconsin requested copies of University of Wisconsin at Madison history professor William Cronon’s emails. And the conservative Mackinac Center for Public Policy in Michigan requested records from labor studies researchers at three state universities. Both requests centered on terms related to current political issues.

Unlike the Kansas case, none of those requests involved attempts to answer questions about the conditions of funding or alleged academic impropriety.

The American Association of University Professors (AAUP) stood by professors in the Wisconsin and Virginia cases, publicly criticizing broad requests for emails on politically charged issues as an assault on academic freedom.

The association hasn’t issued a statement this time around, which has drawn criticism from writers at some conservative publications and blogs, who accuse the organization of being hypocritical. 

In a post on the independent blog of Academe Magazine, which is published by the AAUP, John K. Wilson says the AAUP has always recommended that open-records requests be evaluated on a case-by-case basis. Some pose a threat to professors' academic freedom, but some could reveal violations of academic freedom or standards, said Wilson, who is a co-editor of the blog and a member of the AAUP’s Committee A on Academic Freedom and Tenure. 

“There is a huge difference between fishing expeditions aimed at finding offensive opinions expressed in personal emails, and examining whether donors have illegitimate influence over universities,” he writes.

Administrator vs. Faculty Member

Unlike the national association, the Kansas State Conference of the AAUP has taken a loud stance, pushing for the release of the records and donating $1,000 to the student group to help pay for its request.

Ron Barrett, an associate professor of aerospace engineering at the university, who is president of the Kansas AAUP conference, defines the matter as an issue of academic integrity, not academic freedom, as Hall has claimed.  

Unlike previous cases in which some academics argued for the privacy of professors’ communications, Barrett argues that Hall is not a rank-and-file faculty member, and as such, doesn’t merit the same level of protection.

Barrett describes Hall as a central-level administrator, pointing to his job description, which lists four areas of duty: leadership, administering the center, fundraising and research. There’s no mention of the word teaching anywhere in the job description.

“It seems very much like a tempest in a teapot that there’s an academic freedom debate over an administrator,” he said. “I’ve never heard of such a thing.” (Hall disputes the fact that the majority of his time is spent on administrative duties.)

Barrett, like the student group, fears what he calls the “de-facto laundering of ideas.” With private money, the Koch brothers can push specific ideals through the university, making them appear unbiased.

There may be no impropriety by Hall, Barrett said. But the fact that details remain hidden leads to suspicion, he said.

Gray Territory

Whether accessing the documents is the students’ only hope for proving or disproving any impropriety doesn’t actually matter in a legal sense, said Matthew Finkin, a law professor at University of Illinois at Urbana-Champaign and former general counsel to the AAUP.

Open-records laws aren’t a need-to-know system, meaning information isn’t released because it’s important, Finkin said. Documents are released regardless of their relevance, unless they fall under an exemption.

The public has a right to know about the origin of and any strings attached to money that pays for a center housed within a public university, Finkin said. But the request for Hall’s personal communications with certain people or associations is more vexing.

Some emails likely will fall under an exemption for personal privacy, he said. Other emails could threaten academic freedom, in the sense that their release may stifle open communications between scholars who fear their emails could be published and used out of context.

The nature of each communication is what’s important, said Finkin, who co-authored the book For the Common Good: Principles of American Academic Freedom.

“It’s not a black or white situation," he said. "It’s not clear whether it’s disclosable or not or whether it’s a matter of academic freedom or privacy unless you know the subject of the email."

The judge will have to review all the files to determine whether the content of the email qualifies it for an exemption, and that happens all the time in federal freedom-of-information requests, he said.

Bob O’Neil agrees with Finkin that the judge made the right decision to read through the records before allowing them to be released. O’Neil is the former director of the Thomas Jefferson Center for the Protection of Free Expression, a former president of the University of Virginia and taught constitutional law there.

Yet in granting the temporary restraining order, the judge wrote that it was necessary to “avoid immediate irreparable injury, loss and damage” to Hall. That language seems to foreshadow that the judge is leaning in favor of Hall's arguments. 

After reading all the exemptions of the Kansas law, O’Neil said he’s not certain any of them go far enough to ensure Hall’s victory. There is an exemption for documents that violate personal privacy, but there’s nothing that explicitly protects academic freedom.

And while O’Neil acknowledges that overreaching records requests have the potential to chill academic exchanges, he is slightly skeptical whether, in this case, the harm to Hall would really be immediate and irreparable, as the judge writes.

Should Emails Be Protected?

In a handful of states, scholarly work is specifically exempted from freedom-of-information laws. Delaware, for example, excludes all state-university employees from its law. A small but diverse group of other states, including Georgia, Maine, New Jersey, Ohio, South Carolina and Utah, have varying language but generally exempt faculty communications on research or academic topics.

Kansas doesn’t have any such protections, as university officials have pointed out in explaining why they decided to disclose the records.

Tim Caboni, vice chancellor for public affairs, said the general counsel’s office at Kansas spent an extraordinary amount of time going through each document and determining which ones should be released.

He wasn’t sure how many documents the university redacted or planned to withhold. Kansas first eliminated a portion of the records that qualified as research in progress, and then met with Hall to discuss a set of documents that were less clear.

 In terms of the protest over protecting academic freedom, Caboni said the scholarly items that were set to be released were completed, final research reports that were going to be public eventually.

“We’re going to err on the side on transparency,” he said. “We’re a public organization funded by taxpayers.”

Will Creeley, vice president of legal and public advocacy at the Foundation for Individual Rights in Education (FIRE), said he appreciates that the university appears to have made a good faith effort to be both transparent and to protect its employee.

That doesn’t satisfy him, though. One of the pillars of academic freedom is to insulate scholars from the prevailing political winds of any given moment. And in Creeley’s experience litigating freedom-of-speech cases for students, he’s found that administrators can be swayed easily by popular consensus.

“Even if Kansas had done the right thing here, I’m wary of a solution that puts the power to make that decision in the hands of the administrators,” said Creeley, who wrote a post for FIRE’s blog about the Kansas request.

Open-records laws provide an easy opportunity for groups with partisan interests on either side of the aisle to get emails, read through them and find statements that could be taken out of context. The power to use the law as a weapon is too tempting, he said.

That’s why Creeley argues that the best solution is for states to make a legislative fix to recognize professors’ communications as protected. Others concerned about the growth in such requests have also suggested amending open-records laws. 

But attorney William Briggs calls that solution impractical. “It seems inadequate to leave the protection of scholarly email exchanges up to the whims of 50 different legislatures,” he wrote in a paper for the Journal of College and University Law.

Unlike others arguing on behalf of academic freedom in these discussions, Briggs doesn’t use Constitutional protections to make his case. Legal precedent classifies academic freedom not as a constitutional right, but as a constitutional interest, Briggs writes. That means it draws less protection than rights, such as free speech, because it has to be balanced against other public-policy interests, such as open government.

(He bases much of his analysis off Sweezy v. New Hampshire and Keyishian v. Board of Regents of the University of the State of New York, the same U.S. Supreme Court cases Hall and others have used as evidence of a constitutional protection of academic freedom.)  

Regardless, Briggs writes that unchecked use of open-records laws can stifle research and debate. Scholarly email exchanges shouldn’t be considered public records because even though professors of public universities are state employees, they have little to do with the actual workings of government.

In Lawrence, a city anchored by the University of Kansas, discourse over the Koch brothers, professors’ emails and academic freedom has quieted since the weeks following the judge’s decision. A hearing has yet to be set in the case.

The university is confident that it's following the law, Caboni said. But there is room for more guidance on which exemptions are applicable for records requests.

“We welcome the judge’s input,” he said. “If the judge thinks that we could or should go farther, then absolutely, that’s something we’ll do.”