The enemies of open government—you know who you are—must be chortling over the anguished cries sounding from campuses in Wisconsin and Michigan, where academics have recently been hit with state-FOIA requests. Filed by a Republican and a libertarian think tank, the requests appear to be shopping for .edu email correspondence that would catch professors in the act of politicking over the collective-bargaining-rights debate in Wisconsin, something state employees are not supposed to do with state resources such as email.
Academics, along with journalists, businessmen, NGOs, lawyers, and even UFO believers are big supporters of state and federal FOIA laws because they help make government more transparent. But not so surprisingly, enthusiasm for the vigorous use of FOIA diminishes as one becomes the target of a request. University of Wisconsin history professor William Cronon has blogged a plea for the Republican who requested his emails to drop the matter, and the labor-studies centers at the University of Michigan and Wayne State University, which are the objects of an FOIA request by the Mackinac Center for Public Policy, are playing their responses cooler.
New York Times columnist Paul Krugman speaks for FOIA-peeved academics everywhere in this blog entry, in which he calls the Wisconsin open-records-law request "academic intimidation," and in his column titled "American Thought Police," in which he calls the request a "smear," an "attack," an attempt to shut down "discourse," and, of course, a "witch hunt."
In a statement, the American Historical Association took a similar tack, calling the request a way "to find a pretext for discrediting a scholar who has taken a public position." But the AHA, Krugman, and Cronon concede that Republicans (and others) are probably within their legal rights to file such requests. Seeing as the filers aren't likely to withdraw their FOIA requests, what has Krugman's protest accomplished for his side? Both Cronon and Krugman are champions of FOIA—Cronon rightly calls it a "precious asset of democracy" in his blog. But neither of them believes that FOIA should be applied to Cronon's emails in this case. In Cronon's view, Wisconsin's open-records-law should apply to universities ...
... [w]hen there is good reason to believe that wrongdoing has occurred. When formal academic governance proceedings are making important decisions that the public has a right to know about. When teachers engage in abusive relationships with their students. When the documents being requested have to do with official university business. And so on.
In seeking to carve out exceptions for himself and the fellow members of his guild, Cronon brings a smile to the face of every state bureaucrat and federal muckety-muck ever tagged with a FOIA request. As those of us who have filed lawful FOIAs know, one standard response to many freedom of information requests is that the FOIA law doesn't apply to that party and their department—what they really mean is that your nosy-parker request shouldn't apply to them, and now won't you please step off? Although Cronon and Krugman have made no call to change FOIA law, they clearly find it defective, which will delight the foes of FOIA in every branch of government who would love to revisit the law and "tighten" it, if you know what I mean.
Separating FOIA from politics and politics from FOIA is probably an impossible task. Sam Stein illustrates this point in a Huffington Post piece from October, noting that the Democratic National Committee FOIA-ed the Pentagon for information on nine potential 2012 Republican presidential candidates. Then, Minnesota Gov. Tim Pawlenty retaliated by FOIA-ing the feds for correspondence between the DNC and federal officials about federal health care legislation.
As Stein writes, "[F]or all the rage, the fact remains that filing FOIAs is, pretty much, standard operating political procedure for both parties. It has been for quite some time."
Stein continues: Sen. Rick Santorum filed a FOIA in 1999 seeking information about a potential opponent. In the 1996 presidential campaign, the Dole-Kemp ticket filed a FOIA with the Department of Justice to release information on a Democratic donor and alleged drug smuggler. He points to a Newsweek story that showed how the DNC filed FOIAs at the behest of President Bill Clinton to find information about potential Dole running mates.
The FOIA process sometimes gets politicized on the receiving end, as an Associated Press investigation from last year shows. The AP caught the Homeland Security Department rerouting hundreds of information requests to senior political advisers while "probing for information about the requesters and delaying disclosures deemed too politically sensitive."
Wisconsin State Journal City Editor Phil Brinkman speaks for me when he writes this about the Wisconsin controversy:
[T]he records law requires no proof of honorable intent. You don't even have to identify yourself to access most public records.
On his blog, Cronon writes persuasively of the Republican Party's "abuse" of the records law to silence him for criticizing the governor's policy. I don't doubt he finds the request harassing. But there isn't one "correct" use for the records law. When someone asks to view public records, they're really just posing a question. And there are no dumb questions. The answer, if there is one, is revealed once the records are released.
Think of FOIA laws as "citizens' subpoenas" that help the people keep the government on the straight and narrow—subpoenas that work only if they're broad enough to deny bureaucrats places to hide vital information. As essential as academic freedom may be for the free exchange and exploration of ideas, I believe FOIA should almost always trump it.
Those Mackinac Center people have another FOIA case involving school emails. And another. I couldn't fit it into my piece, but here's a fascinating article from the Grand Rapids Pressabout the local uses of FOIA. Go ahead and send your FOIA request to firstname.lastname@example.org. It has already been denied. My Twitter feed, on the other hand, has always been an open book. (E-mail may be quoted by name in "The Fray," Slate's readers' forum; in a future article; or elsewhere unless the writer stipulates otherwise. Permanent disclosure: Slate is owned by the Washington Post Co.)