There's No Such Thing as a Bad FOIA Request
The Wisconsin GOP's quest to obtain a professor's emails isn't "McCarthyesque."
When James Fallows—the most reasonable man on the planet—compares someone's behavior to that of Sen. Joe McCarthy, which he did today on the Atlantic's website, it is incumbent upon all of us to investigate!
What's got Fallows so upset is an open records law request—roughly equivalent to a state FOIA request—filed in Wisconsin on March 17 by Stephan Thompson of the Republican Party for the emails of University of Wisconsin professor of history William Cronon.
Is the Wisconsin Republican Party using the freedom of information process to label Cronon a communist? Is it trying to paint the University of Wisconsin as a safe harbor for communist spies and communist sympathizers?
Well, no. The Republican Party is requesting all emails from Cronon's state email account that "reference any of the following terms: Republican, Scott Walker, recall, collective bargaining, AFSCME, WEAC, rally, union, Alberta Darling, Randy Hopper, Dan Kapanke, Rob Cowles, Scott Fitzgerald, Sheila Harsdorf, Luther Olsen, Glenn Grothman, Mary Lazich, Jeff Fitzgerald, Marty Beil, or Mary Bell."
Most of these people, as the Milwaukee Journal Sentinelpoints out, are Republican legislators. The exceptions are Beil, who heads the Wisconsin State Employees Union, and Bell, who leads the Wisconsin Education Association Council. The smoking gun that the requester seems to seek is evidence of a violation of the university's email policy, which reads, "University employees may not use these resources to support the nomination of any person for political office or to influence a vote in any election or referendum."
Fallows calls the Republicans' action an "attempt to intimidate" Cronon, who filed a spirited blog item about Wisconsin's Republican legislature on his own site a day-and-a-half before the open records law request was made.
In a post filed yesterday, Cronon calls the open records law request an attack on academic freedom, an abuse of the open records law, and an attempt to "prove that Bill Cronon has been engaging in illegal use of state emails to lobby for recall elections designed to defeat Republicans who voted for the Governor's Budget Repair Bill." The request was made "for the nakedly political purpose of trying to embarrass, harass, or silence a university professor," Cronon writes.
Cronon insists that he has committed "no politically inappropriate activities" on his state email account. (He also corresponds on a private email account.) He contends that if his emails are released, the free flow of ideas that powers the university will be throttled by the prospect that the politically motivated will be given "carte blanche to rummage through our online communications."
"[I]n the academic world this raises special concerns because such inquiries have often in the past been used to suppress unpopular ideas," Cronon continues.
I have no dog in the fight between Cronon and the Republican who filed the records request, other than my long-term support of strong local, state, and federal FOIA laws and rigorous application of them. Yeah, I know, there's a huge element of the political stunt to the filing. But calling it McCarthyesque, as Fallows does, is a complete overreach. Joe would have never done anything so flatfootedly procedural! Likewise, denouncing the request as an assault on academic freedom, as Cronon does, is also a stretch. If university emails are under the purview of records requests, every citizen—even self-identified Republican Party apparatchiks—has every right to file a request.
In other words, Cronon's beef isn't with the Republican who filed for his emails but with the law. If he thinks that exposing university emails to the scrutiny of FOIA laws is an abomination, he should spend less time crying wolf about how the university's precious academic freedom is under assault and more time getting the law changed.
Professor Cronon also betrays a bit of naiveté in railing against "highly politicized" open records requests. Has he never inspected the FOIA docket? Many requesters have "highly politicized" motivations, and those motivations don't nullify their petition. Nor should they.
Take, for example, the lawsuit filed against Wisconsin Gov. Scott Walker by the Associated Press and the Madison, Wis., Isthmus after his team ignored open records requests for emails he had received. The suit forced a settlement that released the materials. That Isthmus, a lefty alt-weekly, might hold a politicized view of the ongoing Wisconsin drama doesn't matter in the eyes of the law. FOIA laws exists for the benefit of independent seekers of truth, businesses looking for an edge over their competitors, news hounds seeking scoops, and even politicos seeking to stir the pot. If anything, these laws are underused. I side with the Wisconsin Freedom of Information Council, which holds, "The Open Records Law is like a muscle: The more it is used, the stronger it becomes. The law belongs to all of us, and it's our collective responsibility to make sure it stays strong."
I take Cronon at his word that his email correspondence did not violate the university's policies. I also accept his assertion that the release of his emails will cause him inconvenience, disruption, potential embarrassment, and worse, and that it will make the lives of professors at Wisconsin state schools miserable for all of the same reasons. I predict a long legal battle over the emails, as Ruthann Robson suggests here, but one that Cronon will lose because the open records law seems to side with the requesters of information. Its opening words unambiguously declare that "all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them."
I find nothing in that sentence that sounds remotely McCarthyesque. Do you?
Addendum, March 31, 2011: But wait, I have more to say on this subject. See this piece.
As anyone who has attended college knows, the classroom is not a politics-free environment, so let's not pretend that it is. In my experience—long ago at a land-grant diploma mill in the Midwest—professors tended to push their liberal political views but almost never punished students who resisted their orthodoxy. Your mileage may have varied. Send your college reminiscences to email@example.com—if you don't fear that a subpoena will rip them out of my hands and deposit them in a court filing. My Twitter feed is a completely open record. (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.)