There have been several efforts recently by partisan groups in Michigan and Wisconsin to gain access to faculty email messages on subjects that fall within the scope of the faculty member's research or personal political opinions. These groups have made use of state Freedom of Information laws, on the basis that faculty members are "state officials" and their communications are therefore "business records" of the university.
This is an alarming intrusion into the zone of academic and personal freedom of the faculty member, and it threatens to create a chilling effect on the faculty member's ability to freely communicate his or her ideas with colleagues without fear of retaliation or punishment, or premature disclosure of ideas not yet fully developed. It is vital that universities think very carefully about these issues before complying.
Once a scholar's ideas are published, they are in the public forum and are readily available to anyone who is interested, including the partisan groups who are now attempting to gain access to private emails. But before the scholar chooses to publish his or her ideas, she needs and deserves to have a zone of private conversation and expression through which she can test and refine her ideas. This is part of being a human being. It is a key reason why academic freedom is so important, to allow the free expression and refinement of ideas through intellectual interaction. And being able to control the publicity or privacy of one's thoughts is essential for this process, and is very close to being a human right.
So accepting the principle that a faculty member at a public university is a state official and his/her communications about research ideas or social and political opinions are "business records" represents a huge erosion of academic and personal freedom. Academic freedom requires a zone of untrammeled private expression and discussion through which the individual can develop and refine her ideas.
If public universities are to be successful in maintaining their commitment to academic freedom for their faculty, they need to draw a bright line between business records and intellectual, critical, and creative documents. Freedom of information laws pertain to the former but should not require disclosure of the latter.
So what is the distinction? Here is one way of drawing the distinction. Business activities have to do with decision making about material issues within the organization. They have to do with concrete decisions involving such issues as purchasing, contracting, personnel decisions, hiring, and other material administrative actions. Intellectual, critical and creative documents are those that express the faculty member's ideas, thoughts, judgments, and hypotheses about subjects of interest. Transparency about business deliberations and decisions is essential in order to prevent conflict of interest, favoritism, and other improper business activities within any institution. But privacy with regard to "intellectual, critical, and creative documents" falls outside the scope of business activity, and should be protected.
The argument is sometimes made that professors are hired to think and do research; therefore their writings, even in email, are part of their employment work; therefore these writings are business records. But this line of thought is incorrect. The faculty member is hired to teach courses. An expectation of their work is that they will be active intellectuals and scholars. They will exercise their talents, it is expected, in an autonomous and self-directed way, to arrive at their own original results. But the content and product of their intellectual works are not themselves paid work products. Evidence of this, in part, is the fact that the university does not claim ownership of the copyright on faculty writings. Originality, autonomy, independence, and creativity are key to intellectual work, including faculty work. And this in turn underlines the importance of the zone of privacy within the context of which their intellectual and personal thinking and expression take place.
There are extreme and untenable results that ensue if you take this paradigm to its limit. Right now the FOIA requests are for a range of emails delimited by a list of keywords. But if the principle is accepted that the faculty member's intellectual products, in whatever form, are a business record, then preliminary drafts of scholarly work, laboratory notebooks, the jottings of a creative writing professor in preparation of a short story or novel -- all these products ultimately lead to a research result, which is a part of the expectations of the faculty member's work. And therefore, by this paradigm, they would be discoverable. Therefore it would be possible to FOIA a poet working for a public university to make available preliminary drafts of a poem. Likewise, paintings, drawings, and sculptures are the work of faculty in the arts. By this same principle, it is hard to see a basis for denying a FOIA request for drawings, sketches, and clay models.
On the subject of the expression of political and social opinions, observations, and judgments: Clearly this set of ideas and expressions by the faculty member does not fall within the scope of faculty employment under any description. The university does not hire faculty members to have political opinions. Rather, as citizens they may or may not have such opinions, and it is entirely within their rights to hold and express them. Further, neither the state nor the university has a right or an interest to surveilling or observing or criticizing or delimiting their expressions of political opinion. So any emails that are primarily expressive of political opinions or judgments are not part of their work, do not have business content, and should not be provided under the scope of a FOIA request, even though they are expressed by a faculty member hired by a public university.
These FOIA requests, it should be noted, do not depend on the issue of whether the email account is owned by the university or is a private account. FOIA requires university officials to provide emails that have business content relevant to a particular subject, without regard to the platform on which these messages were transmitted. If the judgment were to stand that the faculty's intellectual products are in fact business records, then it wouldn't matter whether they are expressed in an email owned by the university or a private account.
Here is a story in TPM about the Mackinac Center FOIA request in Michigan (link). Here is a summary of Michigan's FOIA law. Here is a posting from Inside Higher Education that describes the decisions the University of Wisconsin administration made with respect to requests for some of history professor William Cronon's email (link). And here is a thoughtful piece from the Center for Free Speech on Campus on the issues (link).