William Cronon's emails raise an uncomfortable question most concerned citizens have probably never considered asking: What's more important — open records laws or academic freedom?
Last week, Cronon, a distinguished historian at the University of Wisconsin, revealed on his blog that the state Republican party had filed an open-records request for emails sent to and from his university account mentioning the state's recent labor dispute and prominent GOP politicians. Records requests of public employee emails are perfectly common. Journalists file them all the time to learn what elected officials and bureaucrats are up to with taxpayers' time and money.
But this seemed like something new — an overtly partisan inquiry into a public intellectual's inbox. Cronon had just posted a blog item — and would soon write an op-ed for The New York Times — critical of state Republicans' antiunion tactics. The records request, while entirely legal under Wisconsin's freedom of information law, looked to Cronon like retaliation, a bid to personally embarrass an academic while intimidating others like him. In that sense, it's seen as a sort of social media version of SLAPP, the strategic lawsuit against public participation.
The case has prompted national attention and ferocious editorials, and Tuesday it turned out conservatives in Michigan have now filed an even more broad-ranging FOIA request of public-university researchers working in labor-studies departments.
The scenario is so compelling — and disquieting — because it pits in opposition two cherished values, and Cronon's case won't come to a conclusion until one wins out.
We are left, in the meantime, to debate the gap between the spirit and the letter of FOIA laws (which many have argued were intended to hold accountable officials like Gov. Scott Walker, not academics like Bill Cronon), and whether we could try to close that gap without spoiling the entire concept.
"While there's a lot about this request — and similar requests I've seen coming from either political side — that troubles me," said Charles Davis, a FOIA expert and professor at the University Missouri journalism school, "there's nothing at end the day that would make me weaken the laws or subject them to some political litmus test or say 'they're only for nonpolitical purposes.'"
Freedom of information, in other words, must come before considerations of academic freedom, Davis said, although he confesses to being a career advocate for the former and not an academic freedom expert.
"As Cronon points out, open government is a wonderful value, transparency is a wonderful value, and he's very affirming of that," Scholtz said. "But we have conflicting values, conflicting principles here. And from our perspective, academic freedom trumps transparency in this case."
The AAUP has sent a letter to Wisconsin Chancellor Biddy Martin arguing as much and asking her not to comply with the records request. In discussing this, Scholtz made a parallel disclaimer to the one Davis offered: He is not, he adds, an expert on open-records law.
But for the rest of us who are not clear-eyed champions of one principle at the expense of the other (and Miller-McCune certainly falls into this murkier category as a journalism outlet that celebrates the value of academic research), the balance is trickier.
Cronon doesn't expect anything too incriminating to be unearthed in his email. But he and the AAUP argue that such partisan FOIA fishing could have a chilling effect on other academics, deterring them from pursuing controversial questions, or even working at public universities. In that way, the case is similar to Virginia Attorney General Ken Cuccinelli's lawsuit seeking the academic records of a well-known climate scientist. The AAUP fought that request, too.
"The fundamental position for us would be that while transparency serves the common good, as Cronon himself is quick to say," Scholtz said, "we would argue that academic freedom is of such high value in a democratic society, one that values higher learning, that it serves a common good by encouraging free pursuit and dissemination of knowledge, and that, in some ways, it's a higher value."
This sounds convincing, but of course transparency advocates make similar arguments, citing the same central value to democracy of holding its representatives accountable. And academics themselves — whether historians or hard scientists — are able to pursue some of that essential knowledge Scholtz mentions because of open-records access.
It may be that both values — and not just the reputation of the Wisconsin Republican Party — are diminished in the confrontation. Both suddenly appear something less than ironclad (or at least both can't be ironclad at the same time), and both now come with clear collateral damage.
This is part of what troubles Davis even as he defends the line on FOIAs.
"I do think that stridently partisan FOI requests at the end of the day give me pause, because what I want everyone to remember is that FOI has long been a bipartisan, politically neutral value that people of all political persuasions embrace," he said. "I do worry when it's turned into just a really partisan tool that people are left with fresh powder burns and they become less of a fan [of FOI] than they were before."