By Dan Kennedy • The press, politics, technology, culture and other passions

In Wisconsin, a FOIA request too far

William Cronon

As a journalist, my inclination is to support public-records laws that guarantee maximum disclosure. As an ordinary citizen, it’s sometimes unclear to me exactly how far those laws ought to go.

You may have heard that Wisconsin Republicans have filed a Freedom of Information Act request to obtain private emails written by or to a history professor named William Cronon, whose blog has become a focal point in the battle over the rights of public-employee unions in that state.

Cronon may have to comply because he teaches at the University of Wisconsin in Madison, a state university and thus subject to Wisconsin’s strict public-records laws.

One strong argument against disclosure — and one invoked by Cronon himself — is the principle of academic freedom. That may well be how Cronon beats this, yet it strikes me as an easy way out. Why should a professor be exempt while, say, a $50,000-a-year career employee in the highway department is subject to having his private emails revealed in response to a FOIA request?

I should note that this does not affect me personally. Northeastern is a private university. But I don’t see why I should be safe from the long arm of FOIA while my colleagues at UMass are not.

Like Paul Krugman, I make some attempt to use my work email address for professional business and my personal address for everything else. But it’s mainly for my organizational benefit, and I’m not all that painstaking about keeping the two accounts separate.

I’m not sure what the answer is. It seems to me that some officials higher up the food chain ought to be subject to FOIA laws, but that ordinary employees should not. Of course, such officials’ correspondence with ordinary employees would be covered. But I shouldn’t be able to FOIA the email of anyone just because he or she happens to draw a government paycheck.


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34 Comments

  1. Michael Pahre

    In Wisconsin it ain’t a “FOIA request,” as you wrote. It’s a request under that state’s Open Records Law, not the federal law. The two laws are different, the exemptions are different, etc. I read their letter, and it’s not a FOIA request. I’m sure you know better and will correct this in your blog post…

    If the Republicans had actually made a FOIA request — which they didn’t — then all the professor would have to do is write a terse response saying that no documents are provided because none fall under the request.

    • Dan Kennedy

      @Michael: From the Capital Times of Madison, Wis.:

      Cronon revealed the GOP’s Freedom of Information Act request in his Scholar as Citizen blog post late Thursday evening along with a lengthy, and typically scholarly, defense.

      Good enough for me.

  2. Jeff Inglis

    Dan – Here’s Jack Shafer’s take on Slate, last week.

    http://www.slate.com/id/2289482/pagenum/all/#p2

    -Jeff

  3. Stephen Stein

    Here’s the suggestion I made in Cronon’s thread:

    “it is now vitally important that you issue a FOIA request for all of the Governor’s and the Fitzgerald’s [Senate and House leaders] communication with the Wisconsin GOP, conspiring in the issuance of their FOIA request. If there’s even a hint of state government involvement in this harassment, it must be brought to light.

    What do they have to hide? Sauce for the goose…”

  4. Stephen Stein

    BTW, it’s my understanding that UWisc is complying with this request, after scrubbing student’s personal details, academic work-in-progress sensitive items, etc.

    • Dan Kennedy

      @Stephen: I have all my Northeastern e-mail automatically forward to my Gmail account. Although I suppose if I were subject to the public-records law, that would be illegal.

  5. Stephen Stein

    @Dan – I don’t see why it would be a public-records problem… the university still would have copies of your incoming mail on their servers.

    The problem would come with you SENDING work mail through your gmail account, I think. I don’t know if that would hit the servers.

    • Dan Kennedy

      @Stephen: You know more about technology than I do, but I’m not sure there’s any trace of my mail on the university’s servers given the way I have my mail redirected.

  6. Stephen Stein

    According to a friend I have in Northeastern IT, who claims no expertise, but only tangential knowledge:

    “- for student email accounts, we’ve directly and completely outsourced that to gmail. Their email never touches NU servers.

    – for fac/staff, everything is still in-house, if a fac/staff member forwards out, the email has to come through our servers first. He may well have settings on his mailbox that delete each msg from his NU account as he forwards the msg out, but since it touched our servers at all, I believe that means that it’s been backed up, so we can be compliant with retention laws, etc.”

    which makes sense.

  7. Mike Benedict

    Is this really happening? The GOP not only declared war on grade school teachers, but now they are going after the colleges too?

    This, my friends, has echoes of Mao. What a political gaffe!

  8. C.E. Stead

    @Steve – MA state law, and probabaly WI, makes a distinction between elected and appointed officials as far as political activity goes. A governor would not be bound by the same prohibitions as a regular employee, which a professor is. As it is, legislators get into ethics trouble for abusing the state computer system and mailroom for distributing fundraising appeals, which ARE prohibited to them.

  9. Stephen Stein

    @CE – does this mean someone would be denied access to the political leaders’ emails? I’m not alleging anything illegal went on (maybe, maybe not); I’m just interested in whether the GOP state leaders were complicit in conspiring to harass Cronon.

  10. C.E. Stead

    @Steve – Why is legal/not legal not of interest? Isn’t that actually the issue at hand?

    I have been in exactly his position – a government employee who is politically active on behalf of the minority party in a higly politicized state. I was not simple-minded enough to abuse the explicitly laid out state email policy as it seems this government-employed professor has. In fact, it is wise to be EXTRA scrupulous, not to mention legal. Because shocking as it may seem, Democrats ‘harass’ minority party members too.

  11. Bob Gardner

    Of course the Wisconsin GOP is just harassing Cronon, but I would rather the various state FOIA’s were too broad, than not broad enough.
    There is enormous resistance to openness at all levels of government, and not very effective enforcement.

  12. Mike Rice

    “Hell hath no fury like a bunch of Republicans scorned.”

  13. Stephen Stein

    @CE – why does it seem to you that Cronon has abused the state email policy? Cronon himself says:

    Ever since moving to Wisconsin from Yale in the early 1990s, I have been careful to maintain a separation between my public @wisc.edu email address and my personal email address. I use the latter for all communications with family members and friends, and I use it too for any activities of mine that might be construed as political rather than scholarly (though the boundaries between these two categories is harder to draw for a scholar of the modern United States than non-scholars might imagine). I have always owned my own computers, because I haven’t wanted to worry about whether my personal and professional emails are mingling on a state-owned machine in ways that would violate Wisconsin’s rules about using state property for personal or political communication.

    I guess you’re just calling him a liar. Or am I reading you wrong?

  14. Jim Chiavelli

    Yeah, put me on the side of smelly but permissable. He’s a public employee, and presumably Dr Cronon knew or shoulda known the rules for email disclosure.

    Politically motivated fishing expedition? Oh, yeah. So’s Democrats’ attempt to grab all Gov. Haley Barbour’s emails down in wherever the hell he’s from. Is there a difference between a governor and a professor? Sure. But public employee is public employee, until a legislature carves out an exemption, and I’d rather have, as Mr Gardner says above, discloure rules too broad than rules with lots of exemptions.

    I do hope the good professor buries them in stacks of whiny emails from students demanding extensions on papers, or parents’ demanding better grades for their precious byblows, or the registrar demanding midterm grades be filed even earlier … Even better if they’re GOP parents.

  15. Stephen Stein

    @Jim and others –
    It seems by your comments you haven’t read Cronon’s post that sparked all this controversy – it’s here.

    Cronon, in this post, demonstrates that he indeed knows the rules for email disclosure and for the use of state-funded email in his job.

  16. C.E. Stead

    @Steve – I wrote : I was not simple-minded enough to abuse the explicitly laid out state email policy as it seems this government-employed professor has. I don’t think that’s calling him a liar, and he will be convicted or vindicated by release of the emails. If there’s nothing there, he should SPEED their release.

    • Dan Kennedy

      One thing I don’t think anyone has commented on is whether he would have been OK if he’d used a private email account. I’m not sure that was true. Elected officials who use private accounts for work-related purposes get in trouble. If the Republicans are arguing that he somehow abused his official position, then wouldn’t they demand to see emails from his private account as well?

  17. Stephen Stein

    @CE – I still don’t understand why it seems to you that he broke the law, nor why you don’t accept his word that he didn’t.

    As I understand it, the disclosure is not really up to him; it’s up to the university. The UWisc chancellor has stated it will comply with the law.

  18. Stephen Stein

    @Dan – IMO private email accounts of public employees (elected and appointed) should be off-limits if used “on their own time” and not for business reasons. Proving that? I don’t know if a judge would authorize a fishing expedition into it. It certainly would be troublesome if a public employee ran all their email through a third party like gmail. There should be regulations against that – I don’t know if there are.

    For that matter, I think if you are using your personal gmail account for sending Northeastern business-related email, that might be frowned upon. Emphasize *might* – I certainly don’t know NU’s regs on this. But if it were my business, I’d insist on everything going through the company servers, for record-keeping and security reasons.

    • Dan Kennedy

      @Stephen: If there are regulations, we have never been made aware of them. I know of professors here who don’t even give out their Northeastern email addresses, and use, say, Gmail for everything. They’re even listed in the online directory under their Gmail addresses. Probably different for staff than for faculty.

  19. Stephen Stein

    @Dan – wouldn’t that cause some difficulties if, say, the university was sued because of the on-line actions of some professor or staff member? Or if the university had to show a history of work product in defense of some patent action? Or (insert many somethings that an imaginative lawyer might dream up)?

    This kind of thing MIGHT be used to authorize a fishing expedition into the professor/staff members’ private email. Messy.

  20. Michael Pahre

    @Dan: If you look at the professor’s blog, you will find the full text of the public records request made by the Republicans in Wisconsin. As a journalist, I’m sure you’re much more interested in sourcing that in repeating mis-statements made by one or more uninformed news outlets.

    Below is the text of the letter. It is perfectly clear that it is a state public records request, not a federal FOIA request.

    Now care to correct the record here in this post?

    ******************************************

    From: Stephan Thompson [mailto:SThompson@wisgop.org]
    Sent: Thursday, March 17, 2011 2:37 PM
    To: Dowling, John
    Subject: Open Records Request

    Dear Mr. Dowling,

    Under Wisconsin open records law, we are requesting copies of the following items:

    Copies of all emails into and out of Prof. William Cronon’s state email account from January 1, 2011 to present which 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.

    We are making this request under Chapter 19.32 of the Wisconsin state statutes, through the Open Records law. Specifically, we would like to cite the following section of Wis. Stat. 19.32 (2) that defines a public record as “anything recorded or preserved that has been created or is being kept by the agency. This includes tapes, films, charts, photographs, computer printouts, etc.”

    Thank you for your prompt attention, and please make us aware of any costs in advance of preparation of this request.

    Sincerely,

    Stephan Thompson

    Republican Party of Wisconsin

    608-257-4765

    ******************************************

    • Dan Kennedy

      @Michael: Public-records requests are universally referred to as FOIA requests, regardless of whether they are at the state or federal level and regardless of the formal wording of the law. Check out the FOIA Letter Generator and select Wisconsin, a service of the Reporters Committee for Freedom of the Press.

      Also see this guide from the Citizen Media Law Project, which begins: “‘Freedom of Information’ (‘FOI’) is a general term for the laws — sometimes called ‘sunshine laws’ — and principles that govern the public’s right to access government records.”

      This is such a minor point that I’m not sure why you care. But the Capital Times (again, of Wisconsin) was using “Freedom of Information Act” in the sense of a “general term.” The paper was not wrong, neither was I and I’ll continue to use the term.

  21. Stephen Stein

    Talking Points Memo reports more FOIA requests for professors’ emails, this time in Michigan, asking for any emails that reference “the union battle in Wisconsin, Gov. Scott Walker (R-WI) and MSNBC’s Rachel Maddow”.

    Warning – this article contains frequent verbing of the noun FOIA, a practice I cannot endorse!

  22. Music video for Scott Walker and anyone who thinks they prefer a world without unions…

    http://www.youtube.com/watch?v=r5abzLSeJ3Q

  23. Mike Benedict

    Hey, lookie here: Guess who is behind the attack on those subversive labor relations professors?

    http://tpmdc.talkingpointsmemo.com/2011/03/in-michigan-conservative-think-tank-seeks-labor-prof-emails.php?ref=fpb

    Gosh, what a shock.

  24. C.E. Stead

    @ Mike – isn’t the man a history professor?

    I am not in favor of looking at personal emails. The request on Cronon stipulates his STATE email account, so even if Gmail touches his server, I don’t think it would be searched as the request is not for that ACCOUNT, only the state one.

    Which is the clear-cut law. Drumming up hysteria doesn’t make it factual.

  25. Mike Benedict

    C.E.: Would it matter if he taught home ec?

    I find all this ironic, given that Fla. gov. (and teabagger favorite) Rick Scott is doing everything he can to operate in complete and utter secrecy.

    http://www.tampabay.com/blogs/the-buzz-florida-politics/content/rick-scotts-inaugural-luncheon-limits-public-access-open-meeting-public-space

    http://www.tampabay.com/news/politics/gubernatorial/article1150403.ece

    Oh, and he wants to drug test all state employees. That will do wonders for the budget! (And guess who will get the contracts? Party donors, anyone?)

    Welcome to the World of Mao, aka the GOP 2011!

  26. C.E. Stead

    Yes, when the argument is weak, drag in other unrelated matters to create the shadowy conspiracy…

    (Yes, DK, I know. Takes one to know one. BTW – looking at Cronon’s photo – didn’t he used to star in ‘Family Ties’?)

  27. Mike Benedict

    @C.E.: I don’t think there’s a conspiracy. The GOP is too dumb for that. I think they just happen to have a lot of like-minded Maoists who say one thing and do another.

  28. C.E. Stead

    DK – per Salon, the request has been answered, and the redaction was pretty generous.

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