Open Government vs. Academic Freedom

Madelyn F. Wessel, associate general counsel, University of Virginia and co-counsel for UVA in ATI v. UVA; GW Law Associate Dean Alan B. Morrison; and David W. Schnare, lead counsel for the requesters in ATI v. UVA, at the conference.

What should society do when there is a clash between two values that most Americans support? That was the topic of a daylong conference at the law school in April, organized by Alan B. Morrison, Lerner Family Associate Dean for Public Interest and Public Service Law. 

The principles that took center stage were academic freedom (university faculty should be able to explore areas of interest without governmental interference) and open government (citizens have a right, with limited exceptions, to know what their governments are doing with the taxpayers’ money). The conflict between them arises because state universities are covered by state open records laws, which include records of university faculty members. 

A case pending before the Virginia Supreme Court at the time of the conference presented a specific focus for the discussion. The American Tradition Institute asked for all emails sent to or from former University of Virginia (UVA) Professor Michael Mann relating to his widely debated study on climate change. The topic is surely one of importance, and the asserted goal of the request—to see if there were methodological flaws in the study or problems that were not fully aired—is one that comes within the mainstream of scientific inquiry. But asking for every email is both burdensome (there were more than 30,000 pages to review) and potentially invasive of Professor Mann’s privacy. The university argued that there were statutory exemptions protecting these records, and after the conference, the Virginia Supreme Court issued an opinion (available on the conference website) agreeing with the university.

That decision settled the case under Virginia law, but there are similar cases pending in other states, and there will surely be more in the future. The laws of the states differ in many key respects, and Virginia’s 127 exemptions set it far apart from most other jurisdictions.

The problem is complicated by several other factors. A university professor engages in many activities, and it is not clear which ones are part of his or her official duties so emails regarding them are state records. In addition, the laws apply only to state universities, which means that a faculty member weighing the pros and cons of teaching at UVA versus Duke University might chose Duke because it is a private institution. Finally, if a Duke professor sends an email to a UVA collaborator, that email becomes a Virginia record in the hands of the recipient, which means that no one who exchanges emails with a state employee is safe from the reach of state open records laws.

Conference participants included a number of key lawyers from the UVA case and many experts from other universities and nonprofit organizations.

A full video of the conference, as well as background papers, legal pleadings in a current case, and the questions that formed the basis of the discussion are available at http://bit.ly/QA2LrS.