Utilizing an open-records request to uncover faculty emails, records, and other personal and professional documents is something of a controversial topic and, increasingly, a cause for debate. Earlier this year, contributing editor to The EdJurists, Dr. Neal Hutchens, et al., published an article [1] in the Chronicle of Higher Education discussing a few such cases—including a request lodged by a political advocacy group to access a law professor’s documents after the latter authored a political opinion piece [2] criticizing the state’s governor. Dr. Hutchens and his co-authors underscore an important consideration in the dialogue about public access to faculty documents. The prevailing issue with these requests isn’t the important interests of transparency and accountability that state open-records acts demand; rather, the problem is that these requests are often used to suppress debate, and even harass faculty. However, state legislatures have begun --and may continue--to remove unfinished research, [3] or other certain types of faculty communication unrelated to government functions from the scope of disclosure under state open-records laws. [4] Dr. Hutchens and his co-authors also wisely suggest that courts and institutions should balance between the interests of disclosure and academic freedom. However, instead of spilling more ink on what Dr. Hutchens, et al., have ably discussed, I would like to briefly investigate another quadrant of the “access to information” map.
My last post dealt with the proliferation of student data collection, [5] which seems to be experiencing something of an upswing amidst privacy concerns. [6] The topic of student data privacy concerns is not far afield from, and in fact inextricably linked to, faculty privacy concerns. This is because open-records requests for faculty emails and other records or communications not only impact academic freedoms; they may have a chilling effect on day-to-day faculty responsibilities. Sometimes, between faculty, there are justified reasons for sharing identifiable student data, or other critical student information, particularly to serve a legitimate educational interest or even to address a health or safety emergency. Generally speaking, a faculty member’s email records at a public postsecondary institution may not be exempt from an open-records request. Furthermore, it may be difficult or impossible to search, cull out, and redact emails containing potentially private student data in the open-records request window. This means any resident of the state (including the press, a political organization, or a student's parent) could gain access to faculty emails with sensitive information. Assuming, arguendo, that this situation occurred, it risks disclosing protected information to someone who presumably has no legitimate educational interest in it, and would directly violate FERPA. [7] While most states’ open-records laws would shield faculty email correspondence in such an instance, as a practical matter, this example illustrates the need for expanded exemptions to open-records laws in the interest of student--and faculty--privacy. Ultimately, this issue is more than just a student or faculty issue; it is a systemic issue that, sooner or later, all educational institutions (and state legislatures) must address.
[1] Neal H. Hutchens, Jeffery C. Sun, Karen Miksch, Open-Records Requests and Academic Freedom, Chronicle of Higher Educ. (Jan. 10, 2014), available at http://chronicle.com/blogs/conversation/2014/01/10/open-records-requests-and-academic-freedom/. While this trend seems to have increased in recent years, as Dr. Hutchens and his co-authors note, the “weaponization” of open-records laws to harass a speaker or impair an organization’s work was earlier catalogued in a 2006 Journal or Higher Education article. See Michael K. McLendon, James C. Hearn, Mandated Openness in Public Higher Education: A Field Study of State Sunshine Laws and Institutional Governance, 77 J. of Higher Educ. 645 (2006). For a discussion of the response one university faculty has made addressing the problems Dr. Hutchens’ article discusses, see Colleen Flaherty, Protecting Faculty Records, Inside Higher Ed (Jan. 14, 2014), available at http://www.insidehighered.com/news/2014/01/14/ucla-produces-statement-designed-protect-faculty-inappropriate-open-records-requests.
[2] Gene Nichol, McCrory’s Stands Strain His Ties, News & Observer (Oct. 14, 2013), available at http://www.newsobserver.com/2013/10/14/3281798/mccrorys-stands-strain-his-ties.html. To be fair to the Civitas Institute, Mr. Nichol’s criticism verged on the ad hominem--not a great look for a former university president. Id.
[3] See, e.g., N.J. Rev. Stat. Ann. § 47:1A-1.1 (2014); Ohio Rev. Code Ann. § 149.43(A)(5) (2014).
[4] See, e.g., Ga. Code Ann. § 50:18-72 (35) (2014).
[5] CJ Ryan, Private Eyes: FERPA and Student Data Security Breaches, The Edjurists (Apr. 2, 2014 at 8:50 pm), available at http://www.edjurist.com/blog/.
[6] See, e.g., Benjamin Herold, Danger Posed by Student-Data Breaches Prompts Action, Educ. Week (Jan. 22, 2014), available at http://www.edweek.org/ew/articles/2014/01/22/18dataharm_ep.h33.html?tkn=LSOFCCaHP3qLAhA8rjypHkxMwnf%2BBfllt9Vy&cmp=clp-edweek. Even critics of the No Child Left Behind Act, Pub. L. No. 107-110, 115 Stat. 1425 (2002), acknowledge that the act promoted a salutatory leap in data collection--generally thought to be a good thing. However, the rate at which data collection has increased since the passage of the act, and more importantly, the kind of data collected, has caused alarm in recent months, particularly among opponents of the Common Core. Perhaps concerns like these prompted a modest response from the U.S. Department of Education on responsible collection of student data through online educational vehicles. U.S. Dept. of Educ., Protecting Student Privacy While Using Online Educational Services: Requirements and Best Practices, Feb. 2014, available at http://ptac.ed.gov/sites/default/files/Student%20Privacy%20and%20Online%20Educational%20Services%20%28February%202014%29.pdf.
[7] 20 U.S.C. 1232g(b). As a result of this federal statute’s requirements, some public postsecondary institutions explicitly discourage or altogether disallow their faculty and staff members’ posting protected student information in email correspondence, but as the statue does, carve out an exception for records kept in the sole possession of the record’s creator. Compare Office of the Registrar, Preserving Student Privacy, Univ. of Cal. Davis, available at http://registrar.ucdavis.edu/faculty-staff/privacy/ (containing in pertinent part: “Students have a right to access most information in the records that the University maintains about them, including e-mail messages between faculty or staff that refer or relate to them. Knowing that a student might read your e-mail message later, keep your e-mail messages focused on facts and try to avoid communicating subjective judgments.”) with Univ. Registrar, FERPA Guidelines for Faculty, Staff, and Students, Univ. of La. Monroe 5, available at http://www.ulm.edu/registrar/ferpa.pdf (strictly prohibiting: “[t]he transmission of grades electronically (e-mail) to any party, including the respective student . . . even at the student’s verbal or written request. Such transmissions could result in a privacy violation because they may not be secure and could be retrieved by an unauthorized party.”).