April 3, 2011

TRANSPARENCY IN government is important. Freedom-of-information laws are key to assuring it; they offer citizens a vehicle for finding out what their government is doing. But freedom-of-information requests can also be used in abusive ways, to intimidate political adversaries and chill free speech. That risk is especially high with open-records requests involving professors at public universities. By dint of their employment, these scholars are subject to open-government laws. By virtue of their educational roles, such requests can pose a particular threat to academic freedom.

That threat is unfolding in Wisconsin, where the state Republican Party has filed a freedom-of-information request involving William Cronon, a history professor at the University of Wisconsin at Madison. Mr. Cronon, the incoming president of the American Historical Association, wrote a post on his personal blog about the likely role of the American Legislative Exchange Council, a conservative group, in encouraging the efforts of Wisconsin Gov. Scott Walker (R) to restrict public-employee unions. Two days later, the university received a request under the Freedom of Information Act seeking e-mails to and from Mr. Cronon’s university account that mention “Republican, Scott Walker, recall, collective bargaining . . . rally, union” and related phrases and political figures.

In a statement defending the action, the state party’s executive director, Mark Jefferson, decried the “concerted effort to intimidate someone from lawfully seeking information about their government.” But Mr. Jefferson’s statement ignores the important difference between an ordinary public official and a professor who happens to be paid by the state. The better argument was made by the American Historical Association. It noted that historians “vigorously support” open-records laws but that the law was being misused “to find a pretext for discrediting a scholar who has taken a public position. This inquiry will damage, rather than promote, public conversation. It will discourage other historians (and scholars in other disciplines) employed by public institutions from speaking out as citizen-scholars in their blogs, op-ed pieces, articles, books, and other writings.

Now, a conservative-leaning Michigan think tank, the Mackinac Center for Public Policy, has launched an even broader fishing expedition. According to the Web site TalkingPointsMemo.com, the group filed freedom-of-information requests with three Michigan universities with labor relations departments, seeking e-mails from all labor studies faculty relating to the union battle in Wisconsin, Mr. Walker and MSNBC host Rachel Maddow.

All this is disturbingly reminiscent of the misguided effort by Virginia Attorney General Ken Cuccinelli II to subpoena documents and e-mails relating to former University of Virginia climate science researcher Michael E. Mann. The university has wisely resisted, and the Virginia Supreme Court agreed last month to hear the dispute. In both situations — Mr. Cuccinelli’s abuse of his prosecutorial subpoena power and the Wisconsin and Michigan groups’ abuse of their right as private parties to employ the public-records law — the risk is the same: scholars being targeted because of what they think or, in the Michigan case, might think. This tactic is deeply disturbing. It must be vigorously resisted.