April 8, 2011

A national debate is underway over the use of open-records laws to seek documents from professors at public institutions of higher education. A Post editorial this week criticized our organization, the Michigan-based Mackinac Center for Public Policy, suggesting that we meant to chill academic freedom through a state Freedom of Information Act request that we filed with three public universities. The evidence shows that The Post has erred, but the general rush to judgment about the use of open-records laws with public universities illustrates why defending the laws remains as challenging and important as ever.

Our request involves the labor studies centers at Wayne State University, Michigan State University and the University of Michigan. We seek department members’ e-mails on labor-related events, including the Wisconsin showdown over public-sector unions and a new Michigan law with controversial labor provisions for local governments in financial distress.

Our inquiry was prompted primarily by a history of activity at Wayne State that seemed inappropriately political — and perhaps illegal — for a state educational institution. Until this week, the Web site of the university’s Labor Studies Center said that the department has “produced a comprehensive guide for activists for organizing living wage campaigns” and offered a paper on “Understanding and Preventing Privatization” of government services. It helped workers “research” their employers through numerous links to such online resources as the “Dirt Diggers Digest” and the Strategic Action Center, an organization “designed to assist progressive organizations with . . . campaign needs.”

That this use of a state university’s resources is questionable is as clear as it would be if the Web site were “designed to assist Tea Party organizations with campaign needs.” In fact, the problem appears clear to Wayne State. Since our public discussion of the Web site on Monday, Wayne State has removed the material.

In February 2010, we published a piece about Wayne State’s actions in our online periodical. After our article appeared, the university moved the Web pages to which we’d hyperlinked. But others raised questions even earlier: In 2005, the Michigan Chamber of Commerce filed a campaign finance complaint against the WSU labor center for allegedly employing university resources to support a ballot measure to raise Michigan’s minimum wage.

So we had a chance to return to a long-standing story with the eruption of the high-profile union disputes in Wisconsin and Michigan. The Michigan battle gained an even higher profile after journalist Rachel Maddow criticized the Michigan legislation in a much-discussed clip. Hence, our Freedom of Information Act inquiry requested e-mail references not just to the Wisconsin and Michigan labor disputes but to Maddow as well.

Ours was not an inquiry about what professors “might think,” as The Post alleged, or a vast fishing expedition. We focused on three major public universities, and we chose search terms aimed at detecting political activism using public university servers — actions that can be illegal under Michigan law.

Is it possible to imagine open-records requests that are abusive? Yes. But it is important for policymakers and the public to recall that there are checks on broad, hostile and purely speculative inquiries. Open-records laws in Michigan and elsewhere provide numerous protections for government workers’ private and proprietary information. Moreover, public agencies can typically charge for the time and cost of producing the requested materials, which can make even targeted requests expensive to file.

Then there are the due-process protections in the courts. Parties whose inquiries are denied must file suit if they hope to prevail, an expense with no guarantee of success. A recent Michigan Court of Appeals decision has read the state’s open-records statute so narrowly that the law’s effectiveness is in doubt, prompting the Mackinac Center and the Michigan Press Association to file a joint friend-of-the-court brief appealing the case to the state Supreme Court.

Public universities in Michigan and elsewhere together spend billions of dollars annually. Professors and other university employees know there are constraints on spending this money, including prohibitions on political activity. Such rules are similar to those that private-sector employees face at work every day.

Nevertheless, professors, like public officials, may feel “harassed” when they are subject to inquiries. In some cases they may have a point, but the premature questioning of filers’ motives risks turning open-records requests into a popularity contest. In a time when popularity varies dramatically across partisan lines, this approach endangers political support for open government and encourages public universities to devolve into political action committees.

Joseph G. Lehman and Thomas A. Shull are president and senior editor, respectively, for the Mackinac Center for Public Policy, a research and educational institute in Midland, Mich.