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Open Records Threaten Disclosure of Faculty Work
Most states have public records laws that protect the right of citizens to know what their government is doing. Many states also have "sunshine" laws that require meetings of governmental bodies to be open to the public. In theory, these laws contribute to the strength of a democratic society. But in some states they threaten to expose to public scrutiny faculty research data, personnel records, and other information professors consider confidential.
The New Jersey legislature is considering an open records law with almost no exemptions; it treats almost every record generated by a public employee as a public record. Ohio and Oregon specifically include tenure and promotion files and personnel information in their definitions of public records. And other states have laws that permit interference with research. In Georgia and Minnesota, for example, state institutions have been unable to protect researchers from harassment by individuals or companies that oppose the faculty members’ investigations. For details, go to <www.aaup/ org/foiandex.htm>.) In still other states, it is unclear how open records laws affect work that could be copyrighted or patented by faculty members at public institutions.
Now in Tennessee the legislature is studying the application of the state open records law to electronic communications. For the time being, the legislature has directed all public agencies to warn state employees that e-mail may be considered a public record. "What we’re seeing in Tennessee," says Ruth Flower, director of the AAUP’s Government Relations Office, "is a convergence between the growing public interest in open government and public accountability and a rapid increase in the use of electronic communications."
According to Flower, the application of open records laws to such communications raises questions for professors. If, for example, e-mail messages are state records under Tennessee law, what happens to privacy in the classroom when the classroom is an online chat room? Are a student’s comments available as a public record, perhaps years later? Are the professor’s course outline and posted materials public records? Can a commercial agency, or a faculty member at another institution, copy the syllabus and materials and use them?
Many states are altering their public records laws to keep up with changing technologies, reports Flower. "Prudent faculty members will want to monitor their legislature’s activities on this issue and inform their legislators about the potential impact of overly broad disclosure laws on education and research." The Web site of the Reporters’ Committee for Freedom of the Press <www.rcfp.org/tapping/ index.cgi> has information about state open records laws. Concerned faculty can also contact the AAUP’s Government Relations Office for assistance.
Flower advises professors to research the following questions: (a) Is a college or university covered by the state open records law? If a community college is chartered by the county, is it also covered? (b) Are there exemptions for specific types of work, such as that carried out at clinics? (c) What is a record? If a record must be "in the possession of" a state agency, are materials in the possession of a faculty member included? (d) Are materials posted on an institution’s electronic communications system considered to be "in the possession of" the institution? (e) Do the exemptions for students include student communications, course materials, and the like, or are they limited to grades, test scores, and so on? (f) Does the law permit public access to research data? If so, under what circumstances? (g) Are copyrightable or patentable works protected or exempted?
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