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Legal Watch: Let the Sunshine In?
By Donna R. Euben
State Open Records Laws
The balancing of the public's "right to know" and an individual's right to privacy is constant in the academic community. As the AAUP's Access to University Records statement points out, "While access confers benefits, it also carries costs and potential dangers, many of which apply with special force to an academic community." Under state freedom-of-information laws, often called "open-records" laws, key terms relevant to the academic community are defined and interpreted differently: Is a college or university a "public agency"? Is a particular document a "public record"? When is a record "in the possession of" a state agency, and are materials "possessed" by faculty members included? (There is also the federal Freedom of Information Act, and some courts have recognized a state "common law right" to gain access to public documents.)
State courts have issued decisions relating to the rights of for-profit entities to access educational information, including course textbook lists created by faculty. In November 2001, for example, a state appellate court ruled that if public university professors in New York maintain written course textbook lists, that information must be shared by the school with off-campus bookstores that compete with the university's own bookstore: "[F]aculty members [who maintain such records] . . . are employees of [the university] and assist in fulfilling respondents' educational mission by informing students of the material that they need to purchase for their course work."
Some state open-records laws allow for the disclosure of certain personnel records. The Ohio Supreme Court ruled in 1994 that William Calvin James, an assistant professor of geological sciences at Ohio State University, was entitled to access to other professors' tenure and promotion files and to his own unredacted tenure dossier, which were maintained by the university, under its open-records law. The court rejected the university's arguments that tenure files were protected under the confidentiality exception to the state law because that exception applied to law enforcement records only. The court also found that academic freedom was not implicated because "the issue is not whether the university is permitted to decide on academic grounds who receives promotion and tenure, but whether the records of those decisions are public records."
Yet a Connecticut state court ruled in 1995 that a professor's personnel file, including the documents regarding her tenure denial, might be exempt from the disclosure requirements under state law. In a suit by Bonnie Handler, a professor in the School of Education at Central Connecticut State University, against her dean and another professor, Handler asserted that her privacy was violated by her colleagues' disclosure to others that she had been denied tenure. She had been informed that she was denied tenure because of "budgetary concerns" and was promoted because of her high academic achievement. The court found that under the faculty collective bargaining agreement and state disclosure law, the professor had an argument that "the disclosure of internal, personnel evaluations for tenure would constitute an invasion of privacy."
In 1999 a Wisconsin appellate court ruled in an unpublished opinion that the University of Wisconsin had to disclose to media outlets copies of the personnel records and investigation files compiled by the administration in response to a sexual misconduct claim filed against a tenured professor of mass communications. The court opined that the professor's privacy interests were outweighed by the public's "substantial interest in student-faculty relations at our state universities, the manner in which school administrations handle student complaints against faculty, and the enforcement of university rules."
Lastly, under some state public-records laws, curriculum materials may constitute a "public record" that is subject to disclosure to the general public. In a 1993 decision, Russo v. Nassau Community College, New York's high court ruled that a film and filmstrip used in a human sexuality course were a public record under state law. The court rejected the professor's contention that the forced disclosure of the course materials would "promote a 'chilling effect' upon the College's academic freedom in violation of [the professor's] First Amendment rights."
As a general trend, then, at least since the 1990s, courts tend to lean toward more, not less, access to "public records." To avoid unpleasant surprises, professors and administrators should be aware of whether their communications, including electronic communications, are covered by disclosure laws.
Donna Euben is AAUP counsel.
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