Memo on Public Records Harassment and Defense

The Middle East Studies Association has learned of a disturbing trend in higher education that is increasingly affecting MESA members. The targeting of academics at public universities who study controversial topics with public records requests seems to be accelerating and has affected a broad array of researchers. Climate scientists, tobacco researchers and epidemiologists whose research areas cast an unfavorable light on profitable industries have faced campaigns led by corporations and activists that abuse open records laws. The goal in many of these cases is not transparency, but harassment.  Corporate interests and their political allies force public university researchers to waste hundreds of hours complying with requests.  The researchers are subjected to public embarrassment as their private correspondence and sensitive information is made public. These same tactics are now being used against academics whose work or activities touch on topics related to the Middle East that are deemed controversial by some. This has been especially true for those whose research, scholarship or teaching concerns Israel and Palestine.

Open records laws are meant to advance citizens’ rights to information about how public decisions are made. Protecting the right to freedom of information is essential to preserving channels for democratic accountability. The federal 1966 Freedom of Information Act (FOIA) and state laws governing access to public records across most of the country are critical to ensuring citizens’ rights. But using these laws to intimidate academic researchers, disrupt their work or suppress lines of academic inquiry is not what public records access is intended for and amounts to an abuse of these laws.

With the introduction of new technologies, conversations that once occurred in person or by phone now generate a permanent written record. When such emails or messaging are subject to disclosure, the privacy most academics expect in their conversations with colleagues and students is compromised for those working at public universities. The result is a chilling effect that undermines the frank exchange of ideas and constructive criticism that are essential to the pursuit of knowledge and academic freedom. Such a chilling effect may well be the purpose of abusive public records requests. Indeed, the goal may be to dissuade scholars from working on politically contentious topics.

Abusing public records laws to chill academic inquiry on topics deemed controversial violates the public’s fundamental interest in protecting free inquiry and in fostering innovative research at the nation’s public universities.

MESA believes it is crucial for academic institutions and individual scholars to respond to public records requests in ways that protect individual privacy rights and the academic freedom of scholars while complying with the law and respecting the public’s right to information. Some state public records laws allow public universities to exempt records when they determine that disclosing the records would do more harm than good to the public interest. Such exemptions may in many cases cover private correspondence or academic work product of scholars researching issues that are the subject of contentious public debate.

Because the abuse of public records laws is a relatively new phenomenon, universities and scholars targeted by such requests may not be prepared to address them. Thousands of hours of time and effort may be expended in responding to overly broad requests unless proper procedures are in place to guide institutions and individuals about what should be disclosed and what may be protected. Serving the goals of government transparency can and should be consistent with protecting research and scholarly inquiry that is critical to the academic mission of world-class public universities.

Academic associations, like the Union of Concerned Scientists, individual universities, like the University of California and organizations spanning the ideological spectrum (from Foundation for Individuals Rights in Education to the Climate Science Legal Defense Fund) have begun to offer guidance and statements to help protect the privacy of scholarly communications and the academic freedom of researchers while complying with public records laws.

The report and state-by-state guide from the Climate Science Legal Defense Fund is a good starting point to understand the context and the basic parameters of the open records law in your state.

If you are a MESA member and believe that you have been targeted with an abusive public records request, please contact us at tfchr@mesana.org for additional information.

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