Wisconsin: Another Case Pits Freedom of Information Against Academic Freedom

April 20, 2011

Can freedom of information ever be its own enemy? The conservative political movement currently tying Wisconsin in knots may have committed a stroke of genius in asking for a professor's e-mails. Or not. The "genius" part is yet to be determined.

Prof.  William J. Cronon, at the University of Wisconsin, is fairly described as one of the most profound and respected scholars of the role the environment has played in American history and culture. Cronon is past president of the American Society for Environmental History and president-elect of the American Historical Association.

A top Wisconsin Republican party official on March 17 filed a request under the state's freedom-of-information law for emails written by Cronon relevant to the political fracas in which Wisconsin's GOP Gov. Scott Walker sought to divest the state's public employee unions of their bargaining rights. The request followed almost immediately after a March 15 post by Cronon on his personal blog about the American Legislative Exchange Council, an anti-regulatory group that lobbies state legislatures.

Through the request, Wisconsin's GOP was in essence arguing that Cronon had violated rules against using university resources to influence elections -- and seeking evidence to prove what it was convinced of. But Cronon, the university, and others said the request violated a longstanding tradition of academic freedom, going back long before the McCarthy era.

The GOP move in Wisconsin was similar to one in Virginia, where that state's Attorney General Ken Cuccinelli, who does not believe in manmade climate change, sought emails from scientist Michael Mann, formerly of University of Virginia, who does believe what the evidence tells him. Cuccinelli is pressing his inquiry despite the fact that Mann has been cleared several times by independent panels of the "fraud" insinuations Cuccinelli claims he is pursuing. After having been laughed out of lower-level state courts, Cuccinelli has now put his case before Virginia's Supreme Court.

The University of Virginia rejected Cuccinelli's demand for documents (which was not technically filed under the state's open-records law) outright. The University of Wisconsin, on the other hand, did not contest the legality of the GOP's FOI request. This may have been their own stroke of political genius. Wisconsin complied with the request, but withheld a substantial portion of the requested emails saying that they were exempt from the state's FOI law on various grounds (including academic freedom).

At this point few people know for sure what fraction of the requested emails actually went to the GOP, but observers believe it was a small fraction. From a freedom-of-information perspective, the University of Wisconsin may have succeeded in presenting a glass that was simultaneously half-empty and half-full.