FOIA Abuse Could Become a Serious Problem for Academics
Academics take heed: if you are employed by a public university, the contents of your email account are subject to the Freedom of Information Act. This means activists, critics, or any member of the public with an axe to grind can request copies for a nominal administrative fee and quote-mine them for anything that could potentially be seen as damaging to your research, career, or personal life.
ClimateGate may be the best known example of researchers’ private emails being made public in order to undermine their research, and although that particular example was precipitated by a hack rather than a legal request, there is nothing preventing similar scenarios occurring via perfectly legal means. To name one recent example of this phenomenon, the so-called “Food Babe” Vani Hari has already issued two FOIA requests against University of Florida professor Kevin Folta in what seems like a transparent attempt to find “damaging” quotes she can then use to further her anti-GMO political agenda. Skepchick network contributor Kavin Senapathy wrote about another example here, in which Michelle McGuire of Washington State University was subjected to a FOIA request by anti-glyphosate/anti-GMO activists after conducting a study on glyphosate in breast milk (read about Kavin’s own experience with FOIA here).
While I am 100% in favour of transparency when it comes to the actions taken by government employees in the execution of their jobs, I find the notion of applying the FOIA to university professors to be troublesome for a number of reasons. While professors at public universities are technically government employees in a position of public trust, it seems to me that the principle of academic freedom should apply not only to what researchers do and say in the public sphere, but also the manner in which they choose to communicate their ideas to the public. It should come as no surprise to anyone that speakers hold public and private modes of communication subject to different standards when it comes to clarity, formality, and many other context-dependent aspects of language. Changing the audience (and therefore the context) for certain speech acts will pretty much inevitably lead to misunderstandings, and denying researchers the ability to use private or informal modes to communicate with one another would almost certainly have a chilling effect on research.
Furthermore, in my personal experience university faculty are much more likely than other kinds of employees to use their “work” emails as their primary email addresses for all forms of electronic communication, even when such communication is not work-related. For many of us, the unusual nature of academic work means that our institutions often become intimately bound up with our personal identities in addition to our professional activities. And this personal identification is certainly not limited to faculty, if the popularity of college athletics and alumni email addresses among former students are any indication.
Speaking of students, it is unclear at this point whether student accounts are also vulnerable to FOIA requests. While student records and information are protected by FERPA, it seems likely that non-protected information on university servers would also be considered to be “owned” by the university and therefore subject to request. Students employed by the university in any capacity–whether they be grad students teaching courses or undergraduates doing work-study in the library–could probably also be interpreted to be public employees from a strict legal standpoint.
Legal situations also differ in different countries. According to this analysis, legal decisions in Ontario and Alberta currently protect Canadian faculty’s emails from disclosure under the Access to Information Act, but UK faculty might find even their private emails subject to public disclosure.
At this point I would highly encourage all academics to avoid using their institutional email addresses for any private or sensitive purposes, and even to take informal research discussions elsewhere if you have any reason to think that your work might have potential to incite controversy or attract harassment. Even when you have nothing to hide, an inelegant turn of phrase made public can still cause a lot of trouble.
Obvious disclaimer: I am not a lawyer and this is not legal advice.
Featured image: Flickr user Restricted Data