WI Republican Party uses open records law to intimidate its most moderate critic

by Harry on March 25, 2011

My colleague Bill Cronon tells his story here. This part particularly struck me:

A number of the emails caught in the net of Mr. Thompson’s open records request are messages between myself and my students. All thus fall within the purview of the Federal Educational Right to Privacy Act (FERPA, sometimes known as the “Buckley Amendment,” named for its author Senator James Buckley—the brother of conservative intellectual William F. Buckley). The Buckley Amendment makes it illegal for colleges or universities to release student records without the permission of those students, and is thus in direct conflict with the Wisconsin Open Records Law and Mr. Thompson’s request on behalf of the Wisconsin Republican Party. I don’t know whether Mr. Thompson intended his request to generate a wholesale release of student records, but I myself think that doing so would represent a dangerous intrusion on student privacy. I’m pretty sure the law supports me in this view. If you’d like to review the terms of FERPA, see

http://www2.ed.gov/policy/gen/guid/fpco/ferpa/index.html

and

http://www.access.gpo.gov/nara/cfr/waisidx_04/34cfr99_04.html

A crucial point Cronon makes later is that without confidence in confidentiality many correspondents might either not email, or be less than frank in their emails. I could live with that when it comes to other adults. But my fear is that students, especially perhaps those who most need to break their silence, would refrain from emailing faculty about personal matters. I have been meaning to post for a while on a related issue, which is the very unusual character of some email correspondence between students and faculty—I have had interactions that I would not have had any other way, and therefore not at all prior to email. But on Cronon’s topic: I have emails from students which are deeply personal, expressing worries and sometimes telling experiences under an assumption of complete confidentiality. Sometimes they express ideas that they would not feel comfortable expressing in class, and which constitute some sort of “thinking out loud”. I have total confidence that without this way of communicating with me at least one student would by now have dropped out of college and probably worse, and I’m certain that others would have foregone considerable benefits. And if it were widely known, as it will be if the Republican Party gets hold of Cronon’s records, that no professor, and especially no professor who gets on the wrong side of a legislator of either party, can guarantee confidentiality, many such correspondences would not happen, to the detriment of the students and, at least in my case, the faculty (though the latter should not really count much in the calculation). The worry I have actually remains whether or not FERPA protects the emails of students (which, like Cronon, I’m pretty sure it does) because when they hear a story like this what they hear is “open records” “all emails” etc, comments like Cronon’s and my “pretty sure”, even if they are noticed, are not wholly reassuring. (Given that neither of us are lawyers, even “absolutely certain” would be cold comfort, especially from someone who thought Green Day come from Milwaukee).

Cronon is a moderate—I don’t know him, but have read his work and seen him talk—there is no question that he is sincere in his claim to be an independent.

It is not inconceivable that this is the beginning of a large fishing expedition triggered by the Carlos Lam affair. (Question: is this the end of Carlos Lam’s political career? Have prominent Republicans in Indiana started condemning him yet?)

Update
: this is everywhere now. Here’s Krugman. Follow his link to Richard Vedder which seems to have nothing to do with whoever that is, but is riveting nevertheless)
Further Update: Our Chancellor comments.
Yet Another Update: Stephan Thompson, enigmatic man of mystery (thanks Kris).

{ 61 comments }

1

'stina 03.25.11 at 4:30 pm

FERPA likely would supersede the local open records law, and the student communication would remain protected from public disclosure. However, someone would probably need to look at the e-mail first to determine that it is a FERPA document rather than a document subject to disclosure, so complete confidentiality cannot necessarily be assured. There was a recent ruling, though, that the university could choose to forgo federal funding, therefore making FERPA inapplicable, but I think it’s a very narrow ruling. (http://chronicle.com/article/Ferpa-Does-Not-Prohibit-U-of/126672/)

I’m more familiar with Texas’s open records law, but there are numerous exceptions, including fleeting correspondence, purely personal documents, attorney-client privilege and health information.

I am aware of similar requests to the one made by the Republican party at other state institutions of higher education. Those requests were less for political reasons than personal, but nonetheless they have been “all e-mail correspondence” type requests, sometimes with date parameters, sometimes without. It usually takes days, if not weeks or months for the legal office to sort through the documents and determine which documents must be disclosed and which cannot in those sorts of requests.

2

Fred 03.25.11 at 4:50 pm

3

Hook 03.25.11 at 4:51 pm

Being the paranoid sort, I’m glad that I’ve switched over to my personal email for any correspondence of a personal nature, even if work-related.

Many professors use their .edu address for absolutely everything–many people use their work emails this way. I’m not entirely sure whether my personal email address is protected but I think it might be.

4

Hook 03.25.11 at 5:01 pm

Another thing to think about is how this is a very effective tactic of intimidation. If it goes through, won’t you think twice about your political speech if you work in a public university?

5

Sev 03.25.11 at 5:12 pm

6

Sufferin' Succotash 03.25.11 at 5:12 pm

Where I teach instructors and students are REQUIRED to communicate via work email. But hey, that’s OK because the America-hating James Buckley made it possible to protect students’ academic privacy rights.

7

Sev 03.25.11 at 6:13 pm

And now Krugman has weighed in: http://krugman.blogs.nytimes.com/2011/03/25/academic-intimidation/

Fallows briefly compares the tactics to what he sees in Beijing. Libertarians, totalitarians; Hu knew?

8

Margaret 03.25.11 at 6:14 pm

William Cronon seems to have been an unfortunate choice from the point of view of the Republican party to lean on, both because he tells us he is extremely careful about keeping his work-related and his other emails separate, and because thanks to this brou-haha, the American Legislative Exchange Council is fast becoming a household word, precisely apparently what the Republicans were trying to avoid. Let’s hope that the rest of us working on state-owned computers using university email have been equally careful.

9

Harry 03.25.11 at 6:51 pm

I think Cronon is a triply-unfortunate choice, actually, Margaret. I think there is a small number of people here whose email collections may be genuinely embarrassing (it would be surprising if not; any large organisation has them): but Cronon’s will certainly reveal that he is what he says he is – an independent and a moderate — I’m sure he has voted for candidates from each party in the past, eg. His public writings and public persona certainly give this impression, whereas the public writings and public persona of some other faculty members don’t. (I don’t really know about mine — I’ve been fairly straightforward about what I think about this issue, but I am publicly equally straightforward about what I think about other issues, especially education policy, on which I am difficult to pigeonhole and definitely not someone who strongly favours Democratic over Republican policies. On the one hand you might think that by picking on him they expect to silence just about everybody, on the other you might think that after picking on him and finding nothing they will understand the PR costs of going after someone else. I suspect they don’t know who he is, but, really, a 5 minute use of google could have told them this was a bad bet.

10

Barry Freed 03.25.11 at 6:58 pm

I suspect they don’t know who he is, but, really, a 5 minute use of google could have told them this was a bad bet.

Why bother googling? He’s an academic, and therefore a raging, howling at the lefty. Foul ups like this are to be expected when one believes one’s own propaganda.

11

Tom T. 03.25.11 at 7:17 pm

FERPA would be satisfied by redaction of individually identifying information, wouldn’t it?

12

The Raven 03.25.11 at 7:24 pm

Sympathies to your colleague.

The Wisconsin GOP, unsurprisingly, is sticking to its guns. Cronon has this remark in response, quoted over at Talking Points Memo:

I had naively hoped that the Republican Party might be receptive to a moderate, fair-minded, well-reasoned appeal on my part. [...] I had honestly hoped for a more thoughtful response from them.

I think Cronon is about to become much less moderate, very quickly. I hope he survives this attack: the resources the Wisconsin radical right has at its disposal make it possible for them to do him a great deal of harm.

By the way, Talking Points Memo is front-paging the dispute.

13

Barry Freed 03.25.11 at 7:24 pm

uh, that should have read “raging howling at the moon lefty.

14

Warren Terra 03.25.11 at 7:33 pm

There was a Supreme Court case at least ten years ago to the effect that you have no right of privacy using employer-provided resources, including email. A lot of professors indeed use their .edu address for personal business – for one thing, they tend to have a higher regard for their employers’ benevolence than in private industry, and many believe in the tenure system’s promises of Free Speech – but it’s pretty clear that they are playing with fire by doing so, should they ever develop any real enemies. And it can be very hard to implement a strict business-only rule when it comes to email: I (who won’t be a professor for several years yet, and that only if I’m very lucky) mostly use my .edu address for academic business – but I also use it for friendly chatter within my research lab, and beyond that other people know several of my addresses, and are wont to send me personal emails to my .edu address instead of a more private address. Presumably such incoming emails could render me liable despite my best efforts.

Beyond even that, when I’m at work the university is my ISP. I can use a privately owned computer (and, indeed, do so) and use a private email provider – but couldn’t a dedicated enemy put a tap on the router, potentially with full legality and indeed backed by Open Records?

Thing is, in academia people don’t necessarily distinguish between their work and personal lives very well. I grew up in an academic household, and my parents had students, colleagues, and visiting speakers over for dinner or for a weekend afternoon outing every week or two. My father was at the university for long but sometimes irregular hours, and spent many more hours at home working in his office. The two realms bleed into one another in the academic lifestyle, and it’s a risk. For example, I know of an extremely distinguished (but not very likable) professor who developed enemies and was threatened with criminal charges because his administrative assistant, employed by the university but paid by his research grants, handled his schedule – that is, not only his duties at the university, but also his private consulting work and related travel. There are a lot of pitfalls out there, once people with an official position are looking for your scalp.

15

Margaret 03.25.11 at 7:34 pm

Dave Weigel at Slate has this account of the response he received from the WI GOP:

http://www.slate.com/blogs/blogs/weigel/archive/2011/03/25/wisconsin-gop-blasts-concerted-effort-to-intimidate-over-request-for-professor-s-e-mails.aspx

It’s my belief that you cannot access anything on the web today with the possible exception of cooking blogs that does not reference this matter. Talk about going viral.

16

tomslee 03.25.11 at 7:34 pm

FERPA would be satisfied by redaction of individually identifying information, wouldn’t it?

I suspect you are right (although I’m no expert on FERPA), but the idea of preserving privacy by removing personally identifying information is becoming obsolete. An excellent article by Paul Ohm, here (gated) and available elsewhere by googling the title, is worth reading on the topic.

If I were a student and I knew the Republicans were after scandal, I would not trust to removal of PII to preserve my privacy.

17

tomslee 03.25.11 at 7:38 pm

Oh yes, and this kind of case is one reason I have little time for the O’Reilly Open Data initiative and “Gov 2.0″. See Michael Gurstein in First Monday on Open Data, Empowering the Empowered, or Effective Data Use for Everyone.

18

I Have Been There 03.25.11 at 7:52 pm

Having had my own e-mails subpoenaed for a court case, I can attest that all personal emails of oneself and any student can be eliminated if one wishes. In fact the whole process is essentially one of following the honor code and releasing what one deems pertinent. I took the policy of releasing virtually everything that might be pertinent, since I thought the case being put against the university was total bullshit. But one could easily pull an Oliver North and shred away. But I wouldn’t worry about student confidentiality.

19

SamChevre 03.25.11 at 7:55 pm

I’m in the web minority here; I’m in general in favor of open records/FOIA, and do not see that this case is any more problematic than most. (OK, this is probably affected by the local goings-on, in which the wingnuts* asked for and received copies of police operating manuals, which the police now want to get back.)

*Not a pejorative, a name; the group is the Wingnut Anarchist Collective. They are informally associated with the Flying Brick Library, which is less than a block from my house.

20

The Raven 03.25.11 at 8:02 pm

It’s worth remembering, also that the attack on Prof. Cronon is probably due to his public discussion of ALEC, which is a national political organization. I do not think this is the Wisconsin State Republican leadership behind this. And if you don’t know what ALEC is, and want to find out, I know no better place to start than Cronon’s post that triggered this massive over-reaction.

21

Warren Terra 03.25.11 at 8:16 pm

Sam Chevre, I’ve seen you commenting quite a bit, and generally find you to be very thoughtful. Thus, I’m really rather befuddled by your comment here. Do you not see the difference between, on the one hand, someone’s email account, which they may have used for all of their personal and family emails as well as their work emails (this is not terribly uncommon in the workplace, and especially in academia), and which outside of the purely personal will presumably contain emails to and from long-time colleagues who are also personal friends, possibly mixing business with private matters, and highly private official business relating to a few individuals (such a students on colleagues); and on the other hand impersonal operating manuals written for official, if limited, distribution?

I realize that your “more problematic than most” disclaimer may mean a great deal more than initially appears, that you may take seriously the issues involved but don’t think this is an exceptional case of those issues. But if so, I’m not sure that impression gets through in your comment, and in any case I’m not sure I’d agree with it.

22

dbk 03.25.11 at 8:34 pm

Professor Cronon’s thoughtful and dispassionate blog post yesterday (24/3) concluded with a reference to another landmark academic freedom case involving economist Richard Ely. For commenters who (a) have read Cronon’s own post(s) and (b) might be interested in reading something of Ely’s, I happened to come upon the following last week while preparing for a planned visit to Pullman, Illinois in late May: http://www.library.cornell.edu/Reps/DOCS/pullman.htm. Ely is a thoroughly compelling writer, and his (equally thoughtful and dispassionate) critique of Pullman, written shortly after its construction was completed in 1885, was remarkably prescient.

On a different note, is it really possible that no one glanced at Professor Cronon’s bonafides? He is inter alia the President-Elect of the AHA …

To mimic the inestimable phrase of Brad DeLong (who has a fine piece up today on Adam Smith’s TMS: http://delong.typepad.com/sdj/2011/03/is-adam-smith-partly-an-economist-or-wholly-a-moral-philosopher.html), “That is all”.

23

mds 03.25.11 at 8:41 pm

Margaret @ 15: Wow. I’ve been exposed many times to “I’ll stop calling this crew ‘Orwellian’ when they stop using 1984 as an operations manual,” but that really takes the cake. Criticizing the Wisconsin Republican Party for targeting a college professor, or even enquiring about their actions, is a “concerted effort to intimidate.” The response Weigel got contains more projection than a sixteen-screen cinema:

I have never seen such a concerted effort to intimidate someone from lawfully seeking information about their government.

The party that controls the WI state legislature and the governorship is seeking information about their government the only way they know how. By going after a history professor who apparently runs the state from some stormswept lair.

Taxpayers have a right to accountable government and a right to know if public officials are conducting themselves in an ethical manner.

No, seriously, a Wisconsin Republican wrote that.

We look forward to the University’s prompt response to our request and hope those who seek to intimidate us from making such requests will reconsider their actions.

Oooh, those union thugs were already scary enough. Now they’re being joined by blogging history professors and journalists, who are thereby attacking the principle of open government by … questioning an attack by a political party with majority legislative status upon an individual citizen. The rabbit hole has just fallen down another rabbit hole.

Too bad Mr. Bellmore isn’t around at the moment to lecture us all on the dictionary definition of chutzpah.

24

Katie 03.25.11 at 8:50 pm

When I was in grad school, I wrote to several of my professors explaining the details of a family tragedy so that they would understand why I was going to be missing class. I would be furious if those emails and their responses were shared with a third party. This is very upsetting. It’s not just professors who “might have something to hide,” clearly these GOP bullies aren’t thinking of the students who may have shared personal things with their teachers.

25

I Have Been There 03.25.11 at 8:54 pm

Note to The Raven: Thanks for that very sound point. This incident illustrates the vulnerability even of middle-of-the road, intelligent, consensus-seeking, centrist types like William Cronon who rue Republican bulldozing methods in their state legislature and set out to figure out why things are happening as they are, and in the course of their findings happen to identify the highly centralized and secretive nature of policy-making coordination on the Republican right. No one is safe from investigation. Pretty soon they’ll be saying Cronon is best friends with Bill Ayres. After all, they both have Chicago in common.

26

SamChevre 03.25.11 at 8:58 pm

Warren,

I apparently was not clear.

This case seems to me to be a pretty typical FOIA case–the information provided will either require very careful review (costly and time-consuming), or will publicize information that some people have a legitimate interest in having private (in this case, students and personal associates), or, most likely, both. These are very typical problems with FOIA information. (A quick google gets me this for example.

I do not think that the police manuals case is very similar; I merely mentioned it as a possible source of personal bias in favor of FOIA, as I am friendly with the people involved.

27

Steve LaBonne 03.25.11 at 9:15 pm

The more Republicans and the likes of ALEC resort to thuggery, the more they educate moderates- like Cronon- about the class war going on in this country, in which up to now only one side has been fighting.

28

Lee A. Arnold 03.25.11 at 9:28 pm

This FOIA request is just really stupid, from the Republicans’ point of view. It will end in shedding more light on their dark corners. Indeed the Republicans have been making the same big mistake, in lots of little ways. Their central problem is unavoidable: they have the wrong political model for the future. The Republicans are a top-down organization and their reliable grassroots is perhaps 25% of the population. They have used mainstream media, which is one-way, to promote their ideas without a lot of critical argument, and they have used secretive organizations to aid campaigns and influence legislation, on a continuous basis, since the parallel rise of their 70’s thinktanks to provide the half-baked ideas for public consumption.

But the whole thing is turning over. The mainstream media is quickly losing its dominance to the internet, and the Republican message is going to lose the fight on the internet. Because their arguments don’t stand up to scrutiny, and most of the country doesn’t think the way they do. Most commentary on the internet demonstrates that the U.S. is a centrist country, perhaps even center-left on some issues. The U.S. is in reality a bit more liberal than Reaganism would ever allow. Just go through the comment threads under any looney rightwing op-ed anywhere, in the Wall Street Journal for example — take Sen. Ron Johnson’s despicable characterization of healthcare reform just two days ago. Very few of the comments are sympathetic to him. In short, the Republicans are top-down; they have to control the conversation or else they lose it; Reaganism has intellectually imploded; and their most reliable supporters are the Tea Party. This approach is going to fall apart.

29

Steve LaBonne 03.25.11 at 9:38 pm

From your lips to the Flying Spaghetti Monster’s noodly appendages, Lee.

30

Gene O'Grady 03.25.11 at 9:48 pm

Those who claim that academics tend to merge their work and personal lives more than people in private industry have clearly never worked in executive support in a large corporation. And I’m not not even referring to the guy who got his company car stolen while he was with a hooker in the tenderloin on his lunch hour. (True story, I withhold his name, just noting that it didn’t cost him his job.) And it’s not just the top level people that do this — if anything in my experience academics may be a little more careful, except perhaps the differing conventions with regard to e-mail.

I’m afraid my reaction was to buy one of Mr. Cronon’s books.

31

Lee A. Arnold 03.25.11 at 9:49 pm

I’m a strong pastafarian, especially with a good marinara.

32

Dr. Hilarius 03.25.11 at 9:56 pm

I must disagree with I Have Been There (@18). If the requesting party is not satisfied by voluntarily disclosed material, highly likely in the Cronon case, then everything is sent to a judge for an in camera review. The judge decides what is privileged and what must be released. This is likely to be a very expensive, time-consuming process with motions and cross-motions over the court’s decision.

I can only hope that the university will aggressively litigate the records request. And point out that the request is a frivolous waste of money in a state the Republicans claim to be broke.

33

Harry 03.25.11 at 10:06 pm

The problem with people like Ayers and Cronon is that, despite being given the entirely respectable name William, they insist on using the sinister shortened version, Bill.

34

ben w 03.25.11 at 10:44 pm

So, the bill has been published, apparently, despite the restraining order and instructions from the sec’y of state.

35

Kristen 03.25.11 at 11:47 pm

Question: they can’t publish the contents of his email, correct? Only read them?

As for the remainder of the day in the politics of our fine state of WI…I give up. It seems as if dirty tricks are taking over from sound legislative procedure/policy. ( And yes, I will even bi-partisanly include the fleeing of the WI14 in that category.) What has the world come to?

36

Delicious Pundit 03.26.11 at 12:00 am

Props to Gene O’Grady for a great idea. I always wanted to read his Chicago book, and now is the perfect time to buy it. Call it the Cronon Defense Fund and Self-Education Society.

37

c.l. ball 03.26.11 at 12:09 am

First, the WI GOP request is clearly an intimidation attempt.
Second, it will most likely NOT result in the disclosure of his emails because they are exempt under the statute. Personal correspondence is by definition not a public record. Anything considered to be a draft, a preliminary calculation, or similar data is not considered a public record under the WI statute. Imagine in the Democrats asked for similar information from the governor’s chief of staff; the answer wld be “no”.

The professor’s final syllabus, his exam questions, class handouts, etc are legitimate public records, but his email would not.

Third, Krugman and others here are fools if you think .edu email is any different from any other employees email. Your employer has every right to monitor & review it. If you don’t want your email read, write it on your own equipment & encrypt it.

38

Margaret 03.26.11 at 12:15 am

Miller of the Legislative Reference Bureau has published the law after meeting with Fitzgerald. Miller says the law is not yet in effect. Walker and Fitzgerald say that it is and will now be enforced.

39

Sev 03.26.11 at 1:13 am

“Harry 03.25.11 at 10:06 pm
The problem with people like Ayers and Cronon is that, despite being given the entirely respectable name William, they insist on using the sinister shortened version, Bill.”

In common with the entirely disreputable William of Attainder.

40

Ahistoricality 03.26.11 at 1:28 am

A crucial point Cronon makes later is that without confidence in confidentiality many correspondents might either not email, or be less than frank in their emails.

This is the same defense used by the Bush administration to protect themselves from disclosing meetings with lobbyists. I didn’t find it convincing then, and I’m pretty sure that I don’t find it convincing now, as an argument in isolation. As a component of academic freedom, as a component of educational mentoring, confidentiality is useful and, as such, should be afforded to faculty except when we’re acting in an administrative capacity (admissions and hiring, for example).

41

djw 03.26.11 at 2:22 am

I’m afraid my reaction was to buy one of Mr. Cronon’s books.

Nature’s Metropolis is fantastic.

42

Glen Tomkins 03.26.11 at 2:27 am

Don’t get mad, get even

Are the e-mails of the gov and state legislators subject to FOIA requests? Even if the rules don’t let you go after such high-value targets directly, surely there must be second-stringers on their team whose e-mail is subject to such, who may have written embarrassing things to their high-value targets.

Now, if your idea is that such uses of FOIA are illegitimate and abusive, fine, let’s change the laws to prevent such abuse. But that’s only going to happen after our side is back in power. Until then, we shouldn’t let the class warfare be one-sided.

43

joe koss 03.26.11 at 4:27 am

it seems high past time where someone/thing on the moderate side of Wisconsin’s right needs to call <a href="http://www.youtube.com/watch?v=lSbI8MtuBN0&quot; bullshit", right?

44

Bill Gardner 03.26.11 at 4:54 am

Of interest, there was a failed attempt in the Utah legislature to abolish academic tenure.

45

Jacob 03.26.11 at 5:33 am

The Chancellor’s response seems astonishingly luke-warm. He should think about growing a pair.

46

I Have Been There 03.26.11 at 5:47 am

Kirsten – It may differ in different state laws but in the one I was in they definitely could publish the e-mails obtained through FOIA-style request. And did, in distorted ways, on extremely right-wing sites.

Dr. Hilarious – That’s interesting and fair enough. Pity the poor judge who has to read through everyone’s emails. It didn’t happen in our case, I guess because we were basically open and let it all go out. There was nothing to hide, anyway. What I do retain is the conviction that emails about students’ private circumstances, marks, etc., did not have to go to the requester, and that it is protected.

47

ben w 03.26.11 at 6:24 am

Bill—your link didn’t come through.

48

maidhc 03.26.11 at 8:07 am

The standard of student confidentiality is pretty high in most states. I don’t know about Wisconsin in particular. Faculty are generally not permitted to reveal student grades when writing a letter of recommendation to a potential employer. Instead the student must authorize release of an official transcript.

Professors must expect to receive many emails along the lines of “Why did I only get a C on this assignment, I thought I did better.” Any release of grading information is highly sensitive and strongly protected.

Maybe in the case of the Unabomber the public’s right to know outweighs other considerations, but for the typical student, they should expect a right to privacy in respect to their medical history, sexual history, academic performance and whatever other areas they feel necessary to discuss with their teachers.

This is a principle of ancient origin, and worth fighting to preserve.

49

Barry 03.26.11 at 12:42 pm

I Have Been There 03.26.11 at 5:47 am

” Kirsten – It may differ in different state laws but in the one I was in they definitely could publish the e-mails obtained through FOIA-style request. And did, in distorted ways, on extremely right-wing sites.”

We’re taking about a party which wiped their *sses with a judge’s restraining order, after illegally passing a bill. The e-mails *will* be widely disseminated. I won’t say ‘leaked’, because it will be a deliberate order from on high.

50

Barry 03.26.11 at 12:43 pm

I have no idea ow why that bold got in there. I blame the Kochtopus.

51

Tom M 03.26.11 at 12:51 pm

Is an FOIA request like a request for document production in a lawsuit? It seems at a cursory look to be so. To the extent that it is, the prof. would be required to provide all the e-mails that fell within the purview of the request (which is why the request is as broadly drawn and as specific about names and keywords) along with a list of those e-mails excluded. The excluded list must contain the reason for exclusion, but not the e-mail itself and the Republican party may challenge the exclusion by re-requesting delivery from the prof.
Only if the RP believed the prof. was withholding relevant material would they sue for production and then take it to the judge.
Relevance to the literal language of the request is the test. As Prof. Cronon points out, the names of several of the Republicans are common nouns but also note that the termunion is not listed as a proper noun so any e-mail into or out of Prof. Cronon’s e-mails that referred to the Union, as a Civil War usage, would be listed but excluded from production as not relevant to the request.
It’s a stupid request but one that falls well within the bounds of the law if not propriety. But then, you always hope the other side is smart because you simply cannot outsmart a dumba$s. In this case, the Republican Party? Not so much.

(not an attorney albeit the subject on numerous occasions of document production requests; I would also say as someone working in a highly legalistic environment, I am highly sensitive to the work e-mail issues)

52

Andrew 03.26.11 at 2:09 pm

A quick glance at the statute and Wisconsin case law turns up this case:

Schill v. Wisconsin Rapids School District, 2010 WI 86, 327 Wis. 2d 572, 786 N.W.2d 177. It can be accessed here: http://scholar.google.com/scholar_case?q=Schill+v+Wisconsin+Rapids+School+District+&hl=en&as_sdt=4,50&case=1674659384356592323&scilh=0

The issue in that case was whether the personal emails of teachers, sent and received using district emails accounts on district computers, were subject to a records request by a third-party.

In a 3-2 decision, the court held that they were not. Interestingly, the majority was somewhat divided as to the rationale.

One justice made a threshold determination that the personal emails were not really “records,” – because their content had no relation to the business of the government-entity – and so not subject to the request.

Two other justices, writing separate concurrences, determined that the emails were records, but that the balance of interests weighed against their disclosure.

The majority generally agreed that the purpose of the statute was to shine a light on to the workings of government, and that the statute should be interpreted with that purpose in mind.

Given that case, I would imagine that the professor and university here have a very strong chance for success if they decide to release only those emails that involve the business of the university or the discharge of the professor’s professional duties – leaving out his involvement in various associations, his scholarly conversations and musings, and so forth.

53

Andrew 03.26.11 at 2:15 pm

Obviously my comment at 52 is not legal advice.

54

tom bach 03.26.11 at 2:56 pm

Jacob,
Biddy Martin is a she and, I would argue, massively brass-balled politicians is one of the causes of the current mess. More humility and less machismo, I say.

55

Christopher Phelps 03.26.11 at 10:17 pm

Harry, down to London today with the whole family on my union’s bus for the giant anti-cuts demonstration. Half a million according to the Guardian and I don’t doubt it for a minute. Biggest thing I’ve ever been in. Just massive, creative, spirited. The Fire Brigades Union had Wisconsin all over their banners, as did, of course, the left-wing groups. Wisconsin – Cairo – London was a kind of motif beneath the loathing of the Tories and Clegg. Anyway, why isn’t CT blogging about this most important labor union demonstration in decades. In the autumn the students, in the spring the workers (and the students too, of course).

56

Christopher Phelps 03.26.11 at 10:47 pm

Here is NYT coverage which is actually better than that on the BBC site right now –

http://www.nytimes.com/aponline/2011/03/26/world/europe/AP-EU-Britain-Protest.html?_r=1&hp

57

Britta 03.27.11 at 6:54 pm

From WI Dept. of Military Affairs FOIA FAQ page:
http://dma.wi.gov/dma/FOIA/FOIAFAQ.asp

What records are exempt from FOIA requests?
There are nine exemptions listed below. If you are unsure whether the records you want are exempt, request them anyway.
1. classified national defense and foreign relations information,
2. internal agency rules and practices (unless they relate to instructions on how to deal with the public),
3. information that is prohibited from disclosure by another law,
4. trade secrets and other confidential business information,
5. inter-agency or intra-agency communications that are protected by legal privileges,
6. information involving matters of personal privacy,
7. certain information compiled for law enforcement purposes,
8. information relating to the supervision of financial institutions, and
9. geological information on wells

I’d imagine the most interesting parts of his email correspondence would be protected by (3) through FERPA and (6). I’m wondering what exactly the Republicans are expecting to find. Academics receive an enormous volume of email each day, most of which is extremely boring and often redundant (e.g. the same information sent from multiple listservs). I can’t imagine sorting through that looking for…something embarrassing? Incriminating? The email where he outlines the socialist plot to take over America (TM)?

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rita in tn 03.27.11 at 9:02 pm

In reply to Jacob, 45 above:

Jacob, can’t you come up with anything other than “grow a pair.” Maybe you need to educate yourself with some Cronon books.

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Andrew 03.28.11 at 1:39 pm

Britta, remember though that the request isn’t a FOIA request, but a request under Wisconsin’s open records law. I linked to a case in Wisconsin that provides a great discussion of that law, in the context of an analogous issue.

This really looks like a losing battle for the Republicans both politically and legally, and I suspect some attorneys, law professors, and law students will have a fine time working on the university’s behalf.

60

politicalfootball 03.28.11 at 4:12 pm

Glen Tomkins@42 seems to have the right answer here. Professors aren’t the only government employees who send e-mails.

As Krugman points out, citing the climate change e-mails, it’s a mistake to assume that Cronon will be let off the hook merely because there’s nothing incriminating in his e-mails. There is always something that can be made to look bad, once the context is altered or removed.

For better or worse, we live in a new age of public information. Defending against intimidation is important, but it’s not enough.

Steve at 27 (and many others) have a hopeful interpretation of this that I do not share:

The more Republicans and the likes of ALEC resort to thuggery, the more they educate moderates- like Cronon- about the class war going on in this country, in which up to now only one side has been fighting.

Moderates (and I’m not speaking about Cronon specifically here) are largely ineducable in this stuff. They think that Republicans will respond to reason – and if not, they think it’s still inappropriate to respond in-kind.

The more-or-less unbroken record of rightwing political success in my adult lifetime is testimony to the failure of this approach.

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pdf23ds 03.31.11 at 6:46 pm

But the whole thing is turning over. The mainstream media is quickly losing its dominance to the internet, and the Republican message is going to lose the fight on the internet.

Net neutrality.

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