California is fighting over the future of freedom of information laws
In 2010, two University of California, Santa Cruz researchers found themselves in an unexpected situation. Part of a team studying the impacts of lead poisoning on the endangered California condor, they received a request for emails exchanged between members of their research group over a roughly five-year period. Specifically, the California Rifle and Pistol Association Foundation wanted to see all correspondence that contained the word “lead” in combination with other words like “condor,” “bullet,” and “blood.” The state had previously enacted a partial ban on the use of lead ammunition in condor habitat and at the time, wildlife advocates were pushing for broader prohibitions. The researchers, Donald Smith and Myra Finkelstein, suspected that the pro-gun association was searching for information to discredit their work.
Smith and Finkelstein spent hours pulling together the records and ultimately, backed by the university, contested the request in court. They are not alone in their experience. Over the past decade, scholars working on everything from climate liability strategy, to the use of biotechnology in animal agriculture, to the safety of abortions performed by nurse practitioners and midwives have been subjected to public records requests made by groups critical of their work. And the number of such requests seems to be rising. According to reporting from The New York Times, the University of California system alone saw the total number of public records requests increase from 3,266 in 2009 to 16,921 in 2017.
In California, the use of public records requests to obtain such information could soon be significantly limited. A bill making its way through the State Assembly would carve out major exemptions from the California Public Records Act for researchers at public post-secondary educational institutions, eliminating their responsibility to turn over correspondence, unpublished data, interview transcripts, and more. The bill, AB-700, states that in order to protect the ability of such faculty to conduct and communicate about their work, “it its necessary to limit the public’s right of access.”
Though AB-700 could offer relief to academics who feel harassed or inconvenienced by mounting requests, it also has major implications for journalists, policy advocates, and industry representatives who stand to lose access to a significant body of public records.
“Our nation’s public records laws, federal and state, are a set of crucial good-government laws protecting citizens against a wide variety of ills—corruption, abuse of power—a wide variety of wrongdoing both by government and by corporations,” says Gary Ruskin, cofounder and co-director of U.S. Right to Know, a nonprofit funded in large part by the Organic Consumers Association, with the stated mission of improving transparency within the food system. “These are central to our democracy.”
It’s not clear whether the California bill will muster the support it needs to pass through the Assembly and move on to the Senate. But given the scale of the Golden State’s higher education system, what happens in California is likely to have an outsized impact on the national discussion around academic freedom and government transparency.
The California Records Act (CPRA)—the state equivalent to the federal Freedom of Information Act—was enacted in 1968 to foster government transparency and accountability, and to explicitly acknowledge that secrecy is incompatible with a democratic government. The public’s right to access public records was folded into California’s state constitution in 2004 in a provision that has been interpreted by the courts to provide broad obligations for disclosure, and narrow exemptions in the interest of privacy.
Some academics and scientists say that when it comes to academic research, these exemptions do not go far enough. In a UCLA Law Review article on the subject, “Open Records, Shuttered Labs,” Claudia Polsky points to an increasing number of harassing requests, or those “made with subjective ill intent, such as to distract a recipient from useful tasks by creating records-response busywork, or to dislodge information with the intention of quoting it selectively, acontextually, and tendentiously to inflict unfair reputational damage.”
Subjective intent is, of course, difficult to establish. And ultimately, Polsky, an assistant clinical professor at UC Berkeley School of Law, argues that regardless of intent, the essential functions of a public university—namely, teaching and research—are incompatible with public records requests aimed at its professors. These requests have a chilling effect on research by disrupting and even discouraging certain lines of inquiry, she says. As a result, they threaten academic freedom. Polsky proposes a legislative fix based not on the subjective motives of requesters, but framed around broad exemptions for scholars.
The origins of AB-700, which is not dissimilar from Polsky’s legislative proposal, can be traced in large part to her article, as well as to the advocacy of Michael Halpern, deputy director of the Union of Concerned Scientists’ (UCS) Center for Science and Democracy, who has been an outspoken critic of the use of public records requests to, in his words, “harass” public university researchers.
Halpern first became aware of the issue about a decade ago when former University of Virginia climate scientist Michael Mann received a subpoena for his emails from the state attorney general, followed not long after by a public records request from the American Tradition Institute (ATI), a conservative think tank that now goes by the name Energy and Environment Legal Institute. Though Mann prevailed when he challenged the requests in court and the emails ultimately remained private, his experience generated shock waves through the academic and scientific communities.
“You can imagine if you handed out 38,000 of your emails to people who openly disputed the validity of your work, they might be able to find a phrase or two that they could use to make you look bad, so there were some real concerns about doing that,” says Lauren Kurtz, executive director of the Climate Science Legal Defense Fund, referring to Mann’s experience. “Plus, a lot of emails involve things like peer review correspondence or internal drafts or other things that were really not right for public view.”
As Halpern began digging into the issue, he found a large number of public records requests had come since the advent of email. Some of the requests, he says, came from nonprofits as well as companies seeking to “disrupt the work of academics when they didn’t like the result of their research.” Halpern admits this work has put him in an unusual position. The Union of Concerned Scientists, after all, frequently relies on federal and state FOIAs in its own work. Nonetheless, his organization sees certain types of public records requests as at odds with academic freedom.
Records requests pose other challenges, too. The costs to universities seeking to challenge a request in court can be significant, says Dennis Ventry, an expert in tax law at UC Davis. He found himself at the center of a public records battle when a trade coalition for free tax preparation requested access to his emails and other communications. Additionally, Alison Van Eenennaam, a cooperative extension specialist with the Department of Animal Science at UC Davis, worries about recruitment.
“Young professors getting into controversial fields will be discouraged from working at public universities because they can be subject to this type of harassment,” she says, noting that researchers at private universities are not subject to the same laws.
Other concerns widely cited by those opposed to broad use of public records laws in the public university setting include the stifling of free discussion; a disincentive for researchers to communicate their work to the public; and the possibility that researchers at private universities will be hesitant to collaborate with public university colleagues.
California isn’t the first state that has considered a legislative “fix” to address public records requests in the university setting. Several states, including Maine and Delaware, largely exclude public universities from public records laws, and just two years ago, North Dakota passed an exemption for state university research information. If California were to join these ranks, however, it would be the state with the most expansive public post-secondary educational system to do so. The UC system alone accounts for roughly 10% of the country’s academic research expenditure.
Critics of AB-700 have voiced a range of concerns, many of which converge on the need for robust public records laws to ensure accountability of all publicly-funded institutions, universities included.
In a March 2019 letter to California Assembly member Laura Friedman, who introduced the bill, Kevin Baker, the legislative director for the ACLU of California’s Center for Advocacy and Policy, wrote that AB-700 would severely undermine the California Public Records Act. “We do not believe the pursuit of truth and education is fostered by darkness rather than sunshine,” he argued. If it was, then “the same theory would apply equally to every type of government official that undertakes any inquiry—not only university researchers.”
Jeremy Beckham, a research associate with People for the Ethical Treatment of Animals’ (PETA) Laboratory Investigations Department, notes further that public universities are funded in part with taxpayer dollars. “I think that the public has a rightful interest in expressing how our tax money is used,” he says.
Public records requests often shed light on important information that might otherwise remain outside the public view, says Beckham. With respect to public universities alone, such requests have uncovered Coca-Cola’s campaign to influence public health research at the University of Colorado; brought to light how agrochemical giant Monsanto enlisted researchers at the University of Florida in its effort to promote the safety of GMOs; and uncovered the significant strings that were attached to funding provided by the Charles Koch Foundation to George Mason University.
Information gleaned from records requests initiated by both Beckham’s and Ruskin’s groups has attracted extensive media attention. U.S. Right to Knows’ requests pertaining to biotech groups and GMO researchers have been covered by The New York Times and Mother Jones, among many other outlets, and the documents from their public records request are catalogued at the University of California San Francisco. PETA’s requests for animal-related research information, including photos of animal research subjects, have been covered in the news as well.
The California News Publishers Association (CNPA), too, opposes the bill, at least in its current form, which it describes as too broad. The trade association, which represents more than 500 newspapers in California, has indicated that it might not oppose a narrower version of the bill that addresses some of researchers’ concerns while preserving the robust nature of the California Public Records Act.
“I think what CNPA wants to do is to maybe help Assemblywoman Friedman and the proponents of the legislation craft something that is narrow in its application that specifically addresses the problem, without causing harm inadvertently to the public records act or to the public’s right to obtain information that it would otherwise have a right to obtain,” says Jim Ewert, general counsel for CNPA. “The analogy would be using an X-Acto knife or a surgical instrument instead of a cudgel.”
The CNPA isn’t sure exactly what an X-Acto knife would like in this case or even if there’s a real need for one, especially given there are already certain safeguards built into state law that, for example, protect against disclosure of personal information and trade secrets, or allow for nondisclosure when the public interest is better served.
Along with others opposing AB-700, they are concerned that the additional, broad exemptions included in the bill could become a slippery slope by which the pubic gradually loses more and more access to information, and through which government becomes less and less transparent.
“Any effort to weaken any public records laws—federal, state—should be worrisome to citizens across the country,” says Ruskin.
Zoe Loftus-Farren is the managing editor of Earth Island Journal. Her work has appeared in Salon, KQED, among other outlets.
This story was originally published by Undark.
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