In a recent op-ed, Michele Jacklin attacks Senate Bill No. 394, which would exempt from the FOI law those records arising out of research and teaching by public university faculty, except for university financial records. This bill, like a similar one last session, would make it harder for people to use FOI requests as weapons to harass faculty for personal or ideological reasons.
Sadly, Jacklin’s attack amounts to partly recycled talking points that remain remarkably misleading, for reasons that I already addressed last year as did others.
First, Jacklin claims “little evidence” of faculty harassment. That’s nonsense. Take a look at the testimony from this year and last, including oral testimony by University of Connecticut faculty. Faculty FOIA-harassment risk is real and terrifying.
Second, Jacklin just ignores settled FOI law. As I and others have already explained, the FOI statute was never meant to cover faculty research and teaching records. That statute covers only “public records,” which means “any recorded data or information relating to the conduct of the public’s business prepared, owned, used, received or retained by a public agency.”
As a 2005 appellate court case settled, individual faculty are not a “public agency” when researching and teaching, and so the FOI law doesn’t cover any records “prepared, owned, used, received, or retained” by faculty when they research and teach. On that point, even the FOI Commission agrees.
The problem: Research and teaching materials tend to be sent or stored using the university’s information technology and to that extent become “public records” because they are thereby “received” or “retained” by the university itself. For example, most faculty researchers need to send and store information using work-provided computers, university email and university-based cloud storage, as well as use the university’s web-based platforms to apply for grants and research pre-approval. In this way, faculty research and teaching materials slip into FOI coverage, even though the FOI law wasn’t supposed to cover them in the first place. Senate Bill 394 fixes this problem. Jacklin’s response to all this: Nothing.
Third, Jacklin just ignores how our FOI law compares. As I explained last year, other states already exempt from their FOI statutes faculty teaching or research records, including Rhode Island, New Jersey, Maryland, and Virginia. In contrast, if S.B. 394 dies, our public university faculty will continue to find it hard to reduce FOI harassment risk faced not only by them but also their research teams, study participants, and non-university partners in public-private research collaborations. Jacklin’s response: Again, nothing. Crickets.
As a former journalist and public relations professional, Jacklin surely knows that a journalist’s duties to be accurate and fair don’t go away even when writing an “opinion” essay. So, an invitation. Stop calling Senate Bill 394’s supporters “foolish[ly],” “damn[ing]” the public, and “detonat[ing]” a bomb. Try instead to follow the journalist’s duty to take special care not to misrepresent or oversimplify. Our public university faculty, and the public, deserve no less.
Michael Bailey is Executive Director of the University of Connecticut-AAUP.