(Editor’s note: The original online version of this piece contains hyperlinks to Web material and Web pages that were available on Wayne State University’s website on the morning of April 4, 2011. In two cases, this material became unavailable on the WSU website later in the day, and the remaining Web pages became unavailable the next morning. In our online version, we have substituted hyperlinks to the Mackinac Center’s PDF copies of the original WSU Web content.)
The Mackinac Center is a public policy research and education institute, and one of our regular activities is submitting requests to public institutions for public documents under Michigan’s Freedom of Information Act. We typically do not comment on the purpose of these FOIAs until we see the results, but in the case of the FOIA we submitted last week to three public university labor departments, we have decided to respond to what has become a national debate over whether we — or anyone — should be asking for such information at all. Our answer is that we should, and that these requests are not only proper, but also respectful of the privacy of the labor professors involved.
The recipients of our FOIA requests were the labor studies centers at Wayne State University, the University of Michigan and Michigan State University. In this FOIA action, we specifically sought e-mails that these departments’ members sent on university computers regarding recent labor-related events in the news, including the heated debates over Wisconsin’s public-sector unions. To understand why we were interested in such a topic, imagine the following hypothetical statements about one of these three departments:
First hypothetical: The department has a website that displays hyperlinks to tea party groups and taxpayer advocacy groups and elsewhere states that the department’s official activities include helping “local leaders develop local strategies for building power.” The website notes that if these taxpayer groups can continue “building coalitions” and “mobilizing aggressive political action,” they will be “laying the groundwork for helping to lead the future of their regions.”
Second hypothetical: The department also has a specific focus on helping tea party and taxpayer groups fight against labor unions trying to create living wage campaigns and unions that are blocking privatization efforts at public schools. The department has “produced a comprehensive guide for activists for organizing” opposition to living wage campaigns.
Third hypothetical: This academic research department has done the same thing for pressure groups that wish to see cost-saving privatization plans implemented in public schools and elsewhere and must defeat public union labor leaders in the ensuing political battles. The department has created a guide to implementing privatization plans over the objections of hostile labor unions.
Fourth hypothetical: In 2005, a public employee union lodged a campaign finance violation complaint with the state against this university department because the department was then using its website to advocate a statewide ballot proposal that would reduce Michigan’s minimum wage. The public employee union was concerned that a public university’s faculty was using public dollars to engage in political activity.
Fifth hypothetical: The taxpayer-financed university website includes a handy list of ways for tea party and taxpayer groups to dig up dirt and embarrassing evidence against labor unions.
These are not generally the sort of things that Michigan residents would expect to find on the websites of the economics, business or history departments of public universities, to say nothing of other academic disciplines. Such activities would reasonably raise questions about whether the department had become sidetracked from its educational mission and whether anyone — particularly union members – should have their tax dollars used to support political fights that they do not believe in. In fact, this university department might appear to be operating more as a political action committee than as a teaching and research resource.
Readers who have been following this issue will have already realized that the five hypothetical statements effectively reverse what has actually happened: The Wayne State University Labor Studies Center does everything noted above except that its materials would favor organized labor and work in opposition to the interests of many taxpayer and tea party groups. For example, the campaign finance violation was filed by the Michigan Chamber of Commerce because the Wayne State LSC was then using a university website to promote a ballot proposal to hike the state’s minimum wage. In fact, all of the quotes above come from the Wayne State University website, except that they are used to promote precisely the opposite cause.
The Mackinac Center published a piece on this more than a year ago available online at www.MichCapCon.com/12070. In the aftermath of what I wrote, the governor, Legislature and attorney general did not publicly investigate whether taxpayer dollars were being misused by the LSC. Our interest in the story continued, however, even though this was nearly a year before the recent events in Wisconsin and long before the debate over the labor-related components of the emergency financial manager legislation recently passed in Michigan.
The unfolding of the Wisconsin turmoil and the pitched debate over the Michigan legislation provided us an opportunity to chase an old story with a FOIA. Specifically, we were interested in determining whether the LSC and the labor faculty at Michigan’s other two large public universities had actively employed university resources to enter the political debates. At a minimum, we thought a FOIA investigating professors’ emails on these subjects might demonstrate whether state officials should ask questions about this use of tax dollars for public universities. In the worst-case scenario, we knew these emails might suggest that the faculty had acted illegally, because certain political uses of university resources are prohibited by Michigan law.
Some of the concern expressed about our recent FOIA inquiry has had to do with our requesting emails mentioning not just Wisconsin and Michigan public-sector labor topics, but also Rachel Maddow. We asked for these emails first because Ms. Maddow had recently criticized at length Michigan’s governor and his labor-related legislation in a TV segment virally circulated on the Web, and second because FOIA requests are an inexact art, much like a Google search. You can ask for everything, and get everything, but not only is it costly to do so (public bodies can charge the fair costs of retrieving public records), it is both time-consuming and needlessly intrusive on the activities of public employees.
Hence, by including emails referring to Ms. Maddow, we were aiming to generate a more narrowly targeted set of emails that nevertheless didn’t depend closely on exact phrases that she or the letter writers might have used and that would have excluded emails relevant to our request. Nothing in our request intentionally impinged on or attempted to override the privacy exemptions built into Michigan’s FOIA law, including exemptions for personal material subject to doctor-client privilege, student privacy, social security numbers, trade secrets or material protected by other statutes. In any event, public employees are aware that their use of government resources can be constrained and monitored, just as private-sector employees know this about their use of their businesses’ resources.
In pursuing this FOIA request, we were not engaging in an activity different from other FOIA requests. We routinely ask for a variety of public documents, including financial reports, salary data and union contracts. We have also asked for emails, including emails sent by academics at public universities. This has always been done with a desire to increase the public’s understanding of why government adopts certain policies or spends money in certain ways. Sometimes we have also been concerned that government officials have engaged in activities contrary to their proper legal mandate. In this case and in others, we were not interested in some sort of bizarre crusade to expose any political bias of professors.
Indeed, a search of the Mackinac Center’s website and our work would have turned up no evidence of our using previous email FOIAs in this way. And basic logic says that if this had been our objective, then we are rather bad at it. Why go after labor studies centers alone when there are so many naturally opinionated political science professors, economists and history professors to look at? Indeed, why limit our search to just those three centers at those universities?
It is important to note that most of the media did a very objective job with the coverage of this story, due no doubt in large measure to the fact that they file FOIA requests as well. Some did an exceptional job digging up what our actual objectives were — even those who might not agree with them, and even before we had publicly discussed them.
But academics are not super-humanly thick-skinned; few of us are. Public employees subject to open-records requests have been known to get very upset when those requests touched too close to home. For example, when the Lansing State Journal published the names and salaries of the state of Michigan’s 54,000-plus government employees back in 2007, the reaction was highly negative from the public employees who lived in Lansing, the seat of state government.
And our practice of remaining silent about the intent of our FOIAs — common enough among journalists and other policy groups — may have left some academics uncertain about our intentions. There are several reasons for our policy, however. First, for our sake and for the sake of the government officials subject to a FOIA request, we don’t want to publicly speculate about what we might find. This would be both imprudent and potentially unfair. Moreover, in an extreme case, if we get a tip that evidence of illegal activity might be hidden in a particular public document, it would be both irresponsible and potentially libelous to publicize that concern prior to receiving the FOIA’s results.
In sum, open-records laws like FOIA are how a free people maintain their confidence that government is working effectively and isn’t hiding inappropriate activity from them. Sometimes those inquiries will be uncomfortable for government officials and other public employees, but with reasonable safeguards like those already established in state law, sunshine remains the best disinfectant. This was the purpose when legislators passed FOIA laws following the Watergate scandal, and it remains a sound purpose to this day.
The original version of this story was posted online on Apr. 4, 2011.