Is your e-mail a public document? Under public access legislation, companies and organisations are increasingly requesting documents and materials from universities. Researchers and institutions are being asked to disclose not only data and analyses, but also documents such as e-mail and minutes from meetings.
“Nobody had even dreamed that public access principles would be used to harass individual researchers,” says Michael Halpern, head of programs at the American non-profit organisation, Union for Concerned Scientists.
He is also author of the report Freedom to Bully: How Laws Intended to Free Information Are Used to Harass Researchers (2015).
According to the report, two-thirds of all requests to American universities came from commercial enterprises. Examples cited included tobacco companies and the oil industry. The aim is often to bury influential researchers in months of administration and legal processes, prevent studies being carried out and defaming relevant research.
The report describes the famous case concerning the climate researcher Michael Mann, among others. In 2009 he was working at the University of Virginia and parts of his e-mails were published against his will in connection with the so-called Climategate, where hackers leaked thousands of e-mails from the University of East Anglia Climate Research Unit.
There was a complex legal aftermath, which Mann described as a smear campaign to divert public attention from the seriousness of the climate issue. Michael Mann holds lectures and has written about his experiences in his book entitled The Hockey Stick and the Climate Wars: Dispatches from the Front Lines.
Another case concerns the historian William Cronon, who was ordered to make his e-mails public in 2011. The republican party of Wisconsin was behind the request. Cronon had written widely and critically about collective agreements, a controversial subject in the state of Wisconsin. In the same session, an industry-related organisation also tried to obtain e-mail correspondence from three other historians.
These cases acted as a wake-up call and the academics received great public support, The American Association of University Professors, for example, called the requests an “attack” on academic freedom. After a legal hearing, a number of Cronon’s e-mail messages were published.
Different laws and interpretations
The problem affects those seats of learning that are wholly or partially financed by public funds; private institutions are subject to other rules. In addition, legislation differs between states and how universities interpret laws differs from case to case.
As a result, it is difficult to grasp the situation overall. A detailed discussion of the problem is also difficult to achieve, since the public intuitively sees openness as something positive.
“But researchers must have the chance of putting relevant and sometimes uncomfortable questions. They must also be able to talk openly with each other without the need to consider whether their discussions will be used against them. If academics are silenced for fear of reprisals, research will become stifled and in the long term everyone will suffer.”
Demands for openness should therefore be aimed at research funding and not the whole research process, says Michael Halpern.
Shortcomings in university procedures
Another point of view is held by the American assistant professor of journalism and expert on transparency legislation David Cuillier, head of the journalist programme at the University of Arizona and former chairman of the organisation Society for Professional Journalists.
According to Cuillier it is not the legislation that is deficient but rather university procedures, and that e-mail is handled sloppily. He sees no need for restrictions to the current regulatory framework; the exceptions already provided are sufficient. USA would be better served by more transparency because it creates confidence.
“It is certainly regrettable that there are companies and individuals who abuse legislation. But no system is perfect.”
The alternative is even more secrecy and that is not acceptable, according to David Cuillier, who cites the Scandinavian countries as models. Instead it should be the scientists who need to toughen up, he argues.
“Those who research and obtain new, exciting knowledge must show courage and stand up for themselves and their discoveries. You have to take a few tackles, those are the rules of the game.”
David Cuillier has himself been asked to release e-mails and research data. It has not caused him much concern, though, because he keeps a polite tone in his writing and avoids e-mailing about overly controversial issues. Nor does he think that it is particularly shocking.
“We are funded by and we work for the public. With this background, requirements on transparency are fully justified.”
Does not recognise the phenomenon
Mathias Klang is visiting researcher at the University of Pennsylvania and he studies how technology and technology legislation affect people. He does not recognise the type of harassment described in the report from the Union of Concerned Scientists from conditions in Sweden. But neither is there any general perception that “my research” belongs to the public.
“I don’t believe that Swedish researchers think about the fact that much of what is written in service is actually public information. It is stored, archived and can be requested. We are government officials, since universities and colleges are authorities. You have the right to weed out your e-mails, but in principle they should be available to the public. The fact that few Swedish researchers have been forced to reveal their research and e-mail is probably a cultural issue,” he says.
Greater awareness among Swedish researchers would perhaps lead to different forms of communication; fewer e-mails and more phone calls, meetings over coffee rather than formalised with an agenda. Mathias Klang does not believe in excluding e-mail from all external investigation since it is too important a means of communication, and the situation is simply something that Swedish and American researchers must learn to live with it. How would he fare from an investigation?
“Obviously, if somebody wants to get at me for something they would almost certainly be able to find something inappropriate in ten years’ e-mail correspondence. Let’s be frank, who can defend every word in every e-mail?”