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Harvard's E-Mail Searches Went Further Than Previously Reported
Does anyone have any suggestions on how to inform faculty about FOIL and e-discovery. This can be very delicate to explain. I would not want to see someone move their email to a third party provider, thinking it is safe from FOIL or e-discovery.
From: EDUCAUSE Policy Discussion Listserv [mailto:POLICY-DISCUSSION@LISTSERV.EDUCAUSE.EDU] On Behalf Of Prof. Martha McCaughey
Sent: Thursday, April 04, 2013 11:59 AM
Subject: Re: [POLICY-DISCUSSION] Harvard’s E-Mail Searches Went Further Than Previously Reported
It's not about ideals vs. facts. Consider the case of the (public) University of Wisconsin in 2011, when the Wisconsin Republic Party made an open records request for certain emails sent by Prof. William Cronin. The record holder--i.e., the University of Wisconsin--had to perform a legal balancing test between two important goals: (1) public interest; and (2) privacy, academic freedom, and free expression.
The University's Chancellor, Biddy Martin responded and I quote from her formal response:
". . . I announced that the university would comply with the law and, as we do in all cases, apply the kind of balancing test that the law allows, taking such things as the rights to privacy and free expression into account. We have done that analysis and will release the records later today that we believe are in compliance with state law. We are excluding records involving students because they are protected under FERPA. We are excluding exchanges that fall outside the realm of the faculty member's job responsibilities and that could be considered personal pursuant to Wisconsin Supreme Court case law. We are also excluding what we consider to be the private email exchanges among scholars that fall within the orbit of academic freedom and all that is entailed by it. Academic freedom is the freedom to pursue knowledge and develop lines of argument without fear of reprisal for controversial findings and without the premature disclosure of those ideas. Scholars and scientists pursue knowledge by way of open intellectual exchange. Without a zone of privacy within which to conduct and protect their work, scholars would not be able to produce new knowledge or make life-enhancing discoveries. Lively, even heated and acrimonious debates over policy, campus and otherwise, as well as more narrowly defined disciplinary matters are essential elements of an intellectual environment and such debates are the very definition of the Wisconsin Idea. When faculty members use email or any other medium to develop and share their thoughts with one another, they must be able to assume a right to the privacy of those exchanges, barring violations of state law or university policy. Having every exchange of ideas subject to public exposure puts academic freedom in peril and threatens the processes by which knowledge is created. The consequence for our state will be the loss of the most talented and creative faculty who will choose to leave for universities where collegial exchange and the development of ideas can be undertaken without fear of premature exposure or reprisal for unpopular positions. This does not mean that scholars can be irresponsible in the use of state and university resources or the exercise of academic freedom. We have dutifully reviewed Professor Cronon's records for any legal or policy violations, such as improper uses of state or university resources for partisan political activity. There are none."
In my state of NC, the public records act does not say any and all emails sent are open records. For example, an email sent from my state university account but that is not part of the conduct of university business (eg, let's say I emailed my child's babysitter) is not subject to an open records act request.