From the issue dated June 21, 2002
|
|
|
Your E-Mail Message to a Colleague Could Be Tomorrow's HeadlinePublic colleges find that open-records laws apply to seemingly private communicationBy ANDREA L. FOSTER Mike S. Adams was a little-known professor of criminal justice at the University of North Carolina at Wilmington until administrators read through his e-mail messages last October. Now, he's a cause célèbre among privacy advocates. Despite backing from a variety of such advocates, Mr. Adams and other public-college professors may not be able to stop the public from inspecting much of their e-mail. That's because many states define professors at public institutions as state employees. Under open-records laws, their letters, documents, and often their e-mail messages, too, are -- like those of state officeholders -- open to public scrutiny. E-mail is especially revealing of the inner workings of academe because it conveys offhand remarks that most professors would never include in a formal memo. Journalists in search of wrongdoing (including some at The Chronicle) and litigants looking for damning evidence are catching on, and they're using state freedom-of-information laws to pry open the e-mail accounts of administrators as well as professors. Institutions are taking notice -- among them both colleges that have been embarrassed, like the University of Tennessee at Knoxville, and those where faculty members have said they're worried about their e-mail privacy, like Kent State University. Those and other universities are updating policies to safeguard personal e-mail, or are warning professors to be careful what they write in the messages. The new climate has some professors, like Mr. Adams, decrying their lack of privacy. But other professors say the complaints are part of another attempt by colleges to withhold information from the public -- which, they say, deserves to know how the institutions hire, promote, and conduct research. "There's a deep-seated belief in academe that secrecy is a good thing," says Charles N. Davis, an assistant professor at the University of Missouri School of Journalism. He is also executive director of the school's Freedom of Information Center, a library for research on access to government documents. He believes that the e-mail messages of public-college professors should be regarded as public records, but acknowledges most of his colleagues don't share his view. Mr. Adams says e-mail messages should be off-limits to public scrutiny, because, he argues, they are part of the open and spontaneous discourse of a democratic society. "I guess that people would make the argument that taxpayers own my e-mail," he says. "They own the stalls in the bathroom, and decent people don't go prying into them." An Escalating Exchange The professor's saga began last September, when he received an e-mail message from Rosa T. Fuller, who was a senior at the university and a former student of Mr. Adams. The message, which she sent to many people within a few days of September 11, suggested that the "imperialist" policies of the United States in the Middle East had precipitated the terrorist attacks on the World Trade Center and the Pentagon. Mr. Adams, who is a longtime conservative, replied with a searing e-mail message that labeled her remarks "bigoted, unintelligent, and immature." He also forwarded her message to people who shared his political beliefs. Ms. Fuller then started receiving abusive e-mail messages. One student said she should be beaten with a baseball bat. Stung by the vitriol, Ms. Fuller accused Mr. Adams of defaming and intimidating her. She cited North Carolina's open-records law to request that college administrators allow her to read e-mail messages that he had sent from the university's computer system from September 15 to 18. One of the letters she sent to university officials indicates that she was trying to gather evidence to show that he had libeled her and goaded students to harm her physically. The administrators initially rejected her request, calling it overly broad. The university provides professors a zone of privacy around personal e-mail messages, says Wilmington's lawyer, Harold M. White. Messages about personnel are confidential, too, and those that contain personal information about students are protected under the Family Educational Rights and Privacy Act, he adds. Ms. Fuller argued that all of Mr. Adams's e-mail messages sent from the university network using his university account were public records, but she nonetheless narrowed her request to include only those messages that the university believed were public records. With Mr. Adams in the room, Mr. White and the university's systems-programming manager inspected about a dozen of the professor's e-mail messages to see if any of them concerned university business. The lawyer says some messages could be identified as personal because they were addressed to members of Mr. Adams's family or had subject headings that concerned hobbies unrelated to university business. And the professor advised the administrators as to which of his messages were private, says Mr. White. "In two or three messages," the lawyer adds, "we had to read the first paragraph, because the subject line was ambiguous." The administrators decided that none of the messages sent by Mr. Adams that could be retrieved were public records, so they turned over to Ms. Fuller only a log, not the contents of Mr. Adams's messages, says Mr. White. Still, Mr. Adams felt humiliated watching administrators open his e-mail messages, he says. "I felt like a person in a Kafka novel." He adds that administrators read two of his personal messages. According to a subsequent letter that Ms. Fuller wrote to the college, the log showed that Mr. Adams had sent a student three messages on September 17. Within a half-hour, she says, she received a message from the recipient saying she should be dragged by her hair down the street. She concluded that Mr. Adams must have forwarded her original message and his reply to the student. In her letter, Ms. Fuller accused the professor of libeling her "in violation of the university's computing resource use policy." She asked the university to "investigate my allegation." What the Law Says Mr. White says the university had no choice but to open the messages, in order to comply with North Carolina's Freedom of Information Act. "All records made or received in the conduct of public business of the state must be turned over to the person who requests them, free of charge, and without inquiry into why they requested them," he says. The law is murky on whether professors' research notes, lecture notes, or even regular mail also would be considered public records, he says, noting that no one has requested such documents from the university. "We all sort of live in dread of that day." Experts on open-records laws say North Carolina's is among the broadest in the country. The law specifically states that electronic records are public documents. Although most states assume that state employees' e-mail messages are public records, few open-records laws spell that out as clearly as North Carolina's -- most leave the law ambiguous, says Mr. Davis, of Missouri. He is a co-author of Access Denied: Freedom of Information in the Information Age, a book that explores the tension between privacy and open access to government files. When Mr. Adams contacted the Foundation for Individual Rights in Education about the opening of his e-mail messages, the organization started a nationwide campaign to rally support for the professor. Known as FIRE, the group includes among its goals protecting the civil liberties of professors. Greg C. Lukianoff, FIRE's lawyer, castigates the university for its handling of the matter, although he concedes that the e-mail messages sought by Ms. Fuller could be construed by North Carolina courts as public records. Still, he says, the university should have risked violating the open-records law "in deference to its moral and legal duty to protect privacy, free speech, and academic freedom." At least one high-profile faculty member at the university, however, does not think that professors' speech was chilled by the examination of Mr. Adams's messages. Daniel W. Noland, president of the Faculty Senate, says he believes that the administration handled the case well and had no choice but to comply with the state's freedom-of-information act. "It's conceivable that even the e-mail we consider personal may not have any degree of protection," the English professor says. "There are a fair number of faculty that assume that whatever we write on our computer is accessible." Some might argue that any e-mail sent using a public university's network or computers is open to public scrutiny, he adds. Dennis J. Fuller, Ms. Fuller's father, says his daughter is no longer pursuing her complaint against Mr. Adams and does not want to answer reporters' questions. She has graduated from Wilmington and is considering graduate study in philosophy, he says. Preventing Problems At Kent State University, faculty members want to thwart the same type of intrusions into their e-mail messages. No e-mail searches have upset the campus, but the Kent State chapter of the American Association of University Professors recently surveyed its members and discovered that e-mail privacy was their top concern, even ahead of salary issues. Ohio has one of the broadest open-records laws in the country, legal experts say. In contract negotiations between the administration and the faculty union last year, faculty negotiators succeeded in winning greater protections for professors' e-mail, says Timothy D. Smith, a professor of journalism and mass communications at Kent State who is director of the Ohio Center for Privacy and the First Amendment. A letter that accompanies the union contract, which was made final last September, states that the union and the administration "recognize the private nature of electronic mail communications," and that the administration will "make a good-faith effort" to warn professors about any open-records requests to view their e-mail accounts. Such a warning would allow professors to argue that the contents of their e-mail messages do not concern university business and so should not be opened. The most startling example of outsiders seeking access to campus e-mail messages involves the University of Tennessee at Knoxville. Faculty members and administrators there are still feeling the aftershocks of a local newspaper's decision to seek and publish intimate e-mail messages exchanged last year by the university's former president and another administrator. Only five months before the university released the messages, it had approved a policy that describes the conditions under which e-mail messages could be inspected. The policy, which makes clear that messages transmitted through or stored on a university computer might qualify as public records, was adopted at the behest of the legislature, which asked all state agencies to warn their employees about this. The messages published by the newspaper suggested an extramarital romance between J. Wade Gilley during his time as president of the university, from August 1999 to June 2001, and the administrator, Pamela S. Reed. The messages also raised questions about Ms. Reed's ascent through the ranks. Three months before she resigned, she was named executive director of Knoxville's new Center for Law, Medicine, and Technology. She had proposed establishing the center, which is now defunct. She resigned on June 13, 2001, the same day the university handed over to reporters 900 pages of e-mail messages, in one of which Ms. Reed professed her love for Mr. Gilley. The Knoxville News-Sentinel had requested copies of e-mail messages and other forms of correspondence between Ms. Reed and two other administrators under Tennessee's Open Records Act. David M. Keim, the News-Sentinel reporter who wrote the story, says he sought the messages because he was trying to get to the bottom of Mr. Gilley's sudden decision that June to step down as president of the university after repeatedly denying that he planned to resign. Mr. Keim says he had heard rumors that Mr. Gilley was involved with Ms. Reed. When a Knoxville spokesman released the messages to the newspaper, he said the university was resisting turning over others that it deemed "personal," says Mr. Keim. The newspaper, however, argued that all e-mail messages transmitted through the university network were public records, and the university eventually relented. Some messages had been sent from the administrators' personal Internet addresses. The day after the university released a batch of messages, the News-Sentinel published excerpts. One read: "Wade -- I love you, I really do and I will never ever make the statement to the press or anyone else that could harm you about our relationship. To me, it was a dream come true and I was glad to give you a part of your life back." Several weeks later, Mr. Keim sought another set of e-mail messages -- ones that sources had told him were found as printouts in Ms. Reed's office when auditors were doing an inventory of its contents after her resignation. The newspaper again published excerpts, including this portion of a message from Mr. Gilley, who is 63, to Ms. Reed: "Gosh, I thought you were acting pretty frisky Friday and I was trying to please you. ... I am sorry if I am not up to your expectations, but at my age and health conditions I don't know if I will ever be really sexually active again to any degree." A university lawyer, Catherine S. Mizell, declines to discuss the case. "We have litigation and potential litigation swirling around this issue," she says. Neither Ms. Reed nor her lawyer could be reached for comment, and Mr. Gilley did not respond to a reporter's inquiry. The two administrators have denied that they were involved in a sexual relationship. David A. Patterson, who chairs the Faculty Senate's faculty-affairs committee, says the scandal has made professors less likely to send e-mail messages about, for example, a colleague who is considering an offer elsewhere, for fear that the communication could be made public. "One response is that you can always telephone each other," says Mr. Patterson, an associate professor of social work. "But with busy schedules, it's far easier to have this asynchronous discussion." The legislature did not thoroughly consider the impact of its directive that e-mail messages be regarded as public records, he says, suggesting that it reconsider in light of the e-mail disclosures from Knoxville. People can't go prying into professors' campus mailboxes for letters delivered by the postal service, and the same standard should be apply to e-mail exchanges, he argues. "There needs to be a recognition of the inherent privacy of e-mail," he says. The university's e-mail policy "impairs the ability of faculty to carry out their duties in a timely and appropriate manner." Protecting Privacy In some states with narrow open-records laws, faculty members are less concerned. In Kansas, professors and administrators at public colleges don't have to worry much about intrusions into e-mail, says Marilu Goodyear, vice chancellor for information services and chief information officer at the University of Kansas. "Kansas has a pretty strong privacy provision in our open-records law," she says. "It's pretty rare that we have to supply e-mail that has personal information." But that could change in 2005, when exemptions to the state's freedom-of-information act are set to expire. Even private-college personnel are not immune from scrutiny of their e-mail messages. People can't request such messages under open-records laws, but they may gain access through a court order or a subpoena if they're involved in litigation against a college. Lawyers with expertise in privacy or open-access issues say the law concerning the privacy of electronic communications is evolving. It's unclear, for example, whether state courts would give greater protection to e-mail messages sent from professors' personal accounts than to those sent from their college accounts, assuming both are sent through a public-college network. But the lawyers say state laws ought to be more respectful of professors' personal e-mail messages. "My policy preference is that people should be able to have personal e-mail when they're at work," says Peter P. Swire, a law professor at Ohio State University who advised the Clinton administration on privacy issues. "Our jobs usually allow us a coffee break during the day. ... The coffee-break idea should apply to e-mail as well." Martin Michaelson, a Washington lawyer who advises universities, says, "I expect that in the coming years, the law will sort through in a more refined way which e-mail traffic should and should not be subject to compelled public disclosure." Meanwhile, many professors treat e-mail like just another public record. "In my own life," says Mr. Swire, "I try to follow The New York Times test -- Don't write anything down that I would be afraid to see on the front page of The New York Times." http://chronicle.com Section: Information Technology Page: A31
|
Copyright © 2002 by The Chronicle of Higher Education