MR. KOJO NNAMDIWelcome back. Last Friday, a Michigan think tank issued open records requests for three -- two to three public universities in Michigan. They're seeking the e-mails of professors in the labor studies department. The request specifically asks for e-mails mentioning Madison, Wis. and its republican Governor Scott Walker, among other terms. Critics say the group is looking for evidence that professors engaged in political activity related to the recent public sector union protests in Wisconsin And that the move will have a chilling effect on academic freedom.

MR. KOJO NNAMDIBut the think tank says its request is about the transparency of public institutions. We're going to start with Ken Braun of the Mackinac Center for Public Policy in Midland, Mich. He's the managing editor of the Michigan Capitol Confidential at the Mackinac Center. He joins us by telephone. The Michigan Capitol Confidential is a bimonthly newsletter on state legislative votes and policy. Ken Braun, thank you so much for joining us.

MR. KEN BRAUNThank you. Glad to be here. I'd like to -- we are an online daily news site, not a bimonthly. And it's the Mackinaw Center. So we're more an everyday type publication. That's important for something we'll probably get into in a moment.

NNAMDIIt's the Mackinac Center. You sent the FOIA request to Michigan State University. The University of Michigan and Wayne State University. Why? What do you hope to learn from these e-mails?

BRAUNWell, we don't disclose the reason we look into FOIAs before we actually get the FOIAs, find out if the question we've asked is actually being answered or the hunch we have is actually in the FOIA. You know, there's -- sometimes the answer is no, it's not there. So we don't discuss ongoing FOIAs before we've actually received them, and we haven't received this one. It was only filed as you noted, on Friday. I will give you an example of a post one that we have done to a public university...

NNAMDISure.

BRAUN...which is the Michigan -- Michigan State University. We, at the Mackinac Center, discovered an incident of plagiarism involving a professor that wrote in their department of education. So we uncovered that and made a, you know, made a public deal out of it, and it triggered an investigation of this professor which is still ongoing as far as we know. And this was months ago that this happened. A student certainly would have been dismissed almost immediately for being caught with plagiarism, but in this case, we started wondering, well, what's happening with this professor investigation.

BRAUNWe submitted an open records request, and we received back dozens of pages of blacked out information. So this is just an example of some of the FOIAs we do at the Mackinac Center. We probably do one -- a couple of them a day on average. We submit thousands of these every year to school districts, to state agencies, to universities, to local municipalities, submitting every -- looking for everything from, you know, compensation information, union contract negotiations, you name it.

BRAUNWe have a, you know, we have a -- we do a lot of FOIA-based -- FOIA-sourced reporting and...

NNAMDIAre -- are you requesting all the e-mails of these professors, or certain types of e-mails? I notice there are e-mails that mention certain names, so obviously -- well, obviously to us, you're requesting e-mails that have something to do with union confrontation with the governor of Wisconsin.

BRAUNYeah. That's a -- that's a good question because some of the report on this has implied that we're just going on a -- a grand fishing expedition for the political views of professors at, you know, all sorts of universities. That's not true. We -- we look specifically, as you said in your opening, at three departments. The labor studies department at three specific state universities, and we kept it narrow to just a couple of terms.

BRAUNAnd the, you know, the term, chosen, like I said, I'm not gonna tell you what we're looking for. But when you're doing an open records request for -- particularly for digital information like e-mails, which is what we did in the Michigan State plagiarism case, we were looking for e-mails in that matter too. When you look for e-mail, sometimes you don't necessarily want to .let the public entity know exactly what you're looking for. So you pick search terms kind of like a Google search where you're looking for items that might be close by to the discussion that you're trying to find.

BRAUNSo that the -- the idea that we are looking for a broad-based political inclinations of professors that's been put out, couldn't be more false. If we were really looking for that, there's a lot of political science departments at a lot of universities all across the state that we certainly could have filed a much broad wide-open request for. That wasn't what we did. We were very narrowly tailored to specific departments, specific search terms. We know exactly what we're looking for and, you know, if we find it, and if they answer the request I should say, and if we're...

NNAMDIDo -- I was about to say in -- about answering the request, do you expect that your request will be granted?

BRAUNGiven -- I'd rather not comment on this specific case, just for the same reasons. But, you know, the precedent set by Michigan State University when they sent us out pages and pages and pages of blacked out information, does not give me a lot of hope. And now, let me tell you some of the stuff they blacked out. One of the items they blacked out was one of our articles about them that had been sent to them.

BRAUNThey blacked out a publically available document that we had written, that we sent -- that -- that a school -- or a school superintendant in Michigan sent to the university. They blacked that document out in the FOIA request that we asked for from them. So it -- the precedent being set by state universities about the public's access to information has been rather abysmal as we've seen it from Michigan State University so far. So I don't have a lot of good feelings about what might happen, but I'm hopeful that they will honor the spirit of the Freedom of Information Act, and not be legalistic regarding the letter of the law.

NNAMDIFinal question. If a professor sends out an e-mail on the labor dispute in Madison, Wis. to a personal friend, or to another professor, expressing a personal opinion either in favor of or against what Governor Walker is doing, what would that tell you?

BRAUNAs I noted, I'm not going to tell you what I'm looking for, except to say...

NNAMDIDarn.

BRAUN…if I'm looking for -- if I was looking for the political inclinations of professors, I could have cast a much wider net. And I will tell you, I'm not looking for what the political biases are of the labor studies professors. That's not what we're about. You won't see any evidence in any of the thousands of FOIAs that we've sent over the years, of anything remotely close to that. This is an idea that has been in the work for...

NNAMDIOkay. I guess we'll...

BRAUN...a long time before Madison started.

NNAMDI...we'll just have to wait and find out. Ken Braun is managing editor of the Michigan Capital Confidential at the Mackinac Center. Thank you so much for joining us.

BRAUNThank you for inviting me. I really appreciate the opportunity.

NNAMDIJoining us now by telephone is Peter Schmidt. He's a senior writer for the Chronicle of Higher Education. Peter Schmidt, thank you for joining us.

MR. PETER SCHMIDTThank you. Good to be here.

NNAMDICan you tell us how common it is, Peter, to FOIA academics e-mails at public institutions?

SCHMIDTWell, the e-mail request that's been sent in Michigan is one of two sent in recent weeks that has faculty members at public colleges around the country very nervous. On the same day that it became known that the Mackinac Center had sent its request to the three Michigan public universities, it was also becoming known that a professor at the University of Wisconsin at Madison had had his e-mails subjected to an open records request by the Republican party of Wisconsin.

SCHMIDTAnd that open records request was very similar to the one in Michigan. It asks for any e-mails that he had sent using the terms Republican, Scott Walker, collective bargaining, a couple acronyms of unions, or the names of several state politicians. And these developments have public college faculty members very nervous. They come at a time when they feel like academic freedom is under assault on several different fronts.

SCHMIDTAnd in the past, professors e-mails have been requested, but they tend to be in the context of somebody trying to find out what research they're doing or maybe an ugly fight within a department, you know, somebody was denied tenure and they want to find out why. This sort of request where people are seeking the e-mails sent by individual professors, and seeking e-mails dealing with a hot political topic of the day are new, and they're not something that colleges have fielded before, and I imagine they have a lot of professors around the country counting to 10 or maybe even 15 before hitting the send key, and perhaps even hitting the delete key these days.

NNAMDIJoining us in studio is John Curtis, director of research and public policy at the American Association of University Professors. John Curtis, thank you so much for joining us.

MR. JOHN CURTISThanks for having me.

NNAMDIHow does your organization, the American Association of University Professors see this request?

CURTISWell, I -- I want to say at the outset that we're very much in favor of open and transparent government, and we've been a user of freedom of information requests ourselves.

NNAMDIHow do you balance that advocacy of transparency and public access to government records with the principle of academic freedom?

CURTISWell, I think there is a difference here, in the sense that what we're talking about now are individual communication of faculty members, and that it very well could involved their, you know, these days we use e-mail as a medium of conversation, and this could very much involve their discussion and debate over academic issues as they're looking into various issues. These certainly are not published, polished presentations, but rather, they represent an ongoing discussion.

CURTISAnd taken out of context, I think those could be very damaging, and therefore, faculty members, if they -- they see that these kinds of requests are granted, and that the information is made public, faculty members could become very reluctant to put anything in writing and it really could have a chilling effect on their ability to communicate with colleagues and explore different issues.

NNAMDIPeter Schmidt, what have you heard, if anything, from the academics included in this particular Michigan request. What kind of effect has this had on them?

SCHMIDTWell, no request -- or no effect yet that I know of, other than, you know, having them wondering why the request was sent. I think people are afraid in the long term that these requests will have a chilling effect on academic freedom. That professors will be hesitant to send e-mails and engage in, you know, conversations in ways that they can be gotten at through open requests on political matters of the day, and they'll be less likely to express their opinion.

SCHMIDTYou know, we have a situation where, you know, changes in how we communicate are making the ideas of people in academe accessible to people throughout the country fairly easily. We recently covered a situation at the Kennesaw State University in Georgia, where somebody dug up an article that a Provost candidate had written back in 1998 that seemed to have -- he seemed to be looking at things through a Marxist lens in their view, and there was enough of a firestorm over this that he was forced to withdraw his candidacy.

CURTISSo -- or he ended up withdrawing his candidacy. So, you know, people are being challenged for things that they really did not think would be known to the public at large.

NNAMDIAnd John Curtis, you say that this is not really new except in terms of tactics that groups that targeted professors, particularly allegedly liberal professors, for decades.

CURTISThat's right. There -- there have been a number of attempts to break into what we consider the freedom of the classroom, to look at what faculty members are actually teaching. And it really represents an intrusion into that exchange that goes on between faculty members and students, as -- again, as they're discussing, as they're debating, as they're exploring issues. And these are all instances where people have not prepared a presentation for a public audience.

CURTISYou're -- you're taking something out of context that was part of a particular discussion, whether it's a discussion being done by e-mail, or a discussion being held within the classroom, it should be something that the parties to that discussion have some reason to expect will be held in some kind of privacy.

NNAMDIThese are labor studies professors who are witnessing a major union dispute right next door. Where can a line be drawn as far as how engaged they should or should not be in that situation?

CURTISWell, I think they -- there's no reason they shouldn't be engaged. They should be engaged. They're -- as you say, they're witnessing what could be very significant effects that could have a long-term consequence on the organization of labor in this country. They're trying to analyze it, they're trying to digest the information as it's coming through. You were just talking with your previous guest about the fact that we need to analyze and respond to issues almost immediately within a matter of hours.

CURTISWe don't necessarily have the time to take a week or two before we put something in writing. And especially if we're taking e-mails out of context, then you're going to capture people who were in the process of thinking things through. I know that I and many of your listeners, I'm sure, you send your thoughts by e-mail all the time. And so what we're talking about here is pulling some of those thoughts completely out of context, and then your guest from the Mackinac Center is being very mysterious about what it is they're looking for and what they expect they might find.

CURTISI think there's a reason for us to be concerned that these would be taken out of context and portrayed as being something that they're not.

NNAMDIHere is Dan in Brookland in D.C. Dan, you're on the air. Go ahead, please.

DANYeah. You know, I just wanted to make the -- you know, there's a reason to be suspicious about what the Mackinac Center is up to, because, you know, a very quick Google search, you know, finds that the Mackinac Center has received at least $60,000 in funding from the Koch Brothers Foundation. Of course the Koch Brothers, hopefully most folks know, you know, was behind the election of a number of those governors including Governor Walker in Wisconsin.

DANIt's a pro -- you know, it's a corporate pro-business, anti-labor union organization that's really kind of pushed its very extreme policy. And so it makes sense that, you know, this institute that they funded is now behind the sort of Freedom of Information Action. You know, we're ---

NNAMDII'm glad you brought that up. Because Peter Schmidt, how important is it as a writer and reporter for people to know exactly where the funding from the Mackinac organizations comes from?

SCHMIDTWell, I think readers need to know what the orientation of a group is, and we try to, you know, make note of that in stories. I'd like to interject though. I mean, it's not simply a fear of comments being take out of context that is -- or cherry picked that's at work here. Most states, or I believe all of them, actually, have laws keeping state resources from being for partisan political purposes. And at least in the case of University of Wisconsin professor, there's some speculation that they are looking for evidence that he may have crossed that line in the use of his e-mail account.

SCHMIDTAnd so, I mean, that is one of the -- the fears here is that, you know, this will be used to find out people -- if people have abused or violated that law. You know, certainly you can argue that they shouldn't be violating that law and it's a legitimate thing to be looking out for.

NNAMDICould you repeat the law that they could conceivably be violating?

SCHMIDTMost states say you can't -- their public employees cannot use public resources for partisan political purposes. If you're a public college professor, you can't go in use the Xerox machine to, you know, crank out flyers on behalf of a candidate for office.

NNAMDIGot it. Got it.

SCHMIDTSo that is a very clear line in state laws, and, you know, it could be that the searches are intended to find whether people crossed that line in opposing the labor negotiations...

NNAMDIGot it.

SCHMIDT...in Wisconsin.

NNAMDIHere is Gary in Washington, D.C. Gary, you're on the air. Go ahead, please.

GARYHi. Considering the situation with -- with professors at public universities, and what's happened in Virginia regarding this professor...

NNAMDIAttorney General Ken Cuccinelli is suing to get the research of one professor who is an advocate of -- who -- who believes as -- not believes, but who is an advocate of global warming and climate change. Go ahead.

GARYWell, shouldn't these professors refrain from using e-mail -- their universities e-mail and instead use -- use their own private e-mail on their own private devices to avoid getting into this kind of ...

NNAMDIJohn Curtis, is this something you are advising...

CURTISNo.

NNAMDI...American University professors to do?

CURTISWell, American University is a private university.

NNAMDINot American, I mean, professors at...

BRAUNYeah. At public universities.

NNAMDI...university professors in the United States of America.

CURTISNo. Certainly not. Discussing and debating issues is part of their job. That's what they do as faculty members.

GARYI'm not -- I'm not saying that they should stop debating, I'm just saying that they should use -- they should use different kinds of e-mail that they control. That way -- that way they wouldn't be under a FOIA search.

CURTISAnd that may be the outcome of something like this. But I think Peter's point about partisan political activity is actually very relevant here. At that the same time, where do you draw the line with a political science professor who just happens to be talking about the -- the basis of support for the Republican party or something like that. I think the real problem is that these things can be taken out of context.

NNAMDIAnd I'm afraid that's all the time we have. John Curtis is the director of research and public policy at the American Association of University Professors. Thank you for coming into the studio and joining us.

CURTISThanks very much.

NNAMDIPeter Schmidt is a senior writer for the Chronicle of Higher Education. Thank you for joining us.

SCHMIDTThank you.

NNAMDI"The Kojo Nnamdi Show" is produced by Brendan Sweeney, Tara Boyle, Michael Martinez, and Ingalisa Schrobsdorff, with help from A.C. Valdez, Kathy Goldgeier, and Elizabeth Weinstein. Diane Vogel is the managing producer. Today we say goodbye to Tara Boyle. She's moving onto the news department. Good luck Tara. Our engineer today, Andrew Chadwick, and on the phones, Anne Codington and Taylor Bernie. Thank you all for listening. I'm Kojo Nnamdi.