Title : Freedom of Information Laws Affect the : Autonomy of American Universities Author : Marsha Woodbury Organisation : University of Illinois, Champaign-Urbana Keywords : Freedom of information; universities; autonomy; : academic freedom; privacy; accountability; : regulation; right to know Abstract : This article examines the impact of freedom of information laws on the autonomy of American universities. It begins by sketching the history of the "right to know" and the structure and function of the university. This is followed by an analysis of recent case law which is changing the acknowledged powers and privileges of the university. The author recognises the tension between the need to maintain public trust through accountabiity and the desire to foster academic freedom, efficiency and to preserve privacy. She argues that universities should become more open with operations such as presidential/chancellor searches, crime statistics and peer review. Disclosure and openness should be achieved voluntarily, thus avoiding the need for legal intervention or enforcement of change. Guidelines recently announced by President Clinton and Attorney-General Janet Remo which emphasize a presumption of disclosure are recommended. Contact Name : The Editors, E Law Contact Address: Murdoch University School of Law, PO Box 1014, : Canning Vale, Western Australia, 6155 Contact Phone : + 61 09 360 2976 Contact Email : elaw-editors@csuvax1.murdoch.edu.au Last Verified : Last Updated : Creation Date : November 1994 Filename : woodbury.txt File Size : 54K File Type : Document File Format : ASCII Publication Status: Final COPYRIGHT POLICY: Material appearing in E Law is accepted on the basis that the material is the original, uncopied work of the author or authors. Authors agree to indemnify E Law for all damages, fines and costs associated with a finding of copyright infringement by the author or by E Law in disseminating the author's material. 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ISSN: 1321-8247 EMAIL RETRIEVAL: send message "get elaw-j woodbury.txt" URL: gopher://infolib.murdoch.edu.au:70/00/.ftp/pub/subj/law/jnl/elaw/ comment/woodbury.txt ftp://infolib.murdoch.edu.au/pub/subj/law/jnl/elaw/comment/ woodbury.txt -------------------------------------------------------------------- FREEDOM OF INFORMATION LAWS AFFECT THE AUTONOMY OF AMERICAN UNIVERSITIES Marsha Woodbury University of Illinois, Champaign-Urbana "When credibility is in doubt, the effort to get at the truth is formalized." Harry S. Broudy.(1) INTRODUCTION(2) Acting in his official capacity, James Holderman, president of the University of South Carolina, authorized $350,000 in salary and travel costs for Jihan Sadat, the widow of slain Egyptian President Anwar Sadat. This expenditure compensated Sadat for a mere part-time teaching post over the course of three semesters. In 1986, when controversy over Holderman's lavish spending arose, an attorney successfully relied on the _South Carolina Freedom of Information Act _ (hereafter the FOIA) to force disclosure of the expenditure.(3) Across the Pacific, universities have also been held accountable to freedom of information laws. Seven years ago the New Zealand government included universities under its _Official Information Act_, mandating that these institutions be as open and accountable as many other public institutions".(4) At one stroke the freedom of information law regulated every university and technical institution in New Zealand. In the United States, FOIA requests have sometimes resulted in embarrassing releases of university documents.(5) Reporters working on one story that drew national attention said, "When we first got onto this story, we didn't realize that one of the most secretive organizations in America would be a public university, but that's what we found in Minnesota."(6) Freedom of information laws create a tension between the public's desire to be informed and the university's historic autonomy. In 1868, for example, the California Constitution declared the University of California a public trust to be administered by a governing board which would have full powers of organization and government, permitting legislating control only "to insure the security of the university's funds" and property and physical plant matters.(7) This autonomy should foster academic freedom, defined by Justice Frankfurter,(8) as "the right of the university to decide, on academic grounds, who may teach, what may be taught, how it shall be taught, and who may be admitted to study."(9) The critical issues of freedom of information and universities are the balancing of the needs for privacy, research, academic freedom, and executive functions on the one hand and, on the other, the people's right to know what its public bodies and public servants are doing. Apparently, public trust has eroded, and the freedom of information has had to be institutionalized, and in so doing, courts and lawmakers are changing the acknowledged powers and privileges of the university, and thus redefining these institutions. Each time a public university loses a freedom of information issue in the courts, its character changes as regulation is imposed from beyond its walls, adding to the administrative burden of fulfilling legislative mandates. Furthermore, hiring and firing decisions are altered, thus changing the composition of the campus community. Actions such as disciplinary hearings and presidential searches which universities formerly kept secret and confidential in time could become as open as they are for other public bodies.(10) If universities fail to preserve their special status, they eventually may lose their ability to foster academic freedom. This article examines recent court rulings and the dimming of the distinction between universities and other public institutions whenever decisions about public access to information are contested.(11) The author postulates that state and federal legislatures and courts are taking a second look at what exactly universities are(12) and what these institutions do, and how they should operate.(13) The author analyzes the recent decisions which change the stature of a university and argues for universities becoming more open with operations, such as presidential/chancellor searches, crime statistics, and peer review, which is an examination or review of professional or academic efficiency, competence, etc. by others in the same occupation.(14) The author will recommend guidelines recently announced by President Clinton and Attorney General Janet Reno which universities might consider. If openness is not achieved voluntarily, then the author foresees further court decisions and legislation which will enforce change. BACKGROUND Freedom of Information The right of broad access to government information is "absolute in theory" but "qualified in practice."(15) The right of inspection of public records had a measure of recognition which preceded the adoption of the U. S. Constitution and the First Amendment.(16) Mention of the right to inspect public records existed in the law centuries ago.(17) However, the English courts declared the primary rule that there was no general common law right to inspect public records or documents.(18) The current American understanding of the public's "right to know" is based on the First Amendment.(19) The U.S. Constitution doesn't explicitly set out "the right to know,"(20) thus statutory and common law define it.(21) Because of the federal form of governance in the United States, the freedom of information is regulated at the national, state, and even city levels.(22) "The right to know" appeared in statutory law around the turn of this century, first in a 1898 Utah statute and soon thereafter in 1909 in Florida.(23) By 1959, 20 states had some form of _Open Meeting Act_, commonly called "sunshine law" as part of a widespread attempt to combat the effects of secret actions upon public decision making. An _Open Meeting Act_ (OMA) guarantees public observation of the meetings of its representatives. These laws are not within the scope of this article, but it is worth mentioning two cases. In _Pope v. Parkinson_,(24) the Illinois Court of Appeals determined that the University of Illinois administrator of a public facility (the Assembly Hall) was free to consult with an informal advisory committee regarding use of that facility, making it an internal university affair not subject to openness requirements. This ruling helps to explain the proliferation of "advisory committees" on the Illinois and other campuses: "In public institutions where open records and open meetings laws have made it impossible for the president to have an effective interaction with the board of regents, the development boards can serve the president well as a kind of shadow governing board."(25) Also in Illinois, in _People ex re. Byron v. Board of Trustees of Southern Illinois University_,(26) the Court of Appeals ruled that meetings of the Board of Trustees of Southern Illinois University must be open. For decades, requesters had to give their reasons for asking for documents from federal and state governments, but in the 1960s, Congress changed the standard to a qualified principle of open government.(26) In 1966, President Lyndon Johnson signed the federal FOIA,(27) which took effect on July 4, 1967. With the passage of the federal FOIA, the burden of proof shifted from the individual to the government, in that those seeking information no longer were required to show a need for the information; the "need to know" standard changed into a "right to know" doctrine--the government had to justify any need for secrecy.(28) Under the federal FOIA the requester has the right to ask for records, to receive a response to the request, to be told why the information is being denied (if it is), to appeal the denial, and to challenge it in court.(29) In all 50 states, the schools are the responsibility of their state governments.(30) Although the federal FOIA applies directly only to the Executive Branch of the government, and not to the nation's schools, the federal government does set standards for university records through its laws, including the _Privacy Act _of 1974,(31) the _Occupational Safety and Health Act_ of 1970,(32) and the _Family Educational Rights and Privacy Act_, of 1974, (the Buckley Amendment) commonly referred to by its acronym, FERPA.(33) Under FERPA, the U.S. Department of Education may withhold federal funding to schools "under any applicable program."(34) The legislators intended that FERPA would protect students' academic and financial information. An unanticipated outcome of FERPA occurred when schools did not limit the definition of "education records" to grade transcripts, teacher evaluations, standardized test scores, and the like.(35) When Congress believed that school officials had used the federal Buckley Amendment as an excuse for denying access to campus crime records, the legislators parried with another set of rules, the _Federal Student Right to Know and Campus Security Act_ of 1990.(36) Journalists report that access to crime information is still not assured, and many schools do not summarize their crime statistics.(37) Freedom of information laws generally emphasize ad hoc balancing of competing values.(38) Cleveland defined the balancing as a "Trilema," encompassing the public's right to know, the individual's right to privacy, and the public institution's mandate to serve "the public interest."(39) Universities balance these interests when they decide which information to release and which to withhold. University Structure and Function Universities in the United States swim in a sea of information policy, buffeted by a multitude of laws and regulations. To understand the rulings in freedom of information cases and to appreciate the tension of freedom of information law, it is essential to examine the structure and function of the institution of higher learning. The public university is a complicated organization, a hybrid, part corporation and part collegium. Major public universities are enormous, with police departments, hospitals, and large staffs.(40) Within an academic campus are boundaries, and formal channels of communication which must be respected, and dynamic processes which are unique.(41) The purpose of universities is to develop society's human resources, and to generate, transmit, and disseminate knowledge.(42) Historically universities have had considerable autonomy from regulation because they are supposed to foster academic freedom and protect it from outside interference.(43) In the United States of the 1990s, universities have both public and private aspects. Because of their increased funding dependency on both state and federal sources, most universities have had to relinquish much of their institutional autonomy.(44) Ironically, although the difference between public and private universities has eroded, legislatures continue to exclude private universities from state freedom of information statutes,(45) even though most "private" colleges receive governmental research grants and have students whose financial support comes partly from state and federal sources.(46) For example, Illinois provides funds for a consortium of private colleges.(47) However, when constitutional rights come into question, private schools are not immune from judicial intervention.(48) In the last few decades, universities may have lost some of the trust invested in them. There have been scandals about the misuse of funds,(49) and the government has had to push, drag, or cajole some schools to be equitable in their dealings with citizens. For example, during the Civil Rights movement, the African American student James Meredith needed the protection of soldiers in order to register for school in Alabama, a clear example of the government's need to intervene in the internal governance of a university.(50) Authors argue that unethical practices are as common inside academia as outside.(51) The Wingspread Report, prepared by a prestigious panel of scholars, also called upon universities to renew themselves, or they would be forced to change from without.(52) The pressure for change has shifted from inside to outside educational organizations; the incentives have shifted from voluntary improvements to mandatory requirements.(53) The warnings are clear that universities ought to take the lead in their transformation, or have their character dictated from without. Another facet of university/FOIA tension is the logic of confidence.(54) Parties bring to each other an assumption of good faith that each is carrying out their defined activity--the community to the chancellor, the deans to department heads, professors to teaching assistants. All along the chain there is a trust which goes into maintaining the plausibility and legitimacy of the whole organization.(55) Some authors hold that openness breeds confidence, brings trust, public awareness of decision making, and some measure of protection against corruption.(56) For example, in presidential searches, women and minorities feel suspicious about the fairness of the process when it is hidden from them. On the other hand, parties seeking to limit disclosure of university-generated information cite the institution's operational needs.(57) Specifically, they argue that openness constrains the nature of discourse, alters the decision-making process, adds costs, interferes with searches for and evaluations of personnel, encourages mediocrity, and results in a loss of candor. Former university president Peter Flawn wrote, "The public expects its institutions to be managed effectively and efficiently but at the same time supports laws demanding openness and democratic procedures, guaranteeing that business is conducted inefficiently and laboriously, making effective and efficient management impossible."(58) ANALYSIS Recent caselaw places universities within the same disclosure requirements that apply to any other public institution. For example, in _Beacon Journal Publishing Co. v. Kent State University_, 1993, a publishing company and reporter Thrity Umrigar filed a complaint against Kent State University (KSU), its police chief, and its director of marketing and communications seeking documents relating to reports that KSU admissions office employees had received threatening letters. The newspaper also sought documents related to reported misconduct by the former KSU Director of the Department of Admissions. The Ohio Supreme Court(59) held that releasing the information would do no harm, once the names had been redacted.(60) The Court stated that the state Freedom of Information Law "...was intended by the General Assembly to be liberally construed to ensure that governmental records be open and made available to the public...subject only to a few very limited and narrow exceptions."(61) In the late 1980s a controversy erupted at several universities, including Harvard, related to low admission rates for Asian Americans. The Harvard Crimson used the Massachusetts FOIA(62) to obtain a report by the U. S. Department of Education's investigation of this matter.(63) Public relations might have been better served by a voluntary release of the report. Also, Harvard admissions officers were forced to reveal the comments they wrote about Harvard applicants who were being considered for admissions. The summary sheets contained comments such as "alum" or "recruited athlete" written by officers who reviewed each file. Joshua Gerstein, a 1991 graduate of Harvard University, appealed to the U. S. Department of Education to intervene when Harvard refused to release the sheets.(64) The department ruled that Harvard had violated FERPA.(65) Another scenario where freedom of information is used to force universities to disclose information is in the area of personnel recruitment. While in many universities, during a search for a top official, the prospective candidates expect secrecy, courts have been frequently ruling that this information should be made public.(66) Courts have asked for legislatures to state which policy should prevail.(67) As recently as 1994, the Nevada courts ruled that the chancellor of the University and Community College System is a public officer, and interviews for the job must be open to the public.(68) However, not all universities maintain a posture of confidentiality in this area. A less covert process should be taking place in Alaska,(69) Kentucky,(70) Tennessee,(71) and Florida,(72) where university searches are held to be open to the public. Charles Reed, Chancellor of Florida's State University System, has filed amicus briefs for plaintiffs who sued for FOIA access to university information in other states.(73) To avoid the state control of donated funds, many universities create entities called "foundations." The Ohio Supreme Court recently ruled that the University of Toledo Foundation, a fundraising body which is separate and distinct from the public university, is nonetheless a public body which must make its donor lists public.(74) The Court rejected various privacy rationales put forth by the Foundation in the suit filed by the Toledo Blade.(75) Instead, the Court found that non-disclosure by the Foundation would obscure the sometimes significant link between a gift and its eventual use.(76) For years, judicial practices on college campuses have been closed to the public. In a pivotal case at Southwest Missouri State University, Traci Bauer went to court and won disciplinary records denied under the Buckley Amendment.(77) The Supreme Court of Georgia has also ruled that the records of campus judicial bodies are open to the ? for inspection.(78) One of the most intransigent areas for openness, the tenure(79) and promotion process, illustrates the tension between a justifiable need for confidentiality and the FOIA. Tenure is "Guaranteed tenure of office, as a right granted to the holder of a position (usually a university or a school) after a probationary period, and protecting him against dismissal under most circumstances." With the expansion of civil rights such as in Title VII,(80) equal employment opportunity is guaranteed for all workers, including those in universities. In academia, the secrecy of peer review leaves a suspicion that colleagues might vote against a candidate unfairly, because of his/her race or gender,(81) or that a prejudicial letter from outside the institution might influence some part of the process. Traditionally, the university held the position that its peer review materials were privileged information under the aegis of academic freedom and the First Amendment.(82) However, courts have ruled that Title VII outweighs confidentiality, and if doubt is raised about civil rights violations, relevant documents must be made public.(83) The following two cases illustrate the far-reach of this Equal Employment Opportunity Commission (EEOC) activity. In EEOC v. University of Notre Dame du Lac,(84) the EEOC issued a subpoena for the personnel files of a professor who claimed he had been the subject of racial discrimination.(85) The EEOC also sought the personnel files of all the teachers in the Economics Department.(86) The Seventh Circuit Court of Appeals found that confidentiality was essential to the proper functioning of the faculty tenure review process, and ordered that names and other identifying material be redacted in all released documents.(87) A decade later, the EEOC won a similar case for a female Asian professor who was denied tenure at the University of Pennsylvania.(88) Finding that the public has the right to "every man's evidence,"(89) the U.S. Supreme Court rejected the University of Pennsylvania's claim that confidential peer review files were protected from disclosure to the EEOC. The Court noted that in creating Title VII, Congress had not exempted educational institutions, and, even after debate on the subject, created no exceptions for peer review documents.(90) The Court's decision provided generous disclosure conditions for plaintiffs and the EEOC. Blackmun wrote for the Court that he believed "not all academics will hesitate to stand up and be counted when they evaluate their peers."(91) The Court defined academic freedom as dealing with content, such as of ideas expressed on campus, rejecting the argument that oversight of possibly prejudicial hiring and retention practices interfered with academic freedom, and the Court rejected the argument that "quality will decline" with more openness.(92) RESOLUTION Universities are centers of learning and open exchange, founded and funded in a spirit of trust. By withholding very little information, and readily complying with FOIA requests, they honor that trust. If truth should reign anywhere, it is in the academy.(93) The task for universities is to maintain credibility by making FOIA decisions which are ethical and responsible and which don't invite further intervention by the legislatures and courts. The university administration must have clear goals in mind and exemplary standards of conduct to follow. To have impact on decisions, goals must provide criteria for what should be done or be bound to traditional standards of conduct.(94) Public trust could be violated if university officers were to use state FOIAs to withhold rather than disclose information by charging high fees for searching and copying, or claiming the documents are lost, or ignoring the time limit, or redacting indiscriminately, or interpreting the exemptions overly broadly, or improperly classifying documents as private. Universities should not "go underground" and use E-mail or complicated databases as devices for avoiding public view.(95) Proper planning for the new technology can ease public access.(96) Possible solutions to unnecessary withholding of information include changing the state FOIAs or creating new public policy, such as re-writing university charters or penalizing universities that do not comply. The author urges universities to take the initiative in opening up access before the courts and legislatures enact legislation to force more compliance, which would at the very least add to the administrative load. As for peer review, an academic should be willing to express her/himself openly and honestly, making judgments on some identifiable criteria, and be willing stand by those judgments.(97) "If there is a smoking gun to be found that demonstrates discrimination in tenure decisions, it is likely to be tucked away in peer review files."(98) Some have argued that all a university needs to do is to establish procedures for evaluating candidates for tenure and that unsuccessful candidates should be given a meaningful statement about the university's decision.(99) Unfortunately, the exactness of "meaningful" is not universally understood. When President Clinton took office, he inherited a federal government with an enormous backlog of FOIA requests.(100) He set a new tone,(101) and Attorney General Janet Reno rescinded a 1981 rule which encouraged federal agencies to withhold information requested under the FOIA whenever there was "a substantial legal basis" for doing so. In its place, agencies are directed to apply a "presumption of disclosure."(102) Reno's enactment of Clinton's order could be useful guidance for universities. Among other directives, she instructed all government agencies and departments that FOIA exemptions should only be invoked in limited circumstances;(103) and she urged all government FOIA officers to make discretionary disclosures under the act whenever possible. These guidelines could help universities avoid the embarrassment of having the courts force release of information. CONCLUSION A public university is given powers by the people, and in order to maintain public trust, the institution must avoid abusing those powers, yet foster academic freedom. A tension exists between the university's need to function efficiently and effectively, and the public's right to monitor how and what their officials are doing. This article began with the withholding of information at the University of South Carolina, which one attorney called "one of the grossest public relations blunders ever by a state agency."(104) Whenever public trust is violated, outside intervention appears warranted, and autonomy is diminished. Rationality and fairness will prevail if universities continue to resist unwarranted outside interference with academic freedom, but demonstrate openness with other information. Universities should perhaps adopt the Clinton/Reno model instead of having the courts force release of crime statistics, presidential/chancellor short-lists, and peer review letters. Rather than go kicking and screaming, universities should lead the way by modeling openness for their students and communities. 1 Harry S. Broudy, *Truth and Credibility--The Citizen's Dilemma* 94 (1981). 2 My thanks to Rendi Mann-Stadt for her editing, and to Roger Woodbury and Gregory Bopp, for keeping me "on task." 3 No. 86-CP-40-3405 (South Carolina County Court of Common Pleas, Oct. 27, 1986) (_Perkins v. University of South Carolina_), see also Jef Feeley, S. C. student's attorney-wife turns to FOIA and wins: husband sought Sadat salary data. The *National Law Journal*, Vol. 9, Nov. 24, at 8 col. 1 (1986). 4 M. Taggart, "Freedom of Information and the University," *Otago Law Review*, (1988), 6, 4, p 638-663. 5 For a detailed discussion of the far-reaching impact of newspaper examination of university documents, see Joe Tevlin, The Man Who Nailed Najarian, *Minnesota Monthly*, July 1993, at 40-66. This article tells about two reporters who won the National Press Club Freedom of the Press Award. In giving them the award, moderator Gil Klein said, "A team of reporters at the Minneapolis Star Tribune fought to gain access to public records while working on an extensive investigation involving the University of Minnesota. They were looking into whether gifts and other special sources of money were improperly influencing the mission of the university. Although Minnesota state law explicitly states that public documents are available, the reporters said officials were uncooperative in responding to requests for data. The university even lobbied the state legislature to change the law. Eventually a paper trail led to the discovery of financial abuses in the medical school that the university was aware of, the Star Tribune reported. After a full-scale inquiry, the FBI started a probe which led to an indictment, an overhaul of the university's conflict-of-interest policies, and replacement of top leadership at the medical school. " Federal News Service March 16, 1994, Special Transcript, National Press Club. 6 Maura Lerner, Federal News Service March 16, 1994, Special Transcript, National Press Club. 7 Cal. Const. Article IX at 9(a). Of interest: On Nov. 2, 1976, 9(g) was added, requiring the Regents' meetings to be open to the public, with only a few exemptions. 8 Concurring in _Sweezy v. New Hampshire_, 354 U. S. 234 (1957). 9 Id at 262-263 10 For a more in-depth discussion of autonomy, see Caitlin M. Scully, Autonomy and Accountability: The University of California and the State Constitution, 38 *Hastings Law Journal* July, 927 (1987). 11 Universities are explicitly treated like any other public body in 623 N.E. 2d 51 (Ohio 1993) (_Beacon Journal Publishing Co. v. Kent State University_, 1993), and 577 No 88-493 U.S. 182, 110 S. Ct. (_University of Pa. v. EEOC_, 1990). 12 The whole body of teachers and scholars engaged, at a particular place, in giving and receiving instruction in the higher branches of learning; such persons associated together as a society or corporate body, with definite organization and acknowledged powers and privileges (esp. that of conferring degrees), and forming an institution for the promotion of education in the higher or more important branches of learning; also, the colleges, buildings, etc., belonging to such a body. J. A. Simpson and E.S.C. Weiner, *The Oxford English Dictionary*, 2d Edition, Vol. XI 437 (1989). 13 In 577 No 88-493 U.S. 182, 110 S. Ct. (_University of Pa. v. EEOC_, 1990), Judge Blackmun noted that employers such as law firms could also argue that peer-review materials are critical to employment decision and should be protected from disclosure, therefore "we perceive no limiting principle in petitioner's argument." 14 Derived from a definition in J. A. Simpson and E.S.C. Weiner, *The Oxford English Dictionary*, 2d Edition, Vol. XI 437 (1989). 15 State ex rel. _Wellford v. Williams_, 110 Tenn. 549, 75 S.W. 948, 64, L.R. A. 418 (1903); see also Nedda C. Allbray, *Government, Science, Technology and the People's Right to Know*, Ph.D. dissertation, Columbia University, 1988. 16 Harold L. Cross, *The People's Right to Know, Legal Access to Public Records and Proceedings* 180 (1953). 17 Harold L. Cross, *The People's Right to Know*, footnote 3, 306 (1953). 18 Harold L. Cross, *The People's Right to Know*, 25 (1953). 19 Steven J. Helle, "Wither The Public's Right (Not) to Know? Milton, Malls, and Multicultural Speech", *University of Illinois Law Review Fall* 1077-1100 (1991); "Free speech is meaningless unless the public is free to gather information about which to speak." Cleveland, Harlan Cleveland, The Cost and Benefits of Openness: Sunshine Laws and Higher Education, *The Journal of College and University Law*, 12, 2, Fall 130 (1985). 20 However, the U. S. Constitution's Bill of Rights does call for open trials, see U.S.C. Article [VI.] "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial." 21 The Reporters Committee for the Freedom of the Press, Tapping Officials' Secrets (1993) analyses the FOI statutes for all the states. 22 For example, Chicago mayor Harold Washington enacted a Freedom of Information Order, signed on May 16, 1983 by his Chief of Staff, William Ware. 23 Harlan Cleveland, The Cost and Benefits of Openness: Sunshine Laws and Higher Education, *The Journal of College and University Law*, 12, 2, Fall 127-157 (1985). 24 48 797, 363 NE2d 438 (Ill. App. 3d 1977) 25 Peter T. Flawn, A Primer for university presidents: Managing the modern university (1990), p 26 412 NE2d 188 (Ill. App. 1980) 27 The Federal FOI Act is qualified in that it originally had nine exemptions to release; however, Congress has amended the law over 20 times, redefining its scope. including invasion of privacy. 5 U.S.C. section 552 (b)(6). 28 5 U.S.C. Section 552 (1966), including the _Reform Act_ of 1986, now known as: 5 U.S.C. Section 552 of P.L. 404 Statute. 237 (1946), as amended through the conclusion of the 103rd Congress, First Session (1994). 29 U. S. Congress, House Committee on Government Operations. Government Information, Justice, and Agriculture Subcommittee, *A Citizens Guide on Using the Freedom of Information Act and The Privacy Act of 1974 to Request Government Records* (fourth report) (1991). 30 Under the Tenth Amendment, education is one of the powers reserved for the states. U.S.C. Article [X.} "The powers not delegated to the United States by the Constitution nor prohibited by it to the States, are reserved to the States respectively, or to the People." Federal courts do not intervene in school disputes unless constitutional rights are threatened, or federal law is violated. School officials, teachers and staff are agents of the state when performing their official duties. 31 5 U.S.C. section 552a (b) (1988). The _Right of Privacy Act_ regulates federal government agency record keeping and disclosure practices and allows citizens to gain access to records about themselves to correct errors. It states that information gathered for one purpose cannot be used for another, and that agency files must be accurate, complete, relevant, and timely. Under this Act, agencies are not allowed to keep any secret records--they must publish a master list of all the records they maintain. 32 Under the _Occupational Safety and Health Act_ of 1970, employees have the right to know about hazardous substances in the workplace, the presence of which could affect the conduct of laboratory teaching and research at colleges and universities. Universities must inform workers, state and local agencies, and community residents by issuing material safety data sheets, training, inventories, and other information. Once provided to federal agencies, this information often becomes available to the general public, either through FOI petitions or by means of routine agency disclosure practices. 33 FERPA U.S.C.  1232 (g) pre-empts state law as regards access to student records. Congress enacted FERPA in response to parents having to resort to the judiciary to inspect and control the information that schools recorded about their own children. With FERPA, "an educational philosophy emerged that acknowledged the right of the parents (and students 18 or over) to be involved in the educational process by having access to educational records, to challenge the accuracy of those records, and to have some authority over their dissemination." Louis Fischer, & Gail P. Sorenson, *School Law for Counselors Psychologists and Social Workers* (Second ed.) 73 (1991). Sometimes schools inadvertently violate FERPA, for example, by giving private information to regulatory bodies, which in turn are not protected by FERPA, and therefore the records are not secure. _Arkansas Gazette Co. v. Southern State College_, 620 S.W. 2d (Sup. Ct. of Ark. 1981). 34 U.S.C.  1232 (g) _Family Educational Rights and Privacy Act_ of 1974. 20 Section 1221 NT. 35 For example, _Arkansas Gazette C. v Southern State College_ 1981, 620 S.W. 2d 258, 273 Ark. 248. Records maintained by and intercollegiate athletic conference about the amount of money given out to student athletes were not "student records" required to be closed to the public. 36 Pub.L 101-542, Title I, Nov. 8, 1990, 104 Stat. 2381 (20 Section 1232g), The _Student Right-to-Know and Campus Security Act_ of 1990 requires federally funded institutions to report detailed graduation information to the Secretary of Education. Congress excluded campus crime records from FERPA's "education records" definition, giving some students the opportunity to gain a clearer picture of crime on their campus. The law encourages the release of several kinds of information thought by legislators to be important to potential students and parents. It includes required publication of campus crime statistics, graduation rates of certain classes of students (in particular, athletes) and other information which lawmakers seemed to think universities were not making public. Statistics for graduation of all students must be made public, including how long it takes the average student to get a degree, and how many of those who enter do eventually graduate. Academic neglect of student athletes caused the athletic emphasis of the law. The law explicitly exempts campus police records from FERPA protection. 37 The Department of Education must by law collect the data, not analyze it. The first annual campus crime statements mandated by the Act were reported in a long article by Anne Matthews, The Campus Crime Wave, *The New York Times* , March 7, 1993. The article reported 30 murders, nearly 1,000 rapes, 1,800 robberies, 32,127 burglaries, and almost 9,000 motor vehicle thefts, totals which reflected only one-quarter of the schools that are supposed to comply with the Act. 38 Steven J. Helle, "Wither The Public's Right (Not) to Know? Milton, Malls, and Multicultural Speech" * University of Illinois Law Review Fall* 1077-1100 (1991). 39 Harlan Cleveland, The Cost and Benefits of Openness: Sunshine Laws and Higher Education, *The Journal of College and University Law*, 12, 2, Fall 132 (1985). 40 For example, the University of Illinois at Urbana has 26,300 undergraduate students, 10,000 graduate and professional students, 1388 acres with 193 major buildings, 2,000 academic professional staff, 5,000 regular staff, and a faculty of 2,140 members. There are up to 800 clubs, coalitions, societies, and teams, a daily newspaper, two radio stations, and Cable TV. (Facts Booklet, 1994, Office of Publications/Office of the Associate Chancellor for Public Affairs) 41 J. Victor Baldridge, Organizational Characteristics of Colleges and Universities. In J. Victor Baldridge, Terrence E. Deal, Cynthia Ingols, (Eds.), *The Dynamics of Organizational Change in Education* 38-59 (1983) 42 Peter T. Flawn,* A Primer for University Presidents: Managing the Modern University* (1990) 43 See Keyishan v Board of Regents, 385 U.S. 589 (1967) and _Sweezy v. New Hampshire_, 354 U. S. 234 (1957), also, Caitlin M. Scully, Autonomy and Accountability: The University of California and the State Constitution, 38 *Hastings Law Journal* 927, July (1987). 44 Derek C. Bok, *Beyond the Ivory Tower* (1982); Frederick M. Wirt and Michael W. Kirst, *The Politics of Education: Schools in Conflict* (Second Edition) (1989). 45 The Reporters Committee for the Freedom of the Press, Tapping Officials' Secrets, Washington, D.C., analyses the FOI statutes for all the states (1993). 46 Jean W. Ward, & Kathleen A. Hansen, *Search strategies in mass communication* (1987). 47 E. C. Wallenfeldt, * American Higher Education, Servant of the People or Protector Of Special Interests?* 78 (1983). 48 Federal laws such Title VII and FERPA (_Family Educational Rights and Privacy Act_ of 1974) U.S.C.  1232 (g) apply to all schools, public or private, if they receive federal monies in any form. 49 For example, over one million dollars was siphoned off from grant and other income to build an extravagant house for the President of Southern Illinois University -Carbondale. This scandal in 1969 did nothing to reassure legislators that universities could be trusted to manage their own finances with care. 50 E. Culpepper Clark, *The Schoolhouse Door: Segregation's Last Stand at the University of Alabama* (1993). 51 See Martin Anderson, *Impostors in the Temple* (1992); Charles J. Sykes, *Profscam: Professors and the Demise of Higher Education* (1988). 52 "Crisis of Values. The nation's colleges and universities are enmeshed in, and in some ways contributing to, society's larger crisis of values. Intolerance on campus is on the rise; half of big-time college sports programs have been caught cheating in the last decade; reports of ethical lapses by administrators, faculty members and trustees, and of cheating and plagiarism by students are given widespread credence." Wingspread Group on Higher Education. An American Imperative: Higher Expectations for Higher Education, (1993). 53 J. Victor Baldridge & Terrence E. Deal, The Basics of Change in Educational Organizations. In J. Victor Baldridge, Terrence E. Deal, Cynthia Ingols, (Eds.), *The Dynamics of Organizational Change in Education* 5-6 (1983). 54 J. Meyer & B. B. Rowan, The Structure of Educational Organizations. In J. Victor Baldridge, Terrence E. Deal, Cynthia Ingols, (Eds.), *The Dynamics of Organizational Change in Education* (1983). 55 Trust is destroyed when university documents are found to show unethical medical experiments. See Joe Tevlin, The Man Who Nailed Najarian, *Minnesota Monthly*, July, 40-66 (1993). U. S. Energy Secretary Hazel O'Leary is currently trying to "come clean" on harmful experiments, some of which were conducted at university hospitals, as widely reported in articles such as U.S. used poor, sick for testing radiation, San Francisco Examiner, Jan. 9, 1994, at A-1, A-6. See also David Pritchard and Craig Sanders, The Freedom of Information Act and Accountability in University Research, *Journalism Quarterly*, 66, 2, summer, 402-409 (1989). The authors argue for more openness about federally funded university research through FOI laws, and that freer flow of information would lead to less fraud and more public review of research procedures. 56 Meyer and Rowan (1983). 57 See Cleveland (1985), or Frank A. Vickory, The Impact of Open-Meetings Legislation on Academic Freedom and the Business of Higher Education, 24 *Amer.Bus. L.J.* 437 (1986). 58 Flawn, 2 (1991), Frank M. Baglione, Title VII and the Tenure Decision: The Need for a Qualified Academic Freedom Privilege Protecting Confidential Peer Review materials in University Employment Discrimination Cases, *Suffolk University Law Review*, Volume XXI, 3, Fall 691-721 (1987), Smith, Protecting the Confidentiality of Faculty Peer Review Records, 8 *Journal of College and University Law*, 20- 22 (1981). 59 623 N.E. 2d 51 (Ohio 1993)(_Beacon Journal Publishing Co. v. Kent State University_ 1993). 60 Redaction is the practice of deleting portions of confidential material before disclosure; for instance, deleting Social Security numbers. 61 623 N.E. 2d 51 (Ohio 1993) _Beacon Journal Publishing Co. v. Kent State University_ (1993). 62 Joshua A. Gerstein and Philip P. Pan, Education Dept. Findings Dispute Harvard's Claims, *The Harvard Crimson*, Vol. CXCIII, 40, Nov. 1 (1990) at 1. 63 U.S. Department of Education, Office of Civil Rights, Harvard College Admissions Process Compliance Review No. 01-88-6009, OGC File No. H10/DBP70082. 64 Gerstein is quoted as saying: "The law is basically to cover recommendations from people that have interviewed you or have known you for some period of time and are therefore in a position to make a recommendation on your behalf...[The University] is trying to expand it to include admissions committee members who have never met the applicant and who know absolutely nothing about the applicant except what they can read from the paper. " Stephen Glass, Harvard case opens admissions records. *The Daily Pennsylvanian*, March 3 (1992) at 1, 3. 65 Leroy S. Rooker, Director, Family Policy Compliance Office, U. S. Dept. of Education. Complaint No. 0377 . In a 1991 letter to Harvard President Neil Rudenstein, Rooker held that the summary sheet at issue was an education record subject to FERPA, and that the University violated FERPA when it denied Mr. Gerstein the right to inspect and review those portions of the summary sheet that were not excepts from, or specifically derived from, confidential letters and statements of recommendations to which he had waived his right to inspect and review under 34 CFR 99.12. 66 Charles N. Davis, Scaling the Ivory Tower: State Public Records Laws and University Presidential Searches, Proceeding of the Association of Educators in Journalism and Mass Communication (AEJMC) National Conference (1994). Davis found that state legislatures often changed the law after the court decisions, closing the door to public access to candidates' names. 67 Charles N. Davis, Scaling the Ivory Tower: State Public Records Laws and University Presidential Searches, Proceeding of the 1994 Association of Educators in Journalism and Mass Communication (AEJMC) National Conference. A similar result occurred in Georgia, in 1989, in _Board of Regents of the University System of Georgia v. Atlanta Journal and Atlanta Constitution_. 259 Ga. 214, 378 S.E. 2d (GA. 1989), and in _Toledo Blade_, Ohio Supreme Ct. (1993). 68 *Las Vegas Review Journal*, Aug. 10 (1994). 69 Alas. Rev. Code 09.25.110 (1993). 70 _Lexington Herald-Leader Co. v University of Kentucky_. 71 Tenn. Code Ann. Section 10-7-101 (1993). 72 Based on Fla. Stat. 119.01 (1) (193) See Clark, footnote 61; see also _Wood v Marston_ (1983). 73 Kate Culver, Behind Closed Doors. Quill, 81(8), 20-21 (1993). 74 In _State ex re. Toledo Blade Co. v. University of Toledo Foundation_, 91-1785 (Ohio Supreme Court 1993). 75 For more discussion, see University Foundation Subject to Records Disclosure Law, *National Law Journal*, Feb. 15, 48 (1993). 76 In _State ex re. Toledo Blade Co. v. University of Toledo Foundation_, 91-1785 (Ohio Supreme Court 1993). 77 78 _Doe v The Red & Black Publishing Co_, Georgia Supreme Court. November (1993). 79 J. A. Simpson and E.S.C. Weiner, *The Oxford English Dictionary*, 2d Edition, Vol. XVII 791 (1989) 80 Congress enacted Title VII of the _Civil Rights Act_ of 1964 , 78 Stat. 255, as amended, 42 U.S.C. at 2000e-2(a) (1982 ed.) which makes it unlawful to discriminate against anyone of the basis of race, color, religion, sex, or national origin, to halt the widespread and compelling problem of discrimination in the workplace. In 1972, Congress eliminated the specific exemption applied to educational institutions, because of the compelling problem of "invidious discrimination" in educational institutions. The House specifically mentioned the lack of access for women and minorities to higher ranking, tenured positions. (Supreme Court, 1990) 81 See the Note, Civil Rights--Academic Freedom, Secrecy and Subjectivity as Obstacles to Proving a Title VII Sex Discrimination Suit in Academia, 60 *N. C. L. Rev.* (1982). 82 Robert K. Robinson, Geralyn M. Franklin, and Billie M. Allen, The University of Pennsylvania v. EEOC: The Demise of Academic Freedom Privilege in the Peer Review Process, *Labor Law Journal* 41 (6) June 364-369 (1990). 83 In Dinnan, 661, F.2d 426 (5th Cir. 1981) and other cases discussed in full in Robert K. Robinson, Geralyn M. Franklin, and Billie M. Allen, The University of Pennsylvania v. EEOC: The Demise of Academic Freedom Privilege in the Peer Review Process, *Labor Law Journal* 41 (6) June, 364-369, notes 72-75 (1990) ; Frank M. Baglione, Title VII and the Tenure Decision: The Need for a Qualified Academic Freedom Privilege Protecting Confidential Peer Review materials in University Employment Discrimination Cases, *Suffolk University Law Review*, Volume XXI, 3, Fall 691-721 (1987). 84 _EEOC v Notre Dame Du Lac_ 715 F.2d (7th Cir. 1983). 85 Ibid. at 332 86 Ibid. at 333. 87 Ibid. at 336, 337. 88 493 U.S. 182, 110 S. Ct. (_University of Pa. v. EEOC_, 1990) 89 Ibid. at 14 . 90 Ibid. Blackmun referred to Rep. No. 92-238, 19-20 (1971). 91 493 U.S. 182, 110 S. Ct. at (_University of Pa. v. EEOC_, 1990) 92 Ibid. at 4. 93 Harry S. Broudy, *Truth and CredibilityDThe Citizen's Dilemma* (1981). 94 Burton R. Clark, * Adult Education in Transition* 65 (1956). 95 E-mail is a cloudy area. In the so-called PROFS case, E-mail was construed to be a public federal record. _Armstrong v Bush_ 924 F2d 282 (D.C. Circuit 1991). E-mail is extremely easy to delete, however, and could pose a threat to FOI and to loss of public trust. Databases need to be designed with FOI in mind, so that special programs are not needed to make information available. 96 A good overview of this topic is found in Matthew D. Bunker, Sigman L. Splichal, Bill F. Chamberlin, & Linda M. Perry, Access to Government-Held Information in the Computer Age: Applying Legal Doctrine to Emerging Technology, *Florida State Law Review*, Vol. 20, 3, Winter 543-598 (1993). 97 There is a vivid illustration of this concept in Michael Taggert Freedom of Information and the University, *Otago Law Review*, 6, 4, discussion of Re James and others and Australian National University 659-660 (1988). 98 577 No 88-493 U.S. 182, 110 S. Ct. at 22 (_University of Pa. v. EEOC_, 1990). 99 Frank M. Baglione, Title VII and the Tenure Decision: The Need for a Qualified Academic Freedom Privilege Protecting Confidential Peer Review materials in University Employment Discrimination Cases, *Suffolk University Law Review*, Volume XXI, 3, Fall 691-721 (1987). 100 Janet Reno, Federal News Service March 16, 1994, Special Transcript of her Address. to the National Press Club. 101 Memorandum for Heads Of Departments and Agencies about the Freedom of Information Act, Issued by the White House, October 4, 1993 102 "Under the new policy, the department will no longer defend an agency's withholding of information merely because there is a substantial legal basis for doing so. Instead, the department will now apply presumption of disclosure in all FOIA Act cases. If an agency cannot overcome this presumption of disclosure, the Department of Justice will not defend a decision to withhold information." Janet Reno, Ibid. 103 "Our new policy is that the Justice Department will not defend the assertion of Freedom of Information Act exemptions unless the agency reasonably foresees that disclosure would be harmful to a government or private interest protected by the exemption. No longer will we defend nondisclosure in cases where information only technically or arguably falls within an exemption." Janet Reno, Ibid. 103 * National Law Journal*, Nov. 24, 1986, quoting Jerry Jay Bender, South Carolina Press Association attorney.