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Using the Open Records Law To Intimidate Critics 369

Posted by Soulskill
from the in-the-case-of-letter-v-spirit dept.
Layzej writes "On March 15, Professor Bill Cronon posted his first blog. The subject was the role of the American Legislative Exchange Council in influencing recent legislation in Wisconsin and across the country. Less than two days later, his university received a communication formally requesting under the state's Open Records Law copies of all emails he sent or received pertaining to matters raised in the blog. Remarkably, the request was sent to the university's legal office by Stephan Thompson of the Republican Party of Wisconsin, with no effort to obscure the political motivations behind it. In a recent editorial, the New York Times notes that demanding copies of e-mails and other documents is the latest technique used politically to silence critics."
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Using the Open Records Law To Intimidate Critics

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  • by ShakaUVM (157947) on Sunday March 27, 2011 @07:22AM (#35629026) Homepage Journal

    It's not just Republicans doing this.

    Look at HuffPo's website: http://fundrace.huffingtonpost.com/ [huffingtonpost.com]

    Type in the address of your neighbor, see what political groups they contribute to. They used this to pull a list of Prop 8 contributors in California, to intimidate them.

    I could make some sort of argument about anonymity and free speech, I guess, but apparently these things only matter when it's the other guys doing these acts.

  • by Anonymous Coward on Sunday March 27, 2011 @07:27AM (#35629044)

    The is just as contemptible as the Democrats trying to reinstitute a so-called "Fairness Doctrine" in order to silence Conservatives so I fail to see the newsworthiness of business-as-usual. Whoever is in power tries to topple whoever isn't.

    It is politics which is sleazy and slimy and harmful for those of us just trying to live.

    yes and some fanboi always feels a need to say "but the other guys do it too!" anytime a specific party is mentioned.

    we get it. you are now vindicated. have been for a long while actually. you can relax now. we know it's not just "your team".

    reminds me of the Coast to Coast show last night. that George Noory guy was talking about how much he loves radio. said he doesn't personally like to be on TV. then he felt compelled to add "but no disrespect is intended there for those who like to be on TV". really? really really? you can't have a personal preference anymore, stated in a non-inflammatory way, without reassuring everyone who doesn't share your preference that they don't need to get offended? i suppose next he can run his preferences by them first to make sure they approve.

    is that where we're at in America, are we really that childish? i say let people get their oversensitive panties in a wad if that's what they want to do. fuck 'em. there is no good reason to coddle and accommodate hypersensitivity. some systematic desensitization is what is needed. fanbois like you aren't helping. you're just validating what's wrong with everyone.

  • motivations (Score:5, Insightful)

    by Hazel Bergeron (2015538) on Sunday March 27, 2011 @07:40AM (#35629090) Journal

    If you're going to have an open records law then you don't get to make exceptions for political reasons. Otherwise you end up with the inevitable, "It's only OK to request records for a cause advantaging the sufficiently powerful." It's the listener flip side to declaring freedom of speech then listing a million forms of speech which don't really count as speech.

    The role of the professor in open-minded contemplation / testing ideas / free academic discourse / blah is irrelevant. Everyone should be able to engage in all these things, and life would be even worse if only certain classes of people are exempted on account of being allowed to "think more freely" than others, or something.

    This means that any open records law must be limited in application to specific people in specific roles which affect the public: legislative, executive or judicial. In particular, those representatives directly elected or those appointed by such representatives should expect to have all their correspondence scrutinised.

    Exceptions may only exist when the exception is required to protect the well-being of a private citizen, and they must exist for only as long as that protection is required. For example, correspondence relating to a police investigation would not be appropriate to reveal until the investigation and any judicial wheel-turning is complete, but should be available for perusal after that unless certain private witnesses need protecting. If the witness-protection justification is used, it must be well documented so that, after the natural death of the witness (or as appropriate), records can be revealed and our descendants can study our performance and learn from it.

    Remember also that, while today we think that we have an impossible mound of bureauratic record-keeping, in 100 years time computer systems may be able to intelligently search and analyse more text than we have ever created.

    Alas, the most corrupt will communicate off the record anyway.

  • Re:motivations (Score:5, Insightful)

    by OzPeter (195038) on Sunday March 27, 2011 @07:49AM (#35629128)

    Alas, the most corrupt will communicate off the record anyway.

    This is a key point, as various politicians in recent years have been caught using non official email accounts for their "official" duties.

  • by Anonymous Coward on Sunday March 27, 2011 @07:50AM (#35629134)

    Almost all open records act requests are political. They're mostly made by organizations with an agenda.

  • Over-reaction (Score:3, Insightful)

    by davide marney (231845) * <davide.marney@ne ... org minus author> on Sunday March 27, 2011 @07:56AM (#35629168) Journal

    I don't see anything nefarious about this FOIA request. The author is a public employee, and his emails are public records. Here's the text of the request, in full:

    From: Stephan Thompson [mailto:SThompson@wisgop.org]
    Sent: Thursday, March 17, 2011 2:37 PM
    To: Dowling, John
    Subject: Open Records Request

    Dear Mr. Dowling,

    Under Wisconsin open records law, we are requesting copies of the following items:

    Copies of all emails into and out of Prof. William Cronon’s state email account from January 1, 2011 to present which reference any of the following terms: Republican, Scott Walker, recall, collective bargaining, AFSCME, WEAC, rally, union, Alberta Darling, Randy Hopper, Dan Kapanke, Rob Cowles, Scott Fitzgerald, Sheila Harsdorf, Luther Olsen, Glenn Grothman, Mary Lazich, Jeff Fitzgerald, Marty Beil, or Mary Bell.

    We are making this request under Chapter 19.32 of the Wisconsin state statutes, through the Open Records law. Specifically, we would like to cite the following section of Wis. Stat. 19.32 (2) that defines a public record as “anything recorded or preserved that has been created or is being kept by the agency. This includes tapes, films, charts, photographs, computer printouts, etc.”

    Thank you for your prompt attention, and please make us aware of any costs in advance of preparation of this request.

    Sincerely,

    Stephan Thompson

    If there's anything "chilling" about this request, I sure don't see it. When you write a blog article that is critical of a political party, and get over a half-million hits within days, you should expect a little attention from the people you're poking a stick at.

  • by PopeRatzo (965947) * on Sunday March 27, 2011 @07:56AM (#35629172) Homepage Journal

    The is just as contemptible as the Democrats trying to reinstitute a so-called "Fairness Doctrine" in order to silence Conservatives

    It would be if the Democrats had tried to "reinstitute" the so-called "Fairness Doctrine".

    You have any evidence that they "tried" to do this when they were in power?

    On the one hand you have the Wisconsin GOP actually doing this repressive open records bullying and on the other hand you have this "trying" you speak of that never happened.

    I'm surprised you didn't add "Frst Pst" to your comment.

  • Re:motivations (Score:5, Insightful)

    by PopeRatzo (965947) * on Sunday March 27, 2011 @08:07AM (#35629230) Homepage Journal

    The role of the professor in open-minded contemplation / testing ideas / free academic discourse / blah is irrelevant.

    Actually it's not. The open records law refers to the email of "government officials". A professor, as an employee of the state is not an "official" any more than the janitor. The law is pretty specific about this, actually. The term "government official" has been discussed in court cases and it refers to university administrators but not professors.

    It's harassment pure and simple, but so far everything the Wisconsin GOP has done has blown up in their faces, and it looks like this will, too. They've got to make hay while the sun shines, because recalls are a-coming their way.

  • by hey! (33014) on Sunday March 27, 2011 @08:23AM (#35629302) Homepage Journal

    Er... The media is supposed to be liberal, isn't it? So the fairness doctrine, rather than silencing conservatives, should ensure they have a voice in the public debate, despite the media's liberal bias.

    I remember the post-Vietnam era when "conservative" was a dirty word. Broadcasters, whatever their political position, didn't want to present unpopular positions associated with Vietnam and Watergate, so the only place you heard conservatives was on fairness doctrine mandated segments. I remember a number of local conservative radio personalities that I first heard giving their opinions in one of those times set aside for crackpots under the fairness doctrine. These segments were pretty amateurish affairs; the stations didn't have to help these guys with production values, but these guys learned. The fairness launched some conservative media careers that later proved to be influential.

    Having to present opposing opinions doesn't mean you are silenced, unless your position is so weak that merely hearing an opposing viewpoint will obliterate it in your audience's mind. In the old days in which conservatives had to scrape fairness doctrine time to be heard, they didn't get anything like parity in time; they just got a few minutes now and then preceded by a disclaimer that the station had nothing to do with this nut. The fairness doctrine didn't sweep away the editorial power of the stations. It did keep opposition to the public's prevailing political mood alive.

    Conservatives have done very well by the fairness doctrine, but now that the shoe is on the other foot they've discovered a whole new set of libertarian principles they didn't have when they needed the fairness doctrine to keep their viewpoint from being silenced.

  • by Anonymous Coward on Sunday March 27, 2011 @08:27AM (#35629326)

    But conservatives dominate the mass media, so the socalled effort by dems to demand fairness is nothing but more right wing BS

    Look at , say, Charlie Rose: as R Nader recently posted on www.commondreams.org, a majority of Rose's guests are right of center corporate spokespeople.

    Look at , say, the N Y Times: it acted as a cheerleader in the lies leading up to the Iraq ware (I think lies is an accurate word here)

    Look at how, say the leaders of BofAmerica, Goldman or Citi are portrayed in the media: are they protrayed as crimminals, who ran vast fradulent enterprises (yes, crimminally negligent loan practices) or are they portrayed, say by Obama, as people deserving of their salarys ?

    The truth is that radical conservatives, backed by a handfull of ultra wealthy people (Kochs, Murdoch) dominate nearly everything in this country except universitys and unions; thats why the right is so bent on destroying tenure and collective bargining - it is the one area that is still outside their control.

    And I think "radical conservative" is fair, because, by definition, something that is to the right of what a majority of people in this country think is rightwing; say the union thing in WI; a majority of Americans are opposed; if this were not driven by Koch like money, it would never have got as far as it has

  • Re:motivations (Score:4, Insightful)

    by Hazel Bergeron (2015538) on Sunday March 27, 2011 @08:30AM (#35629340) Journal

    Thomas Mann: "Everything is politics."

    To concern yourself with who pays the man is to engage in non-productive bitterness. Have you ever done work for a company which has at any point benefited from a government contract? Have you ever purchased anything from a company which has benefited from a government contract? Then you are benefiting, however indirectly (and all corrupt beneficiaries benefit indirectly), from the taxpayer and all your records should be made public.

    What matters is not who pays him but the power he has. If the government puts him, say, in some sort of policy-making or judicial role then his work clearly becomes that of a government official. If he's just doing research and teaching students then, well, feel free to judge him on that. He, like any government or private employee, will have an opinion on stuff, and his opinion will affect his work. If you want him to hide that opinion then, well, "don't ask don't tell" doesn't work, OK? If you want his opinion not to influence his work inappropriately, that's fine and that's what the university administration (which is a government official role) comes in.

  • by Attila Dimedici (1036002) on Sunday March 27, 2011 @08:31AM (#35629342)
    I think the proper comparison is to the letters that the police and fire fighters' unions sent to business that contributed to Governor Walker's campaign in last year's election that contained veiled threats if those businesses failed to publicly express opposition to the budget bill that Wisconsin just passed. There is also the cases of Democratic Party affiliated groups using the open records laws to gather the information of people who signed petitions for referendum they opposed and then protesting at those individual's businesses and/or place of employment.
    I find it interesting that until the Republican Party starts to use Open Records laws in this way, no one expresses much concern over Democratic Party affiliated groups doing the same thing.
  • Scary (Score:5, Insightful)

    by node_chomsky (1830014) on Sunday March 27, 2011 @08:56AM (#35629438)

    Apparently the new 'in' thing for fascists is to use the freedom of information act to obtain emails sent by their critics about them. Apparently, academic freedom seems to be dissolving. I don't understand how the freedom of information act can be used to invade the private transactions of professors, but it has happened several times over the last year or so, and has been entirely perpetrated by the increasingly more rabid conservative undertow in this nation, not all conservatives, but a specific group of highly politically (as opposed to socially or morally) motivated people. I had the displeasure of hearing what conservative talk radio sounds like these days while I was driving through the highly conservative '3-corners' region of Missouri (i.e. Limbaugh's homeland), and it is astoundingly racial charged and disturbingly desperate and angry. These people are truly scary, and we really should keep our eyes peeled (as intelligent and reasonable people) for the horrible emerging attitudes in this country. If you asked an average German citizen about their attitudes on putting Jewish people in ovens in 1938, it is likely they would think you were crazy. And if you asked them what National Socialism meant, they would say it had something to do with purity and sexual abstinence, the words like 'Jew' or 'camp' likely would have never come up. No to compare these people to Nazi's, but it illustrates how quickly the most infamous act of hatred in human history can emerge from the consent of a naive population. I guess, ultimately, I am trying to say, that it is our job as being vigilant and morally informed people to see things like McCarthyism and National Socialism before it becomes a problem.

  • by KingSkippus (799657) on Sunday March 27, 2011 @09:10AM (#35629526) Homepage Journal

    The only people I've ever heard talk about reinstituting the Fairness Doctrine are Republicans and their shills. It's especially been a talk radio talking point, and used repeatedly as a scaremongering tactic. I listen to Neal Boortz now and then, and I've heard him constantly harping on how Democrats want to shut down talk radio. The only problem is, I never hear any Democrats actually try to shut down talk radio. It's just a fabrication, another conservative scaremongering tactic just like all the others.

    It's simply not true. I'm about as liberal as they come, and I have exactly zero interest in shutting down or changing talk radio. I mean, sure, some liberal out there has probably mentioned the Fairness Doctrine at some point, but I'm pretty liberal myself and I have exactly zero interest in pushing any kind of law to change or shut down talk radio and I don't know of anyone who does. This clatter all probably rose because someone made an offhand comment, and conservatives saw a chance to jump in and try to scare the bejesus out of everyone, thinking that the big, bad liberals are trying to take away the First Amendment or some crap.

    I normally don't post "Mod parent UP!" posts, but damn, what a day not to have mod points of my own. :( I'd also mod the OP down. "Insightful?" Politics sometimes being sleazy isn't particularly insightful, and the claim that Democrats tried to reinstitute the Fairness Doctrine is an outright lie.

  • by Hartree (191324) on Sunday March 27, 2011 @09:22AM (#35629588)

    "yes and some fanboi always feels a need to say "but the other guys do it too!" anytime a specific party is mentioned."

    And whenever someone posts something pointing out the people you agree with do it too, just label them as a partisan "fanboi" and it makes it all okay.

    If they really are against you, it helps neutralize their argument in the eyes of those on the fence. If they mostly agree with you, but aren't being sufficiently strident, it may well get them to go back to being more polarized to counter you. So, it's a win in either case.

    Oh, and post as an AC so it's hard to link any other views to you. It lets you feign neutrality in the post. And if anyone mentions it, just say it's to keep from being harrassed.

    "fanbois like you aren't helping."

    Look in the mirror.

  • by betterunixthanunix (980855) on Sunday March 27, 2011 @10:08AM (#35629844)
    So...the Democrats, a pro-corporate capitalist party, and the Republicans, a pro-corporate capitalist party, both engage in these tactics. Perhaps we should revisit the idea of voting for some other party?
  • Re:motivations (Score:5, Insightful)

    by currently_awake (1248758) on Sunday March 27, 2011 @10:36AM (#35630056)
    And nothing was done, no punishment dished out. I would expect the practice to continue.
  • Re:motivations (Score:5, Insightful)

    by ajs (35943) <ajsNO@SPAMajs.com> on Sunday March 27, 2011 @11:07AM (#35630306) Homepage Journal

    If you're going to have an open records law then you don't get to make exceptions for political reasons.

    I don't think that any reasonable rationale for an open records law could possibly justify applying it to a professor who is not otherwise engaged in the mechanism of government. Open records laws exist in order to make transparent the process by which a government governs, and a professor is, by default, not a part of that process.

    The role of the professor in open-minded contemplation / testing ideas / free academic discourse / blah is irrelevant. Everyone should be able to engage in all these things, and life would be even worse if only certain classes of people are exempted on account of being allowed to "think more freely" than others, or something.

    You are missing the point. We don't argue for the exemption of the professor because they should be allowed to think freely. We argue for the exemption because it is their job to think freely. We ask them to explore the body of knowledge and thought that we humans have produced and to distill it for us in the form of research and education. We do not ask them to make laws that bind our citizens. We do not ask them to enact or enforce laws. We do not ask them to adjudicate laws. We do not ask them to carry out any of the roles for which open records laws exist. If the goal of open records laws were to allow us to publicly expose the private communications of everyone who espoused a political thought, then I think we should not limit them to government employees. They should apply universally to every citizen. If that's not the goal, then there's just no justification for this abuse of the system in order to score political points.

  • by dkleinsc (563838) on Sunday March 27, 2011 @11:22AM (#35630422) Homepage

    Professor Cronon did just that. It's not his personal correspondence that's at stake here.

    His problem with the request is twofold:
    1. It was clearly done in retaliation for his writing about the American Legislative Exchange Council, since what the request is looking for is information that could be taken out of context to portray him as a left-wing nutcase on the payroll of the unions that are opposing Scott Walker. He's not at all keen on attempts to create a chilling effect on free speech.

    2. Much of his professional correspondence is expected to be confidential, such as conversations with students, working with colleagues on peer reviews of not-yet-published material, or work on the boards of professional organizations he belongs to. If he were working for a private company, he'd have confidentiality and trade secret laws to help protect that stuff.

  • by berzerke (319205) on Sunday March 27, 2011 @12:27PM (#35630978) Homepage

    There are also a number of different ways of determining the outcome of the vote, but just changing the balloting process would undermine the lock that the two-party system has in the U.S.

    Which is why it won't happen. The one thing democrats and republicans will work together on is to stop anything that would enable the rise of a third (or more) party. They will use every legal trick, and probably more than few illegal ones, to stop this.

    The only way this is going to change is for the american voters to wake up and start voting in mass for third party and independent candidates, especially the ones with little campaign funding. That campaign funding comes with some serious strings attached...

  • by corbettw (214229) <`moc.oohay' `ta' `wttebroc'> on Sunday March 27, 2011 @05:53PM (#35633020) Journal

    Changing the voting system would require a huge overhaul of the election process in America. And the two major parties would never, ever do anything to help facilitate that. So, in the meantime, STOP VOTING FOR REPUBLICANS OR DEMOCRATS. It doesn't even matter what "third" party you vote for, but stop wasting your vote on the two big ones.

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