State Law, Policy, and Access to Information: The Case of Mandated Openness in Higher Education

Conclusions/Recommendations: Information resources have expanded tremendously, yet the nature and extent of their availability to the larger public remain in question. How can deeply held values of openness and access be accommodated productively to privacy and security concerns, with minimal threats to each? The article seeks to contribute to a growing body of literature on information policy and its uses in society, in this case, how the public information laws of state governments influence the climate of data access and decision-making in public higher education.

What does the public have a right to know about the colleges and universities that its tax dollars support? Should citizen taxpayers be able to access information about the salaries and travel expenditures of faculty and staff? About the business dealings of members of the board of trustees? About the names, backgrounds, and financial circumstances of finalists for an institution’s presidency? About a university’s plans for a vacant lot adjoining an impoverished neighborhood? About the nature of campus precautions against terrorist attacks? In each of these cases, and in many more domains as well, state legislatures and the courts have made it clear that the public has a right to know quite a bit indeed. A public campus’s information systems and resources are, to a great extent, the public’s information resources. Compared with private institutions in the United States and compared with institutions anywhere else in the world, this nation’s public colleges and universities are remarkably open to outside scrutiny.

Every state in the nation has legal requirements to ensure accountability and fairness in institutions receiving state funds and operating under state authority. Across the 50 states, these laws vary in scope and sanctions,¹ but there is notably similar intent in all these laws: lessening the threat of incompetent, self-interested, or partisan action by those entrusted with public purposes and public funds. By allowing watchful citizens ample opportunity to observe and track institutional actions, state “sunshine laws” have come to significantly influence the ways in which the business of higher education is conducted.

The openness movement in higher education is both new and old. The rhetorical commitment to freedom of information dates to the nation’s earliest days. At the time of its founding, for example, Thomas Jefferson advocated public admission to meetings as a means for ensuring the propriety of government action (Pupillo, 1993; Sunstein, 1986). In 1822, James Madison, in a letter to W.T. Barry, argued that “a popular government without popular information or the means of acquiring it is but a prologue to a farce or a tragedy, or perhaps both. Knowledge will forever govern ignorance. And a people who mean to be their own Governors must arm themselves with the power which knowledge gives” (cited in Hunt, 1910, p .3). A century later, Justice Louis Brandeis (1914) made the same point in starker, more evocative terms: “Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman” (p. 92).

Although the philosophical and political roots of openness run deep in this nation’s history, the practice of open government arose largely out of several American states toward the middle of the 20th century. Over a century ago, Utah and Florida established the earliest requirements for openness in government meetings and records. Concerned about domestic news suppression at the beginning of the Cold War, the American Society of Newspaper Editors in 1950 embarked on a national campaign intended to make the meetings and records of all state governments more open to the press and the general public.² In 1953, New Mexico and California became the first states to adopt comprehensive open-meetings laws, colloquially known as “sunshine laws.” Then, in the 1960s and 1970s, as the media, advocacy groups, and reform-minded politicians began to push for openness as a remedy to corruption and malfeasance across all sectors of government, these laws proliferated and became more stringent and encompassing almost everywhere. By 1976, when New York adopted its Open Meetings Law, all 50 states had enacted comprehensive openness legislation (Barnes, 1971; Pupillo, 1993). During this period, public colleges and universities increasingly came to be subject to sunshine laws, usually with special terms to reflect these institutions’ distinctive legal and organizational features such as faculty tenure (Cleveland, 1985).

Of course, ensuring access to information, in all its multifaceted forms, has long been a prominent concern among advocates of participative governance, civil libertarians, and information professionals. The American Library Association, for example, has strongly expressed its opposition to censorship, suppression, and secrecy of information and extended that commitment to all forms of expression, pledging to “contest vigorously, by all lawful means, every encroachment upon the public’s freedom to view” information (American Library Association, 1990). Among the many other organizations supporting this agenda across varied organizational settings are the Open Society Institute (http://www.soros.org/), the Global Transparency Initiative (http://www.ifitransparency.org/), and the American Society of Newspaper Editors (http://www.asne.org/). Interestingly, in the summer of 2008, then senator Barack Obama joined conservative senators John McCain and Tom Coburn to cosponsor a bill to provide the public Web access to all government contracts (see “Obama and Coburn Shine Brighter Light on Government Spending,” 2008).

Higher education activists and information professionals on campus may find commitments to openness especially challenging in the emerging political and policy environment. Threats of censorship, increased secrecy of and diminished access to government information in post-9/11 America, federal legislation protecting privacy rights in the era of the Internet, and profound advances in information technology represent notable sources of tension for those responsible for ensuring on their campus the broadest possible access to information. As Jaeger (2007) noted, the past few years alone have witnessed a flood of new federal legislation bearing quite significant implications for information policy in the United States: the Telecommunications Act, the Children’s Internet Protection Act, the E-government Act, the Digital Millennium Act, the USA PATRIOT Act, and the Homeland Security Act.

State sunshine laws pose distinctive challenges in that they influence climates for openness on campus in general, and the campus community’s right to information in particular. Over the past half-century, these laws have shaped the governance of public higher education institutions in very powerful ways (McLaughlin & Riesman, 1986). Understanding how the laws influence institutional governance, policy, and leadership may better equip members of the campus academic community, information specialists, and other decision makers to anticipate changes and challenges in their respective arenas.

To that end, our article provides perspective on laws mandating openness in higher education, describing differences in the laws across states and reporting select findings from a study that we conducted on the impacts of the laws on public colleges and universities nationally. The article seeks to contribute to a growing body of literature on information policy and its uses in society (Jaeger, 2007)—in this case, how the public information laws of state governments influence the climate of data access and decision making in public higher education.

MANDATED OPENNESS: THE DIVERSE LANDSCAPE OF STATE SUNSHINE LAWS

There are substantial differences across the states in their climates of openness in public sector settings. More than 20 years ago, Cleveland (1985) created an index of state openness laws that arrayed the states according to 25 characteristics of their sunshine statutes affecting public higher education. He characterized a few states, such as Tennessee and Florida, as exhibiting “great openness” under the law, and he placed others, including Mississippi, Pennsylvania, and Wyoming, on the opposite end of his continuum, as being “least open.” Schwing’s (2000) more recent analysis catalogued open-meetings statutes based on at least nine dimensions, including the following: definitions of public agencies that may be subject to open-meetings provisions; the definitions of meetings, quorums, deliberations, and voting; the conditions under which executive-session privileges may be invoked; and the remedies that the laws provide for violations of the law. Thus, the laws vary significantly in their applicable scope.

In higher education, public institutions are affected by their home state’s version of sunshine laws. Yet, some states apply the laws in distinctive ways across systems or sectors. In California, Michigan, and Minnesota, for example, the flagship universities enjoy a form of autonomy not provided by those states’ constitutions to other four-year and two-year institutions. As a consequence, the flagship universities are exempted from certain legal obligations that are incumbent on the other colleges and universities. Naturally, the actual climate of openness depends not only on these formal legal provisions but also on the distinctive historical, cultural, and political contexts in which sunshine laws are shaped and enforced in a given state over time.

In fact, a particularly notable facet of this area of public law is the frequency with which state legislatures have amended their provisions mandating openness in public meetings and records. Over the past 20 years alone, lawmakers have significantly revised public information laws in California, Colorado, Georgia, Mississippi, New Jersey, North Carolina, North Dakota, Pennsylvania, Texas, West Virginia, and several other states. Indeed, the frequency with which some states have carved exemptions in their sunshine statutes has led many public information advocates to assert that the laws’ effectiveness has gradually eroded.³ In many instances, efforts to weaken or to strengthen the laws have provoked public controversy and debate among the press, public advocacy groups, legislators, and, often, the universities that may be affected by changes in openness legislation. Especially prominent front-page issues involving public colleges and universities have arisen in recent years in Alabama, Georgia, Iowa, Massachusetts, Michigan, Minnesota, Tennessee, and Virginia.

The laws for higher education can encompass virtually all areas of campus functioning, including information resources and presidential selection, physical and academic planning, investments, development and external relations, research, auxiliary operations, campus security, athletics, faculty and staff hiring, trustee appointments, employee relations, and business operations. In each arena, institutions are usually required to provide public access on request to all documents and to give advance public notice and access to all governance meetings. States usually grant exceptions to protect privacy on matters relating to personnel, including issues relating to presidential searches and individual faculty and staff evaluations. States sometimes also grant exceptions for matters in which the public interest might actually be harmed by disclosure, such as would be the case in certain real estate or licensing negotiations. But such exceptions are not universal. For example, in Florida, every area of institutional management and governance is subject to full public view, including the critical comments of departmental colleagues and external reviewers on individual faculty promotion and tenure cases.

These laws create an inherent tension among several desirable but often conflicting goals in public colleges and universities: ensuring the accountability of public agencies, protecting the privacy rights of individuals, and providing institutions the autonomy they need to achieve their public purposes.⁴ Cleveland (1985) termed the tensions among these three goals a “trilemma” for those pursuing public openness. The laws were initially implemented to ensure that the public good rather than private gain drives decision-making in publicly controlled or funded entities. So conceived, the laws bring distinctive advantages and disadvantages. Ideally, sunshine laws foster democratic responsiveness inasmuch as they can provide a check on governmental power by setting the press and public information advocates against governments and their agents (Oakes, 1962; Sherman, 2000). By diffusing information and making it broadly accessible to different interests within society, public information laws help thwart the overaccumulation of power by too few interests. The laws can also foster accountability by ensuring that citizens in a representative democracy have access to information about their government and thus are able to make reasoned decisions. As Yudof (1983) has noted, “the notion of a citizenry’s right to self-government necessarily implies a right to gather information from one’s government, even when the government resists disclosure” (p. 249).

At the same time, there are unquestionably some potential disadvantages to the laws. Most obviously, building infrastructure to comply with the letter of sunshine laws can be costly. For example, if a state requires a response to a freedom of information request within 5 days (and many require precisely that), staff and information systems must be in place, ready to be mobilized, to provide by the deadline the material requested, no matter how extensive or obscure it might be. Relatedly, the laws can potentially be employed in questionable ways to serve arguably individual rather than public interests. The laws may shape personnel decisions in harmful as well as useful ways. In a state with aggressive sunshine laws like Florida, for example, if the most appropriate external reviewers for a junior faculty member’s promotion and tenure are unwilling to comment for the public record on the candidate’s research, less appropriate reviewers may need to be chosen, perhaps compromising the review and ultimately affecting the quality of the tenured faculty workforce. The laws can also potentially corrupt communication patterns by reducing opportunities for off-the-record conversations among decision makers. The laws can potentially limit the willingness of likely candidates for high-level leadership positions to allow their names to be considered because of possible political vulnerabilities emerging on their current home campuses. The laws can potentially threaten individual privacy in the interest of public disclosure. Finally, the laws may compromise certain aspects of university operations, especially those relating to taking action in real estate and investment markets.

A NATIONAL STUDY OF MANDATED OPENNESS AND HIGHER EDUCATION

Given the potentially significant impacts of sunshine laws on campus effectiveness, it is not surprising that the application of these laws to higher education has provoked ongoing controversy and debate. More surprising is that so little systematic attention has been given to understanding the laws and their impacts in higher education. With support from the Association of Governing Boards of Colleges and Universities and the Center for Higher Education Policy Analysis at the University of Southern California, we previously undertook a field study of state sunshine laws to examine the impact that these laws are having on the governance of public higher education systems and institutions (McLendon & Hearn, 2005, 2006a). As part of our research, we conducted intensive site visits to six states: California, Florida, Iowa, Massachusetts, Texas, and Washington. In each state, we collected documents (e.g., newspaper articles, legislation, and reports) and interviewed key informants. Altogether, we interviewed 92 officials, including members of governing boards, college and university presidents and general counsels, faculty senate leaders, members of the press, attorneys general, state agency officials, and legislators. We also interviewed national observers with firsthand perspectives on sunshine laws, including public information advocates, leaders of national higher education associations, and executive search firm consultants.⁵

Our study of sunshine laws in higher education was the first of its scope in nearly 20 years, and it unearthed a number of findings that both upheld and challenged elements of the conventional thinking on the laws’ impacts on campus functioning. The findings reveal much about institutional climates for decision-making and thus may hold important implications for decision makers and information professionals on university campuses. In the section that follows, we explore briefly a number of relevant findings.

First, although we found considerable variation across states and systems with respect to the levels of awareness about openness issues in higher education, we discerned no evidence of a general trend among state governments away from openness. Although in many states, recent changes in the laws mandating openness have in fact weakened the public’s right to know, amendments to the laws in other states have actually strengthened the climate for openness.⁶

Indeed, it seemed clear to us that sunshine laws have become increasingly institutionalized in higher education governance over the past 30 years. Openness is a widely shared value, and respondents repeatedly told us that maintaining open meetings and records is essential for ensuring public trust in public colleges and universities—even though openness often is uncomfortable for, and sometimes resented by, campus leaders because of the impositions that the laws create. As might be expected, media officials and faculty leaders held the most uniformly positive views of mandated openness in higher education. Institutional leaders, however, also voiced strong support, often espousing their commitment in terms suggesting the importance of transparency in promoting democratic values within the academy and in the broader society. Of course, although the espousal of these principles on a personal level may not always translate into institutional practices promoting compliance, the avowed commitment of campus leaders to openness stands in stark contrast with the view, popular in some quarters, that leaders doubt the underlying importance of the public’s right to information.

Our research interviews also revealed a shared concern that notable confusion and ambiguity surrounds the precise application of sunshine laws. In fact, we found substantial confusion surrounding the details of openness requirements for public higher education. Many factors contribute to this misunderstanding, including frequent changes in the laws and in their interpretations by legal authorities, which can change a state’s requirements and therefore generate uncertainty about the institution’s requirements under law for monitoring, interpretation, and enforcement of the laws.

That condition, however, points to a prospectively important role that academic information systems (including resources held in libraries, shared databases, and university archives) could play in bolstering the climate for openness on campus. Given their mission and resources, these systems can help fill the information gap by facilitating and promoting the academic community’s rights, under state law, to access to information about the institution and its governance.

Those responsible for campus information systems should also recognize, however, that playing a more visible, active role in facilitating information about the public’s right to know may incur increased costs of various kinds. Our field study pointed to numerous instances whereby parties used the laws in questionable ways that benefitted private, rather than public, agendas—what some of our informants called the “weaponizing” of public information laws. For example, commercial interests sometimes have used the laws to gain an advantage over competitors; so too have parties involved in collective bargaining to gain an upper hand in negotiations and disputants involved in litigation as a means to skirt “discovery” rules.⁷ Although these kinds of arguably excessive uses and misuses of the law tend to be the exception rather than the rule in most university settings, the weaponizing of sunshine laws has the potential to impose notable costs on administrative units that provide information to the public regarding campus governance.

Despite the tension in some quarters surrounding public information requests, our analysis suggested that members of the mainstream media tend generally not to be especially negative toward higher education, and their requests for information under the law tend to be perceived by campus officials as appropriate and reasonable. Although reporters do view academic organizations as naturally prone to secretiveness and cumbersome procedures, the mistrust that many believe exists between campuses and their leaders and members of the media is not as prominent as many might believe. Reporters, we found, typically prefer accommodation and compromise, rather than conflict and litigation, regarding information requests, and many institutions have fostered productive relationships with the media in processing public information requests.

Because the broader context of campus governance can affect the aspirations, resources, and effectiveness of academic units that store and provide information, as well as other units on campus, it is useful to note some of the ways that mandated openness impacts governance at the highest levels of the institution. For instance, whereas some respondents indicated that sunshine laws actually had improved board performance by exposing boards to “the real world,” many institutional leaders and board members told us that awareness of public access to the meetings or records of board meetings lowered the quality of board deliberations and communication. With reporters and activists in the room or waiting to review agendas, reports, and meeting transcripts, boards may, in many instances, avoid controversial issues or deliberate on them superficially. Likewise, fear of the public glare often makes board members reluctant to ask the “dumb questions” or merely to ask for information that would help them better perform their duties. This fear of public embarrassment results in many trustees claiming that they don’t know as much as they should about the operations of their campuses.

Another finding of our study involves perhaps the most widely visible aspect of openness laws: Under sunshine laws, presidential search and selection processes raise especially difficult challenges for university boards. Issues in this arena are perhaps the most controversial and litigated ones of all of those pertaining to mandated openness in higher education (e.g., Estes, 2000; McLaughlin & Riesman, 1986; McLendon & Hearn, 2006b; Sherman, 2000). Litigation over the public’s access to presidential searches has involved a number of universities, including Michigan State, Georgia State, and the Universities of Kentucky, Michigan, Minnesota, New Mexico, and Washington. In all those cases, suits brought by news organizations alleged that a presidential search committee had illegally withheld public records pertinent to a search or had met illegally during the search for its new president.⁸

In these cases and others, the principal challenge was essentially the same as that identified by Cleveland (1985) years earlier: how best to weigh the competing demands of making information available to the public to ensure accountability, of ensuring the effectiveness of institutions in recruiting capable candidates, and of protecting the candidate’s individual privacy rights during a search. In operational terms, the questions confronting states, their public universities, and public information advocates are complex: Should the names of all applicants and nominees for a university presidency be subject to public disclosure, or only the names of finalists? Should the public have access to the proceedings of presidential search committees, including meeting minutes, evaluations of candidates, or, as was determined in Ohio and North Carolina, even the handwritten notes of committee members? At what stage of the search process should such information be made available? To what extent does the use of executive search firms by public higher education institutions advance the public interest? Essentially, the tension surrounds information—what information, in what amount, in what arena, and at what stage in the process of hiring a new president, should be made available to the public?

The foremost concern among critics is that complete openness may have a “chilling effect” on searches, diluting both the quality and the quantity of applicants for the position of president. Virtually all the college and university chief executives said that sunshine laws vastly reduce the likelihood of sitting presidents applying for openings at peer institutions. The belief is that candidates already holding presidencies at comparable institutions are unwilling generally to expose their candidacies to public view for fear of losing the backing of the board and core constituencies at their present institutions. As one university president told us, “The best you can do is to attract vice presidents who have not as much to lose by having their candidacy made public.”⁹

Finally, our study revealed that there are a number of newly emerging concerns involving state public information laws and campus governance. One of those newer challenges holding particular relevance for academic libraries pertains to communications technologies. Informants described to us many new legal and policy tensions on their campuses that related to the spread of e-mail, cell phones, and videoconferencing. Because these technologies, unknown at the time that most states’ sunshine laws were first written, cloud the meaning of what constitutes a “record,” a “meeting,” or a “deliberation,” the extent to which existing openness provisions may apply is often unclear. Some officials, for instance, conceded that they were unsure whether their institution’s practice of routine purging of e-mail messages was a violation of state law. Some states have amended their sunshine laws to address these complexities, whereas other states are only beginning to grapple with them.

The growing prevalence and importance of information technologies raises a variety of sunshine-related challenges for higher education institutions. For academic libraries, in particular, the questions are especially salient. What kinds of library records fall under the purview of state open records laws? To what extent do records laws pertain also to government electronic documents? What information about library patrons, their electronic browsing histories, and their lending habits must be disclosed on request (American Library Association, 2007b)?¹⁰ For universities whose academic libraries manage computer centers on campus, what is the obligation to meet requests for information about files detailing the Web sites that students and faculty visit? To what extent are public registry and administrative data—data that governments collect for purposes such as monitoring tax collection activities or regulating discharge of hazardous substances (Day & Maene, 2006)—subject to disclosure under state open records laws? To what extent are administrative data and the sensitive information sometimes contained in a public registry (such as personal or private information about citizens) subject to disclosure? How do state records laws apply in the case of certain special collections, such as those deposited or sponsored by defense agencies or private foundations? In what ways do open records laws govern the destruction of archival materials?

Many academic libraries hold various documents, blueprints, and information about laboratories and other buildings that may have implications for campus security. In the post- 9/11 era, and in the aftermath of the Virginia Tech shootings, understanding what information may be subject to public disclosure and what may be accorded protection under certain statutory exemptions seems vital. Our field study suggests that on many campuses, the level of clarity on, and understanding of, these issues among administrators is not high.

CONCLUSION

Sunshine laws arose out of democratic impulses rather distinctive to the United States: Few other nations have implemented such laws, and none with the aggressiveness of this country. In particular, the traditions of higher education in most nations have been, until recent years, elitist, and the notion of a people’s right to know was rarely, if ever, seen to apply. Thus, experiments in higher education openness in this country are unquestionably an ongoing work in progress, with few road signs to guide the way.

The history of the laws is one of episodic adaptation. As the Watergate era emerged, sunshine laws grew in number and scope, and applications to higher education expanded. Now, new issues are posing new challenges, and new adaptations are imperative. Although metaphors inevitably fall short because descriptions of historical periods or societies, and ever-present references in the media and scholarly work to the “knowledge society” or the “information age,” are unquestionably simplistic in some respects, there can be little question that information issues have risen dramatically in complexity and salience in the past 20 years. Democratic access to knowledge is a value deeply embedded in U.S. law and society, and especially so in our academic institutions. Information resources have expanded tremendously, yet the nature and extent of their availability to the larger public remain in doubt.

Thus, information professionals on campus are at the heart of a central contemporary question. Clearly, there are debates that must involve them. How, in a context of constrained resources, should information on campus policy and decision-making be made available? For providing that availability, what is the distinctive role of information-related units such as institutional research offices, libraries, technology offices, and university archives? How can deeply held values of openness and access be accommodated productively to privacy and security concerns, with minimal threats to each? Ideally, this article will contribute as these inevitable debates move forward.

Notes

1. There is often also substantial variation within states because different postsecondary sectors may operate under somewhat different legal requirements.

2. Other goals included the admission of photographers to courtrooms, television and radio coverage of the U.S. Congress, and fewer closed Congressional committees (Cross, 1953).

3. See McLendon and Hearn (2006a, 2006b) for a discussion of the extent of the scope and the extent of these changes in a number of states.

4. A recent analysis of certain legal issues surrounding the application of mandated openness to e-mail correspondence among government officials reminds us that the tension among efficiency concerns, privacy rights, and openness is present in virtually all public agency settings. The authors observed, “There is an inherent tension between open government on one hand, and government efficiency on the other. Government can become exceedingly efficient when not burdened by the requirements of state sunshine laws, but such efficiency can be both undemocratic and contrary to the public’s interest. At the other extreme, notions of open government for the sake of open government, while sounding nice in the abstract, can easily create paralysis in local government, with public officials unable to coordinate with each other in a way that promotes, not retards, the public’s interest in good government” (O’Connor & Baratz, 2004, p. 721).

5. See Hearn, McLendon, and Gilchrist (2004) and McLendon and Hearn (2006a, 2006b) for an in-depth discussion of our study design and findings.

6. We emphasize that the trends that we observed are ones at the state, rather than the federal, level. Moreover, there are vast differences in recent trends among the individual states. For example, whereas the Tennessee General Assembly has adopted more than 200 exemptions to the state’s open meeting and records laws since those laws were originally enacted (Alligood, 2004), since 2003, Illinois, Kansas, Maine, Missouri, and South Dakota have all adopted notable changes to their laws that have enhanced the climate for openness in those states (Reporters Committee, 2003, 2004a, 2004b).

7. Our interviews with campus officials revealed many other specific examples, including requests by individuals for an institution’s entire archive of electronic mail, and a request for a record of every meeting involving a university’s president over the past 3 years.

8. See McLendon and Hearn’s (2006b) detailed discussion of recent litigation involving presidential search and selection in public higher education.

9. Stakeholders differ sharply in their views on why sitting presidents typically are reluctant to declare themselves candidates for a peer institution’s presidency. Public information advocates often characterize sunshine laws as an effective screen of candidates’ true level of interest in a presidency, and many flatly reject the assertion that sunshine laws have burdened public colleges and universities with second-rate leadership.

10. See also the American Library Association’s (2007a) statement, “Resolution on the Use and Abuse of National Security Letters,” which highlights the profession’s concerns for preserving individuals’ privacy rights, especially those of library users and employees.

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