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To set the scene: Zoom in from Wisconsin to Governor Scott Walker's and the Wisconsin legislature's ultimately successful effort to radically scale back public sector collective bargaining rights. Shift to the popular response against that effort in Madison (and elsewhere in the state), and focus on the work of academics at UW-M like History professor William Cronon. Now, consider the latest iteration of this battle -- a state FOIA request filed by the state Republican Party and a libertarian think-tank seeking emails from Cronon:

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.

Political payback against a state employee who had started a blog specifically to fight on behalf of organized public sector labor and who had published an op-ed in the New York Times? You betcha. It's part of a long though quite rich recent tradition of such uses, and it was apparently such a great idea that a parallel request has been made of professors at state universities in Michigan. I tend to view administrative procedures with a somewhat jaundiced eye, so let's start counting ironies here:

1.  Party switch. Republicans and conservatives have historically disliked the federal FOIA. President Ford vetoed major amendments intended to tighten the statute after several narrowing judicial constructions; a Democratic-controlled Congress overrode. The state story is more complicated, and open government has a "good-government" aura about it that doesn't necessarily align with any particular party. But in the post-Nixon era, general ideals about the necessity of "transparency" have generally trended, and trended strongly, towards Democrats. Times do change, though. Nowadays, even Karl Rove loves the FOIA.

2.  Ethical prison. Cronon and his supporters, including Paul Krugman, are boxed in: Their political and ethical commitments make them strong supporters of FOI laws and open government; they just don't like this request, because it's a form of harassment and political payback, a fishing expedition that may turn up nothing but that will certainly intimidate public employees' political activism.

3.  The illusion of FOIAvoidance. The assumption by many of his supporters is that surely Cronon, a quite accomplished professor and all-around smart guy, conducted any overtly political email exchanges via his private email account. In fact, he's said that he has long conducted "private" email correspondence on his own computers and via private email accounts. That would, at least in theory, preclude them from UW's response to the request, no? No! Suppose the History Department decided to cancel a faculty meeting so that its faculty could attend an anti-Walker rally, but they all decided to use their gmail and yahoo! and g-d help us aol accounts to communicate with each other. Or worse, suppose Cronon simply forgot which email account and which computer he was using, and sent a clearly official, departmental email via his gmail account. Or suppose he did so intentionally. Surely at some point the law can't abide either malfeasant or nonfeasant efforts to avoid the law -- which are of course fairly common (hey, Sarah Palin did it!). In fact, there's a Wisconsin Attorney General opinion directly on point: it doesn't matter what email account a public official uses for "official business," it's all potentially subject to the FOI law. Does this mean all of Cronon's emails must be disclosed? No, but it does mean that the search for emails that are responsive to the request would need to include those from his private account as well.

4.  The price of priceless administrative values. Which brings us to the sheer unfairness of this request, from Cronon's perspective. Unless he's willing to give over every email that is responsive to the request which he's sent from every account, then someone will have to review them to try to make the distinction between "official business" and non-OB, as well as perhaps redact portions of individual messages. (Thanks, libertarian think-tank and Republican Party, for increasing the taxpayers' tax burden with lots of attorneys' fees and busy bu-ro-cratic paperwork!) At the same time, it's nice to hear concerns about the compliance costs involved in responding to FOIA requests -- although, again, it's ironic to hear it coming from those who are complaining now. It was professor of Administrative Law (and soon to be DC Circuit Judge) Antonin Scalia who characterized the FOIA statute as ?the Taj Mahal of the Doctrine of Unanticipated Consequences, the Sistine Chapel of Cost-Benefit Analysis Ignored? in a 1982 article in the Cato journal Regulation. Transparency advocates lobby heavily, and sometimes quite rightly, against high fees imposed for FOI requests. But someone's got to pay for this, and during times of economic crisis, compliance takes money and labor from something else that government employees might be doing. This is a worthwhile lesson for everyone -- recognize transparency's direct costs.

I thoroughly appreciate the difficult position that Professor Cronon finds himself in, especially as I am a public official in the state of Florida, which has arguably the most exacting sunshine laws in the country (enshrined in our state constitution no less) and where one of the key state supreme court decisions enforcing the open meeting act concerned a dean search at my law school (Wood v. Marston, 442 So. 2d 934 (Fla. 1983)). In fact, Cronon quite persuasively makes the case that many purely professional and academic tasks that he engages in cannot or at least should not be disclosed to the general public, whether to protect the privacy of communications with students (hello, FERPA, maybe!) or to protect the integrity of deliberative processes of the very distinguished academic collegial bodies of which he is a member. The problem, however, is that many government officials can and do make similar claims about their own work, as Jack Shafer of Slate has noted. Working at a flagship state university is an awe-inspiring experience, in some ways more rewarding than working at a school like Yale, which Cronon left to move to Madison. But engaging in the great land grant college project (itself made vulnerable by a waning commitment to public higher education by legislatures and governors like those who currently govern Wisconsin) makes one a public employee, for better and worse. 

What's interesting about the dynamic of this dispute is that while we easily recognize the political uses of facially neutral procedural rules in rulemakings at the federal and state level, extending that insight to open government laws seems heretical. There is something about the ideal of transparency that leads people to think that its inevitable extension to almost everything public and governmental should be above the political fray. Hence Cronon's plaintive, understandable, but undoubtedly futile response to the requesters: For the good of the university and of higher education, please withdraw this request. If you follow any of the comment strings of newspaper and blog posts on this story, you will see one or more Republicans responding quite bluntly: It's the law, Cronon, and we're using it.

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