Open Meetings Laws


Open meetings laws typically apply to groups, committees, boards, etc. that have some sort of decision making authority that is considered within the "public" realm. The primary consideration for determining whether a body is public is the source of funding that make up its budget. Any entity that is supported by state dollars will be subject to open meetings laws; thus, giving the public the ability to attend meetings and/or request documents (Schwing 2004).

The Freedom of Information Act, signed into law on July 4, 1966 by President Lyndon B. Johnson, was the first step toward open meetings laws at the federal level. Every state followed suit shortly after, starting with Florida in 1967. While all states currently have open meetings laws as well as open records laws, there is variance relative to how each state law is structured. For example, 41 states require advance notice of meetings, 37 have a mandatory policy of posting the meeting minutes, and in 31 states decisions are only considered final if they were made during an open meeting.

Open meetings laws, often referred to as sunshine laws, have become the norm in American public higher education. Open meetings laws give access to the public, including the media, to almost any working function of university employees including, and most commonly, high profile executive searches for presidents, provosts, coaches and athletics directors; financial decisions; research and intellectual property issues; fundraising data; and athletic department issues. The very nature of these statutes has changed the landscape of higher education in many ways for the faculty, students, and administrators.

Effect on Faculty

Open meetings laws have a wide range on all employees of public institutions of higher education with regard to email correspondence, office files and the like. All employees must be vigilant about the fact that anything in their office or on their computer is considered property of the state; thus, it can legally be requested by the media. This level of vigilance has become the norm on university campuses; however, open meetings laws have provided some other interesting challenges in recent history.

Peter Schmidt with the Chronicle of Higher Education wrote an article in October, 2010 regarding a case in New Jersey involving the Rutgers University Law School. The state of New Jersey ruled that public university law school clinics could not claim immunity from state mandated open records laws. This ruling has devastating implications on the Rutgers Law School because there clinics give students real life law experiences and that work is not significantly compromised without the ability to provide client confidentiality. Additionally, the citizens of New Jersey are marginalized, especially those that cannot afford legal representation because law school clinics provide service to these individuals "pro bono" (Schmidt 2010).

Also in the Chronicle of Education on the "Ticker" is an article titled, "Wisconsin Faculty Urges Administrators to Fight ‘Misuse’ of Open-Records Law." In a political dispute, the Republican Party of the State of Wisconsin attempted to gain access to a University of Wisconsin Professor's emails relevant to a state-wide debate over collective bargaining. The faculty is arguing that their Chancellor must protect the valuable concept of Academic Freedom so that open records request cannot be used in an intimidating or harassing manner. In a move considered to be a compromise, the university agreed to deliver some of the professor's emai correspondence; however, much was withheld and determined to be private exchanges among professors that would fall with the protection of academic freedom (The Ticker 2011).

Effect on Students

Bruce Vielmetti with the Milwaukee - Wisconsin Journal Sentinel wrote an article detailing an opinion by the attorney general's office that made the meetings of student organizations that are associated with government open to the public. The request had come from some students in the School of Journalism as they wanted to report on issues of student government. The contention was that it was important to bring the sunshine laws into student government because they do make decisions that effect the allocation of millions of dollars and operate on a public university campus. The attorney general limited his opinion to only student groups that were part of a formal component of student government and had decision making authority (Vielmetti 2009).

Effect on Administrators

James Hearn and Micheal McClendon wrote an article, "Sunshine Laws in Higher Education" which can be found at Academe Online describing the evolution of sunshine laws and the access that they provide the media with regard to Higher Education. Popular belief, according to the authors is that university administration does not like the environment of transparency that the sunshine statutes have created. However, the article explains that the opposite is true. In fact, most university professionals are happy that their work is public information because, in reality, they are not doing anything that in secretive or unethical. The authors of this article conducted extensive research interviewing 92 higher education professionals of various positions in addition to collecting hundreds of documents and case files from the states of California, Florida, Iowa, Massachusetts, Texas, and Washington. The authors found through their research that university professionals, by in large, consider the concept of openness and transparency to be consistent with the core of higher education; as such, they believe that open meetings laws are good for university life. Administrators do have some reservations about open meetings laws primarily as it relates to human resource issues. With regards to executive searches, the authors found in thier research that most university personnel believe that open records requests have diminished the level of qualified applicants particularly in presidential searches. The common belief is that sitting presidents at peer universities are hesitant to publicly pursue another position because of the risk it creates with upsetting the university they currently serve. Additionally, there are many personnel issues that cannot be made public because of privacy laws; as such, university administrators have to balance the proverbial line of acting transparently while protecting the rights of their employees (Hearn, McClendon 2005).

Cases


Athletic association records. Macon Telegraph Publishing Company v. Board of Regents of the University System of Georgia, 256 Ga. 443 (1986)
The Macon Telegraph Publishing Company had requested, through the Open Records Act, the financial statements of the University of Georgia Athletic Association - a separate, private corporation that serves as an auxiliary to the University of Georgia to manage the finances of the Athletics Department. The court reversed the initial ruling to deny the request because it was determined that "
regardless of whether the documents are prepared by employees of a private Athletic Association or by Dr. Barber as Treasurer of that Association, it is clear that they are 'documents, papers and records prepared and maintained in the course of the operation of a public office,' and are therefore "public records" under the Open Records Act."

This precedent impacted Intercollegiate Athletics nationally because many university athletic department have separate "Athletic Corporations" to manage their finances. Athletics is one of the most visible functions of a university; as a result, the management of an athletics department is often highly scrutinized. The precedent set in this case has set the stage where it is common for details of coaches contracts, media partnerships, and other high profile financial documents can be found in the mainstream media. Many athletic departments are releasing this information before it is even requested in an effort to control the style and manner with which it is presented.

East Stroudsburg University Foundation v. Office of Open Records, 995 A.2d 496

In an effort to maintain donor confidentiality, East Stroudsburg University's Foundation is seeking judicial review of the Pennsylvania Office of Open Records decision to disclose donor records to a local newspaper. The decision to reveal donor records was made on the grounds that the foundation performed governmental functions for the university; as a result, it was determined that records such as active pledges, payments, balances and the like be made public. The state decided that any records directly related to the management of funds by the Foundation on behalf of the university were susceptible to open records requests.

This result is a significant blow to philanthropy in higher education because the confidentiality of donor records has always been viewed as sacred. Public institutions of higher learning may have a harder time fund raising in the future if donor confidentiality cannot be assured. Donor records have historically been confidential and there is currently no threat for non-proft organizations outside of higher education as well as those affiliated with private institutions. As state budget allocations for higher education continue to shrink and university's are expected to generate an increasingly larger percentage of their operating budget, the need for private support in public higher education has never been greater. This legislation could have a profound impact on a public university's ability to raise money from wealthy individuals who do not want that information made public.

Post Gazette v. Edinboro University
In this case, Edinboro University announced the largest gift in the history of the institution but did not reveal the amount of the gift in the announcement. A reporter for the Post Gazette submitted an open records request for the gift agreement or even just the amount. Even thought the press release described the gift as "from the university" and it was signed by two university personnel, the president and the vice president for advancement, the university claimed that the gift was made to the Foundation and would remain confidential. Just before this case went to trial Edinboro University settled with the Post Gazette for a $1,500 civil fee and legal fees, but still did not disclose the amount of the gift. In many instances, donors do not want certain things shared about their giving. It seems safe to say that in this case the donor did not want the amount of the gift made public and the university was successful in keeping it "under wraps."

Edinboro University made a strategic decision in this case that the positive impact of the gift far outweighed the negative impact and relatively small financial loss of settling the lawsuit. In the end, they achieved their goal of maintaining confidentiality in the components of the gift that the donor did not want made public. Technically, the university officials broke the law by not fulfilling the open records request.

Medlock v. Board of Trustees
In this case, an animal rights group sought for open meetings at the University of Massachussetts for the IACUC (Institutional Animal Care and Use Committee). The Appeals Court of Massachussetts found that when a university committee meets, but the agenda does not include public policy matters and no decisions affecting the public are made, they are not bound by the state of Massachussetts Open Meeting Law. However, the appeals court affirmed that any meeting of the Board of Trustees would remain susceptible to open meetings law.

Summary

Open meetings laws have evolved into a rather significant issue on a modern university campus and community. From a faculty standpoint, open meetings laws have very real implications relative to work related correspondence as well an impact on educational programming. Academic freedom must be protected as the evolution of open meetings and records continues to grow because it is so inherently important to the culture of higher education and quality of education available. Student, while insulated, are certainly not immune to open meetings laws. Student government groups are required to to make their meetings available to the public in most states and, quite often, students are indirectly affected when open meetings have an impact on their field of study. Higher Education administrators have the most direct contact with open meetings laws and in many ways it creates a challenge. From a personnel standpoint, it is sometimes difficult to protect the privacy rights of university employees. Additionally, the nature of executive searches in higher education has changed as the process has become much more public. While this may be great from the standpoint of transparency, it is commonly believed to be a deterrent in recruiting top notch administrators who currently hold high level positions at peer institutions. These challenges should not be overlooked; however, the overall impact of open meetings laws on higher education is very positive because it is consistent with the culture and purpose of public higher education. Sharing ideas and disseminating information throughout the campus and community should be common practice anyway - open meetings laws have made it mandatory.
Hearn, J. McClendon, M. (2005). http://www.aaup.org/AAUP/pubsres/academe/2005/MJ/Feat/hear.htm
Schwing, Ann Taylor. (2004). http://www.openmeetinglaws.com/
Schmidt, Peter. (2010). http://chronicle.com/article/article-content/125094/
The Ticker. (2011) http://chronicle.com/blogs/ticker/wisconsin-faculty-urges-administrators-to-fight-misuse-of-open-records-law/31848
Vielmetti, Bruce. (2009). http://www.jsonline.com/news/wisconsin/79572237.html