July: Don’t exempt UW-Madison from records law

2013 Columns

Allen Ruff

The University of Wisconsin-Madison has requested that the state Legislature grant it an exemption from Wisconsin’s Open Records Law.

The proposed legislation, if passed, would limit public access to university records and diminish independent scrutiny of the state’s flagship university.

In pursuit of this exemption, UW-Madison officials have circulated proposed language, initially to a list of Republican-only legislators. The two-page memo contained a range of arguments for granting increased protection of “intellectual property,” primarily the growing proportion of on-campus research and development.

The proposed legislation, which the UW initially tried to get put into the state budget bill, is overly broad. If passed, it would inevitably lead to abuse.

It would allow the withholding of information “produced or collected by or for faculty or staff of public institutions of higher learning in the conduct of or as a result of study or research on commercial, scientific or technical subjects,” until it has been publicly released, published or patented.

This exemption would pertain whether the research was “sponsored by the institution alone or in conjunction with a governmental body or private concern.”

The UW-Madison sponsors argue that this change is needed to deter the theft of valuable research before it can be patented. Their memo to lawmakers warned darkly of “the possibility that public records laws can be used as a tool for competing researchers to gain premature access to the ideas of others places the University at a competitive disadvantage with respect to recruiting and retaining high caliber researchers.”

In other words, a research funder might lose anticipated returns on its investment because a competitor gained access to key information through an open records request. If so, that funder might take its money elsewhere — to a private institution unconcerned with public access. Researchers would follow suit, to the detriment of the UW and state.

Wishing to curtail the number of records requests — especially by those raising ethical concerns about specific “public-private partnerships” — the proposal’s sponsors also argue that current procedures are too cumbersome and expensive.

But that argument can be made for any use of the records law. So can the argument that the public is entitled to know what its publicly funded institutions are doing.

Not long ago, I teamed with journalist Steve Horn to examine the ethically questionable relationship between UW-Madison and the dictatorial regime in Kazakhstan. We obtained records that could easily have been denied us if the current proposed changes existed.

Some of what we received, including contracts with the Kazakh regime, were vetted by the university’s legal office. Some of the material was redacted to protect privacy and security concerns.

Clearly, the existing procedures and safeguards are adequate. The UW office in charge of fulfilling requests never has, and is not about to, give away any scientific or trade secrets.

Further restrictions on access to records at the UW-Madison will not serve the public interest.

If the details of various “public-private partnership” deals can be withheld by some “authority” based on a subjective and over-reaching interpretation of the law, then what becomes of legitimate inquiry regarding the ethics and propriety of such ventures?

It’s a policy that runs roughshod over the university’s proclaimed commitment to openness, transparency and citizen access.

Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council (www.wisfoic.org), a nonprofit group dedicated to open government. Allen Ruff is a Madison-based U.S. historian and researcher.