Written Testimony in Support of Proposed Bill SB 394 Hearing on March 13, 2024
The testimony below was submitted on March 13, 2024 by CSLDF Executive Director Lauren Kurtz, speaking before the Connecticut General Assembly in support of Connecticut Senate Bill 394, to protect certain higher education records under the state Freedom of Information Act.
Open records laws have a vital role in government transparency but, in the specific realm of higher education, they can easily be exploited by bad actors to harass and intimidate scientists and academics whose research they dislike. State open records laws were initially written long before the advent of email and sometimes even the founding of state universities. Unfortunately, the increasing and aggressive use of open records laws against public university professors is a pervasive issue that affects virtually all disciplines, from climate scientists to cattle researchers, in red and blue states alike.
Since 2011, the Climate Science Legal Defense Fund has assisted dozens of climate and environmental researchers who have been targeted via open records laws. We’ve also graded the research provisions of the open records laws of all 50 states and DC.1 Connecticut’s FOIA law has consistently gotten a “C,” due to being vulnerable to misuse.
I’m personally a proud graduate of the Connecticut public school system, K through 12 – Connecticut can do much better than a “C.” In fact, many other Northeastern states – such as New Jersey, Pennsylvania, and Rhode Island – all have As or Bs, as do a number of other states around the country, from West Virginia to Utah.
The language of SB 394 is very similar to the laws that other states – including New Jersey, Georgia, Virginia, and South Carolina – have successfully had for many years. States including Rhode Island and North Dakota have also recently implemented their own reforms.
Unfortunately, without safeguards in place, open records laws can be manipulated in an attempt to trawl for “gotcha” emails containing potentially embarrassing private messages or academic jargon that can be taken out of context. Responding to open records inquiries (which can cover decades of correspondence) consumes tens to hundreds, sometimes thousands, of hours of legal review by professors who could otherwise spend that time on research, while their universities simultaneously drown in legal fees that subtract from the public education budget. It’s hard to blame the numerous scientists who – following experiences like this – leave public universities for other institutions, or exit research altogether.
There is no real downside to protecting researchers from open records abuse. Unlike the other sorts of government information generally revealed by public records laws, published academic work is already publicly available by the very dint of being published. Valid academic debate – whether over climate change, biomedicine, or any other field – should involve reviewing and replicating (or not) peer-reviewed, published work, and does not require the use of open records laws.
This bill recognizes that certain information such as funding information, which can uncover important conflicts of interest, should be disclosed under the open records laws. The proposed revision discussed today would spare Connecticut public university professors from the worst sorts of open records attacks, while still preserving important financial and administrative accountability.
Notably, this proposed revision also reflects what some Connecticut courts have already found: that the public interest in protecting certain academic research records outweighs any benefit from releasing them.2 While some have argued the existing legal protections are sufficient, actually implementing them under the current regime is wildly time-consuming and inefficient. Codifying these protections helps safeguard critical scientific research, protect academic freedom, and – last but not least – save real taxpayer money.
I urge the legislature to vote “yes” on this important bill.
1. “Research Protections in State Open Records Laws: An Analysis and Ranking,” https://www.csldf.org/resource/research-protections-in-state-open-records-laws-an-analysis-and-ranking/
2. See, e.g.,Coalition to Save Horsebarn Hill v. Freedom of Information Commission, 806 A.2d 1130 (Conn. App. Ct.2002); Wilson v. Freedom of Information Commission, 435 A.2d 353 (Conn. 1980)