Along with 1,400 other law professors, I signed a letter opposing the nomination of Jeff Sessions for Attorney General of the United States. As a law professor, I signed this letter because of my concerns about maintaining the integrity of the legal system.
Shortly after the law professors’ letter was published, my university counsel’s office got an Open Records Act request seeking my emails.
The request, from a reporter working for a conservative political publication, sought: “a copy of each email (inbound, outbound, deleted, or double deleted) for the university email accounts of Andrea A. Curcio and [a colleague who also signed the letter] from the dates of December 15, 2016, to and including January 3, 2017, which includes any of the keywords “Sessions,” or “Jeff Sessions” or “Attorney General.””
A similar request was sent to university counsel for law professor signatories working at other public institutions.
Open records requests are a key to governmental transparency. Being personally subjected to one is unnerving.
How do you avoid such a request if you work at a public law school? You stay silent. Non-involvement with anything in the least bit controversial helps protect you from the possibility that anyone will ever ask to see the content of your emails.
I have often asked myself the theoretical question: if I had lived in Nazi Germany, or in the McCarthy era, would I have remained silent or would I have taken the risk and spoken up. That question is no longer theoretical.
Celebrating Martin Luther King, Jr. Day reminds us of the courage of those who stood up for what they believed was right. Today we again have a very visible choice about whether to step off the curb or to let fear silence us.
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Best Practices for Legal Education 
Dear Andi,
Thank you for NOT staying silent. And, for encouraging the rest of us to step off the curb as you did in an earlier blog post regarding the Professor Watchlist.
https://bestpracticeslegaled.albanylawblogs.org/2016/12/13/adding-your-name-to-the-professor-watchlist/
Democracy is rooted in the ability to comment on and criticize governmental actions, such as the nomination of Jeff Sessions to lead the Department of Justice. I support you and all others who teach at public universities and hope the law schools and universities provide you the support needed to ensure academic freedom. I am honored that your response was not to hide under your office table but to speak again here on this blog.
Mary
Democracy is rooted in the ability to comment on and criticize governmental actions, such as the attempts of government funded law professors to affect the makeup of the Federal Executive.
How does a Chair not see the glaringly obvious?
I also signed the letter. The day after it was publicly released, my dean received a letter from an alumnus (sadly, also a former TA of mine) who said he could no longer consider making any donations to the school because I had signed the letter. A pretty direct attempt to intimidate me into silence.
It is sad when even the students we have tried to teach to think critically and question everything try to silence viewpoints that do not agree with their own.
Ah yes, if I don’t give you money, I am attempting to intimidate you into silence.
I always thought Wyoming men were made of sterner stuff.
Actually, yes. Pretty subtle and still a form of intimidation. Also known as a Boycott.
Kenneth didn’t change his mind so, yeah made of sterner stuff.
Thank you Kenneth for also sharing your story. It seems to me that the qualifications or lack thereof of the nominee for the Department of Justice is a very relevant issue for Law Professors!
And as such, the actions of government funded Law professors should be scrutinized. For the health of a transparent democracy.
Was the request limited to Curcio’s university e-mail account? Georgia State is a public university. Does Georgia put limits on the use of state-funded email use? Unfortunately we (or you, since I am now retired) receive such requests on our .edu accounts and don’t think about the rules when we respond to them. Indeed, I am using my personal account for the blog.
seriously doubt that any of these profs will lose their jobs like Bernard Eich did for practicing his First Amendment right of free speech
One important issue is the breadth of the FOIA request and how the university advises complying- does the request ask for inbox, listservs?. What if you are on a professor or community listserv in an appropriate area for your expertise? And what if the seekers of FOIA really want to find out about your organizing tactics around a justice/legal issue? Is it required to give all those e-mails over? Do we believe that it would be wrong for a professor to engage in brainstorming discourse professionally about that issue without those thoughts of others not at a public university being subject to disclosure?
Just think if you were a performer or entertainer, then you could REALLY be intimidated with the loss of livelihood. Or maybe a baker.
Or if you were a conservative student on a campus taking one of your classes, then you would REALLY feel what it is like to be intimidated.
Fire with fire. Subject the conservative’s darlings at public U’s to the same requests until they back off. Whose email do you think is more embarrassing, dummies?
Do it! Don’t really care. But I do bet Glenn Reynolds, for example, is smart enough not to use his .edu account to do anything nefarious.
Because he understands FOIA.
The arrogance of this post is quite striking. Andrea criticizes a public figure for his positions, but feels she should be exempt from the same examination of her own virtue. In fact, she seems to feel that her righteousness is so self-evident that the Open Records Act itself does not apply to her.
It was exactly this kind of arrogance that elected Trump. The persecution that Andrea will soon experience may give her some belated empathy for how the conservative students in her classes must have felt.
She didn’t say she should be exempt or that this is actually an unlawful use of FOIA.
FOIA = Nazi. In other words, your assertion is that tranparency in government, with policies in place that discloses the activities of government employees in their capacity as government employees, is the same a socialist government that built a bureaucratic machine designed to commit genocide against non-Aryan races, then hide all documents from the public related to this.
Why do you think that a government employee should be able to work in secret for the purposes of preventing his embarassing activities to come to light and not for the protection of state secrets?
Heh. You guys make me laugh. Thanks!
“Do we believe that it would be wrong for a professor to engage in brainstorming discourse professionally about that issue without those thoughts of others not at a public university being subject to disclosure?”
Every single government digital device I have EVER used contained a warning that ALL activites on said device were subject to monitoring and the laws pertaining to that device. Why are you for subverting the law?
Such histrionics, Andi.
As a Georgia Tax Payer, I have every right under state law, to request such information. And if you were doing anything you wish to keep in the dark, don’t use your .edu email.
Really, how does a mental basketcase lacking all foresight, or apparently even a basic familiarity with the laws of the State of Georgia rise to the level of law professor at Georgia State University? All those GSU jokes must have some grain of truth.
“How do you avoid such a request if you work at a public law school?” Quite easily don’t use your employers accounts for your personal political activity. I am not a law professor and can figure this out quite easily.
The point is when when an overbroad request to your professional mail asks for the turning over of matters which violate academicallly appropriate exchange of information. It is relevant to our professional obligations to write and speak on changes on law and changes in law leaders and administration nominees. Some of that is FOILABLE and should be turned over. My concern is that “nervous nelly” university counsel ask professors to turn over what is NOT required. In other words, we all bow down to the bullies. That is not my America.
Anything occuring on a government owned computer is owned by the government and is subject to FOIA. What are you and your fellow government employees doing on government networks and computers that you are terrified of the public knowing?
I seems that you want to use the power of Government to shape governmental policy. From a public perspective, the hopeful response to all the FOIA requests would be that no documents responsive to the request are found. Because the activity that resulted in the letter occurred as a matter of private activity, not paid for by the government activity. Or responsive activity was surrounding the purpose of curriculum development, although that would seem to be ill-timed, since Sessions has not yet be confirmed, let alone promulgated any policy as Attorney General that should need scholarly attention.
But personal political activity should be on your own dime, not the public’s. By which I am referencing the actual communication accounts used.
The FOIA was limited in scope, wasn’t it? “Sessions,” “Jeff Sessions,” and “Attorney General” seem pretty narrow to me, although the AG class could encompass matters not related to the nomination. Other replies point out that the computer and email server belongs to the gov’t, not to us. If we want to write things that would not be disclosed we should use our private emails. The problem is that AALS and CLEA rely on our .edu addresses. CLEA should have a policy of using private addresses.
You do realise that you have made an idiot of yourself – twice now – in front of the entire world? This is not a private whine with your sympathetic colleagues who would think less of you but keep silent. This is the internet.
First you sign a blatantly political letter exposing your deep ignorance and brutal arrogance (I need not write my own critique, as it is ripped apart far better than I could do here http://taxprof.typepad.com/taxprof_blog/2017/01/3-law-profs-criticize-smug-self-delusion-of-1400-law-prof-signatories-to-scandalous-letter-by-partis.html ).
Now you entirely reverse the concept of fascism (as do your more ignorant commentators) to beclown yourself once again: you seem to think it was oppression of government by the people.
You are a government employee. Most, if not all, of the signatories are either wholly or partly paid by government. The people making the open records request are private citizens, or at least doing so in their capacities as private citizens or employees of non-government organisations.
You’ve been asked for your emails for x’s sake. Emails sent on your employer’s system. You’ve not been asked for anything unrelated to your work, let alone been physically threatened.
Grow up. If one of the fellows or professors teaching me at university had acted in this childish way I would want my money back.
Using words like idiot is not professional nor helpful. Your ad feminem attacks on Professor Curcio does not help us understand the issue better. Unlike other blogs, this is not a place to vent your spleen. Please refrain from cyberbullying. Yes, this is the internet, but courtesy is not a lost art on my blog.
What is the problem here? The original post did not say this FOIA request is unlawful (which is a much more nuanced inquiry). It simply said: being “personally subjected to [such a request] is unnerving.
How do you avoid such a request if you work at a public law school? You stay silent. Non-involvement with anything in the least bit controversial helps protect you from the possibility that anyone will ever ask to see the content of your emails.” This is factual. It’s all true.
I’d be keen to know what publication made the request. As a conservative myself, I’d like to know what publications to avoid.
I was wondering that myself. I hate Trump as the next sapient human being, but the lack of such basic information made this post smell like yet another fake news story.
What a surprise to return to this blog while catching up on a weekend morning, only to find a number of rude and poorly informed comments, which I assume were not written by people with any knowledge about or experience of legal education. Thank you Mary (and others) for your attempts to respond in a civil and fact based way. I believe, if our democracy is to survive and thrive we need to do all we can to protect and promote civil discussion, and not be silenced by insults or complaints that our expertise and the conclusions our experience lead us to reach is not something we should share as part of our teaching and service.
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