by Chaim Mandelbaum
Counsel, The Free Market Environmental Law Center
In 1966, the federal government passed the Freedom of Information Act (FOIA), in order to give people greater insight into the operations of the government, and to allow them oversight on how the government spends their money. States soon followed suit and passed their own versions. Texas passed the Public Information Act, under which state agencies put records management systems into place and preserved public records so they could be provided upon request.
In recent years there has been resistance to the idea that programs paid for by taxpayer dollars should be open to inspection. This resistance has occurred in state universities, where professors have sought to avoid disclosing public records in their possession. Organizations made up of university professors, such as the Climate Scientist Defense Fund, have been created and have held conferences designed to discuss how best to defeat requests for information. (See “Defense Fund Helps Scientists Targeted by Lawsuits.“)
There are exemptions under all the various public disclosure laws ensuring that information not related to taxpayer funded work is released. Unfortunately these exemptions are not considered to be enough by those who oppose making information available to the public. A recent case involves a professor at Texas A&M University, Andrew Dessler. Texas A&M is a publicly funded university covered by Texas’s Public Information Act, and it has a detailed records management system in place. Professor Dessler, speaking at a workshop, explained that after dealing with a public records request, he decided to destroy all his emails so they would no longer be available for public scrutiny. He explained that “he deletes most of his emails after reading them” so they cannot be requested. (See “Climate scientists, facing skeptics’ demands for personal emails, learn how to cope.”)
When the staff of the Free Market Environmental Law Clinic, and their client, The Energy and Environment Legal Institute, saw this statement we became concerned. Texas A&M University has in place a records management system designed to ensure that emails which are public records are preserved. Under the records management system many emails can be deleted because they are considered “transitory emails.” However, emails which document university business have to be preserved for two years under the records retention schedule. Thus Professor Dessler isn’t allowed to simply delete emails if they “pertain to the formulation, planning, implementation, interpretation, modification, or redefinition of the programs, services, or projects” which the university undertakes and which its employees’, like Professor Dessler, carry out.
Nevertheless, Professor Dessler’s statements were not taken at face value. Instead two public records requests were submitted to Texas A&M University. One asked for all the emails sent to or from Professor Dessler which were properly archived as public records. The second asked for any requests made by Professor Dessler to the University’s Records Retention Office for permission to delete records. Records, even those that document the activities of the university, can be deleted if they are unnecessary, as long as the Records Retention Office gives approval. However it was discovered that there were no preserved records. Texas A&M responded that “The College of Geosciences conducted a search and found no information that is responsive to your request.” Further, the university informed us that no requests were made for permission to delete public records.
The lack of any preserved emails is alarming. While many emails can be deleted, it is expected that at least some would deal with the projects and activities the Professor engages on behalf of the university and, ultimately, the taxpayers of Texas. For there to be none indicates that public records which should have been preserved were intentionally being destroyed. Such destruction not only goes against the notion of public disclosure on which the Texas Information Act was based, it is also a criminal act. Texas Government Code § 552.351 makes it a crime if a person “willfully destroys, mutilates, removes without permission as provided by this chapter, or alters public information.”
The staff of the Free Market Environment Legal Clinic on behalf of The Energy and Environment Legal Institute plans to bring these violations of the Texas Information Act to the attention of those able to prevent any future destruction of Texas’s public records.