The Scene: The President of State University resigns from her position leaving the university community in the lurch. Immediately, the board of trustees forms a search committee, which overnight is flooded with names of both self-submitted and nominated applicants. The search committee, in private, begins to narrow the list. Their actions, however, do not go unnoticed and the student newspaper begins to pressure the university for a list of candidate names. All requests are adamantly and repeatedly denied. The interview process begins and the newspaper makes a formal request for the names of the remaining candidates under the state's open records law. They are again denied.
When the newspaper files a lawsuit against the university, the court orders the search committee to stop conducting its business in violation of the state's freedom of information laws. The final candidates are interviewed on campus, in public, and a new president is selected.
But one year later the legislature passes a law exempting university presidential searches from the open-records law. From this point on, all presidential searches in the state can be conducted with much greater secrecy.
This scenario, an amalgam of situations that have arisen around the country, represents a trend. In court battles across the country seeking to open the records and meetings of searches for school administrators, those seeking access usually prevailed. But these victories have sometimes been short-lived as school officials have later persuaded state lawmakers to create new exemptions to state freedom of information laws that allow schools to hide information concerning searches for top-level school officials. As a result, all public input and debate is effectively cut off until the deal is done.
Reporters for The Detroit News and the Lansing State Journal are among those intimately familiar with this course of events. In 1992 the president of Michigan State University resigned. Except for the last four candidates, three of which were interviewed publicly, the presidential search committee conducted their search in private. In 1993, only months before the new president was selected, the two newspapers sued the university demanding an end to the closed search process. Their case went to the state court of appeals where the court held that the Board of Trustees violated the Michigan Open Meetings Act.1 However, shortly after the court issued its ruling the legislature passed a law exempting university presidential searches from the state's open-records and open-meetings law.2 In 1999, the Supreme Court of Michigan formally reversed the Court of Appeals decision.3 By this time the amendment had already affected another Michigan university's presidential search. In 1997 the Court of Appeals, in Great Lakes Media, Inc. v. Oakland University Board of Trustees, ruled that the Oakland University board of trustees presidential search committee did not have to comply with the open-meetings act, and quickly dismissed the case.4
In the last 10 years a number of states have amended their freedom of information laws exempting, either explicitly or implicitly, university presidential searches. At least four states now have explicit exemptions and about 20 others include more general exemptions that may provide a backdoor for universities attempting to circumvent the freedom of information laws.
Still, the news media continues testing the limits of their right of access in demanding open meetings and records of public school searches for new executives: college-system chancellors, college presidents and administrators and school system superintendents. This drive is fueled in part by a recognition that such school officials wield significant power and influence over public education and publicly supported facilities. A state university president, for example, manages millions of taxpayer dollars and resources, routinely makes decisions that affect thousands of citizens, is an influential leader in the state and is often is paid more than the governor. In fulfilling their watchdog role, the press believes the public has a stake in what goes on behind a search committee's doors.
All 50 states and the District of Columbia have open-records laws. Generally, open-records and open-meetings statutes require that all documents and meetings of a public body, subject to some exceptions, are accessible to anyone who so requests. Exemptions in the laws are typically created where lawmakers believe that either the public interest is better served by secrecy or where the privacy interests of individuals should be respected.
Courts have been reluctant to find exceptions in state open records and meetings acts for presidential searches when one is not clearly articulated in the statutes. While this is good news for the media, some university presidential search decisions have ultimately resulted in a disappointing legislative reaction.
In the first reported decision on this issue, Hubert v. Harte-Hanks Texas Newspapers, Inc., a Texas university was required to disclose the names of candidates for president of the school, a list of several hundred applicants.5 The parties fought over whether the disclosure of the names would be "a clearly unwarranted invasion of personal privacy." The Hubert court was unpersuaded by the argument that disclosure of the candidates' names would be embarrassing or "if publicized, would be highly objectionable to a reasonable person."6 The court went on to say, "While this factor might persuade the legislature to create an Open Records Act exception for such applicants, it is not evidence of a 'clearly unwarranted invasion of personal privacy...'"7
The legislature took the cue. In 1993, in response to the Hubert decision, an amendment was added to Texas' Open Records Act exempting applicants "for the position of chief executive officer of an institution of higher education."8
In the late 1990s, the New Mexico legislature amended its Public Re-cords Act after a district court prevented the Board of Regents of the University of New Mexico from completing its search without first disclosing the name of 14 interviewed candidates.9 Because a number of the candidates had been promised confidentiality unless they became finalists invited to campus for an interview, the board elected to abandon its search.10 In response, state lawmakers amended the open-records act to exempt the names of candidates for chief executive of public institutions of higher education, provided the names of at least five finalists are made public no less than 21 days before the final selection is made by the governing body.11
In Colorado, the state legislature passed an amendment to its Open Records Act in response to a state district court order to the University of Colorado that required disclosure of names for the presidential candidates to the Rocky Mountain News.12 The amendment exempts from disclosure the names of candidates who were not finalists, unless there were six or fewer applicants, in which case all would be considered finalists.13
The Colorado Legislature is not the only one to make the distinction between applicants and finalists. In a nonuniversity context, the Chippewa Falls Herald challenged a closed search for school superintendent in that Wisconsin town.14 Six candidates, all of whom had been promised confidentiality, remained in the search when the lawsuit was filed. While the newspaper classified the candidates as finalists, which would require disclosure of their names under a state law requiring the names of finalists for public positions be made public, the school district said the six were applicants. The school board president said that if forced to disclose the names, five out of the six candidates claimed they would withdraw from the process.
Instead of waiting for the court to order disclosure, the school board abandoned its search and restructured it, this time planning to include in the application package a caveat explaining that names will be kept confidential until the point that state laws require their disclosure.
To date, only about a dozen courts in the country have specifically ruled on the issue of access to executive personnel searches.15 Nevertheless, it is possible to gauge how a court might rule.
Courts usually address the competing concerns at stake in deciding whether to allow access to meetings and records. In this balancing test, journalist plaintiffs and school system defendants have presented an array of arguments with mixed success. Every news organization that has gone to court has presented a different combination of legal arguments as to why searches should be open.
Court decisions have usually hinged on the wording of the state open meetings and open records laws. Since these laws are different in every state, courts have reached different conclusions as to what should be open. But there are common threads running through the existing court decisions.
A two-part analysis can help you determine how much access to the search process your state law is likely to permit in covering your school system. The first part relies on the specific language of the law in your state. The second part raises other arguments courts have considered.
A court's job is to interpret the law, not write it anew (although sometimes judges ignore that precept), so the first place a court turns to determine what the legislature intended is to the text of the open-meetings or open-records law. This text is often accompanied by the legislature's official comments to the law. A court might also consider the legislative debate that took place in passing the law. In addition, a court might consider the interpretation of the law provided by another agency of government, such as the opinion of the state's attorney general or the decisions of other courts in cases involving similar issues.
The language of a law can often be construed more than one way, but it is helpful to consider the possibilities so that you can find justification in the text for your position. The current laws often fall into four categories: (1) specific exemptions for university presidential searches,16 (2) general exemptions for names, files or records of applicants for public employment,17 (3) exemptions for situations that would result in an "unwarranted invasion of privacy" and (4) no exemption at all and a law in favor of full disclosure. Answer the following questions about your access laws:
— Is there a part of the open-meetings law or the open-records law that specifically applies to the governing body of the school you are covering?
Where the law does specifically cover the school or college system you are covering, it might do so in the open-meetings or open-records law, or in a separate section of the state code that covers education. Note whether the school or college system is given any special treatment as compared to other parts of the government. For example, Florida law specifically addresses the ability of universities to exempt some personnel records, such as evaluations, from the state open-records law.18 If schools are treated as any other agency of government, then your argument for access is stronger. You can rely on cases in which access to other government agencies was allowed. If the school system is given special treatment, consider how. The legislature might have given discretion to the school system in releasing its own records, but it might have laid down some overriding restrictions.
Even where the law does not specifically refer to a school's governing body, the law may contain a general definition of a "governing body" or "public body" that would encompass the search committee. In fact, most courts that have had to decide whether a statute applies to a school board or board of regents or trustees — when the law does not explicitly mention them — have decided that the statute does apply.19
— Is there a "standard of review" for public disclosure of information?
Many states have adopted language similar to that of the federal Freedom of Information Act, which allows the government to refuse to disclose information if disclosure would result in a "clearly unwarranted invasion of personal privacy."20 If that standard is the only bar to release of the information you want, it is a high threshold for the government to meet. Sometimes, though, the state will modify the federal standard, perhaps lowering the threshold to mere "invasion of personal privacy." Delaware uses such a standard.21
— Does the open records or open meetings law limit its own application?
The Iowa open-records law orients its application toward material produced by the government, so applications submitted by executive candidates are less likely to be subject to disclosure.22 An open-records law might also limit its application to material of certain content, such as nonevaluative material. The school system might then be compelled to produce only parts of a file that are not evaluative, such as a candidate's identity and qualifications. In Tennessee, for example, the government may keep a confidential personnel file, separate from the public file, only for information concerning an employee's problems with drugs, family, health or the law.23 That exemption could be extended to files on applicants for public employment, even though the bulk of their applications might be open.24
— Is there a general statement expressing the legislature's commitment to open government?
Many open-records or open-meetings laws are preceded by such a statement, and if yours is, you may be able to use it to bolster your case. A court interpreting an open-records or open-meetings law with such a clear statement of intent will likely favor openness on an issue that is unclear under the law. The Supreme Court of Kentucky, for example, extended the state open-meetings law to a presidential search committee, finding that the legislature evinced a clear commitment to openness.25
Does the public interest in access outweigh competing public, individual and government interests in secrecy?
— Open government is in the public interest.
This is the primary argument in favor of access. The public, often through the news media, is a watchdog on government, responsible to ensure that public officials conduct themselves in accord with the public will. Public officials carry not only public trust, but also authority to spend public dollars.
The public has an interest in ensuring that its money is spent properly by the school system, from the process of interviewing executives to the efficient administration of the schools. The Arizona Supreme Court recognized the public interest in making sure the selection of a president for Arizona State University "was not rigged nor discriminatory..."26 The Arizona court also noted that the public might have information about the fitness of executive candidates that would not be brought to light in a closed selection process.27
— Applicants voluntarily seek public, executive positions.
Individuals who put themselves in the public light surrender some of their privacy. This argument is not as strong when candidates for executive positions have been nominated and might not know about the nominations. Still, there comes a time when candidates for a public position must expect to be exposed to public scrutiny.28
— Public bodies should not be allowed to circumvent access laws by delegating authority to closed-door committees.
Open meetings and open records laws are not always clear as to whether they reach subcommittees or advisory boards that are below explicitly covered parent bodies. One way that lawmakers and courts have attempted to distinguish between what entities are subject to the laws is to draw a line between fact-finding and decision-making functions.
An Alabama court, for example, distinguished a fact-finding advisory committee from the decision-making Board of Trustees in the search for a president of the University of Alabama.29 The court found that the advisory committee, which only made recommendations to the chancellor, who made a recommendation to the board, was not subject to the state freedom of information laws. But a fine line separates fact-finding and decision-making. For instance, under which classification is an "advisory" committee that narrows the list of candidates from 100 to 10? The Alabama court emphasized that the University of Alabama advisory committee did not have the power to make "reduction decisions" — decisions that reduce the size of the pool of candidates. The advisory committee merely commented on all the candidates for the chancellor's review. A committee empowered to make reduction decisions, the court said, would have decision-making authority and would not be permitted to operate out of the public eye. Also, the Alabama decision indicates that the use of an "advisory" body to allow officials to publicly "rubber stamp" a closed-session selection process can be considered an impermissible circumvention of the open meetings law.
Similarly, some schools have tried to circumvent open search processes by hiring private, outside organizations to conduct the search and claiming that those organizations are not subject to the open-meetings and open-records laws. But if a private organization is performing the function of a state institution, courts tend not to let the private organization off the hook for purposes of freedom of information. Statutes in Georgia and Colorado expressly reach public records in the hands of a private search firm.30
— Closed searches can lead to discrimination in the search process.
The argument here is that "in order to guard against favoritism or discrimination in the selection process, ... and in order to form a judgment about whether the search committee and governing board had attracted good candidates, [and] that the pool was diverse"31 the public must know the candidates identities. Critics of this line of thought argue that search committees are now often selected with diversity in race, gender and ethnicity in mind negating this rationale for an open search process.
— The public interest weighs against full disclosure.
The primary argument school and college administrations use to keep executive searches closed is that there is a public interest in maintaining the individual privacy of each applicant. In addition, universities express concerns that the most qualified candidates will remove their names from the candidacy if they are disclosed. The best candidates may be happy and successful where they are and unwilling to jeopardize their current job for the prospect of a new job. This argument usually gives way to a balance of the individual's privacy against the public interest in freedom of information. For example, the Supreme Court of Michigan held in Booth Newspapers, Inc. v Board of Regents of the University of Michigan that candidates for the presidency of the University of Michigan had a legitimate interest in the confidentiality of their applications.32 But the court said that disclosure of records that might have identified candidates was nonetheless required, because threats to candidates' privacy would have to be "more palpable than mere possibilities."33
— Open searches may negatively affect the evaluation process.
Universities allege that the members of a search committee might be hesitant to engage in frank, honest discussions about the candidates if they are on public record. This hindrance of the evaluation process of the candidates could affect the selection process. "Those involved in open searches have expressed fear of being misquoted or misinterpreted by the press, or injuring their own careers by making enemies with certain candidates [candidates who might become the new university president], and/or their supporters, or even of exposing themselves to litigation if publicly expressed negative comments are thought to be defamatory."34
Closed executive searches invite abuse of the public's trust. School superintendents and college presidents often have the power to affect hundreds or even hundreds of thousands of lives in the communities they lead by directing and implementing policies on academic and social life. As these executives often serve extended — or even indefinite — terms, hiring a new executive gives a school or college board a rare opportunity to shape institutions and community life for decades to come. This raises a responsibility on the part of the public to ensure that their public representatives on the school or college board make policy decisions in line with the community's best interests. That is only possible when executive searches are subject to public scrutiny. The media has an important role in asserting the public's right to hold its representatives accountable.
For a state-by-state analysis of the application of your state's freedom of information laws to searches for school and college administrators, see the Student Press Law Center's website at www.splc.org/execsearch.