Saturday, November 12, 2011

Wacko ATI ruling -- Ontario IPC uses academic freedom to restrict transparency


Academic freedom is a protection for what a professor does, not a protection to keep secret what a professor does.


By Denis G. Rancourt

In what can only be characterized as wacko, an Information and Privacy Commissioner (IPC), Ontario, Canada, Adjudicator has ruled (November 7, 2011, Final Order PO-3009-F, PDF-file) that it is legitimate to use academic freedom as a pretext to restrict transparency and accountability of public universities.

Whereas academic freedom exists to legally provide professional independence to professors and to allow professors to freely express their ideas without fear of reprisals -- in order to best serve society, the Adjudicator, in the context of access to information (ATI) requests, interpreted academic freedom as a device to shield professors from public transparency and accountability.

The Adjudicator ruled that, in Ontario, a professor's research and teaching cannot be subject to public transparency and accountability and that even administrative records that the individual professor feels are excluded "taking academic freedom into account" are also not available.

In an era of frequently reported incidents of academic and research fraud, and in a time when education is a highly valued commodity, this total blind spot, carved out using a misguided concept of academic freedom, makes the fact that universities in Ontario are subject to ATI law somewhat of a joke. This is especially true given that professors wholly contribute to the institution's administration via collegial governance.

Not only was a professor's publicly-funded work ruled not subject to transparency but in those cases where the Adjudicator found that certain components of a professor's work may be subject to ATI law, the Adjudicator ruled that the individual professor can decide whether or not ATI law would apply -- thereby making meaningful appeals of access decisions virtually impossible.

How did the IPC Adjudicator come to interpret academic freedom in this way?

Well, this is something about which I have some insider knowledge, as I was the ATI requester and the university in question was my former employer, the University of Ottawa. The request was made in 2006 and it has taken five years to get this brilliant and studied result.

The university refused me access to professors' communications about me. (It allowed me some access to the administration's communications about me but wanted over $28 thousand to service this part of the request. The IPC did not see this as a particularly outrageous fee... but I digress.)

The Adjudicator sought and obtained submissions from the university, from the professors' union (APUO) and from me. Both the university and the union argued (at length and supported by three U of O labour arbitration awards on the matter) that academic freedom meant that access under ATI law needed to be restricted for professors.

I argued the opposite, as follows.

On March 26, 2007:

Professors, as employees of the university, must comply with the Act, regarding all documents that pertain to their numerous functions as professors. For example, professors act on many administrative committees and executive councils and therefore have all kinds of formal and informal work-related exchanges involving the functioning of the institution and the working conditions of their colleagues. Academic freedom protects a professor’s rights to free speech and to professional discretion in fulfilling her responsibilities but it is not meant as a barrier to transparency or as a professor’s right to secrecy in exercising her duties.

And on November 21, 2007:

Professors have nationally-recognized academic freedom and tenure so that they are protected in their roles as independent societal critics and as independent teachers and researchers, not so that they can escape public scrutiny in performing their official duties related to policy, governance and opinion and decision making. Indeed, the very purpose of academic freedom and tenure is that professors not be subjected to undue pressures and reprisals for voicing their opinions. To use academic freedom as a barrier to access is to turn this instrument on its head and apply it against the public good.

... The APUO representations appear to be intended to give undue immunity to professors as a professional group, rather than respecting the true societal purpose and intent of academic freedom...

My arguments were not mentioned or retained by the IPC Adjudicator in the Order. Instead, the Adjudicator chose to delimit a compromise between the similar positions of the university and the union.

The madness of it all is like this. Since the university employer does not have a right to micro-manage a professor's work, and does not have an a priori right to inspect a professor's work or documents or communications, and since the ATI Act foresees that records respondent to a request will be administered in view of possible disclosure by the "head" of the institution, therefore, it was argued, a professor's records are not subject to the Act.

Well, even under the strict logic of the Act, that makes no sense at all because, whenever there is a complaint or evidence of fraud, the employer (the "head") is entirely entitled to obtain and examine all a professor's records arguably relevant to the investigation. The university has control over all records generated in a professor's work for the purpose of employee accountability. And an ATI request is all about accountability.

How did the Adjudicator get it so wrong?

She refused to hear the requester and instead had ears only for two powerful parties both having illegitimate interests to block transparency: The university does not want the public and media to be empowered to investigate academic and research fraud cases and the union does not want its members scrutinized by either the employer or the public. The national association of professors' unions (CAUT) is similarly misguided (here, here).

Academic freedom is a protection for what a professor does, not a protection to keep secret what a professor does.

The problem now is that this bad ruling can only be changed by an expensive judicial review. The IPC knows that institutions and unions can afford judicial reviews but that individual requesters cannot. So the IPC can afford bad rulings that lean towards the institutions.

Thus, Ontario becomes a rare jurisdiction where professors' records are not under the purview of ATI law. Bravo Madame Commissioner. Bravo U of O and bravo APUO.

This was not rocket science. The word that comes to mind for me is "pathetic."


ADDENDUM (November 13, 2011):

Actually (and perversely), a professor's research and teaching are already subject to qualified exclusions in the Act [sections 65.8.1(a) and (b) and qualifications 65.9 and 65.10] but the intended practice is that the "head" (professional ATI officer) decides the exclusions that apply on the particular respondent records which must be found and produced to the "head".

The instant ruling (paragraphs-181-182-183) would have individual professors decide all the exclusions of the Act based on their individual (mis)understandings of academic freedom - without any mechanism to verify a professor's decisions since the excluded records are then by definition excluded from consideration under the Act and are not provided to the head for eventual appeals (which would defeat the intent of letting the professors decide exclusion).

This is contrary to past practice where all respondent records are examined in an IPC appeal, including records argued to be excluded from the Act. It distances or shields the "head" from the burden of proof prescribed by the Act:

53. Where a head refuses access to a record or a part of a record, the burden of proof that the record or the part falls within one of the specified exemptions in this Act lies upon the head.

(Already the section of the Act most disregarded by the IPC, in my view.)

The new method of preventing the head from seeing a professor's records is premised on bad faith use by the head (as the professor's employer) of these records - despite such improper use being disallowed in law.

So one law (the FIPPA = ATI law) is vitiated to prevent an abuse that is against the law. Whereas academic freedom is suppose to be an iron-clad protection against exactly the expected abuse.

In the same breath, therefore, the alleged-sacrosanct academic freedom is acknowledged to be ineffective (except in restricting transparency).

I say: Either apply academic freedom as though it were real or abolish it. It is meant to protect independence not create secrecy. Secrecy is needed where there is no independence. A free society is an open society. Let's get our concepts straight.



Denis G. Rancourt is a former tenured and full professor of physics at the University of Ottawa in Canada. He practiced several areas of science (including physics and environmental science) which were funded by a national agency and ran an internationally recognized laboratory. He has published over 100 articles in leading scientific journals and several social commentary essays. He developed popular activism courses and was an outspoken critic of the university administration and a defender of student and Palestinian rights. He was fired for his dissidence in 2009. His dismissal case is in court hearings that will extend into 2012.

2 comments:

Anonymous said...

Your statement:

"[...] whenever there is a complaint or evidence of fraud, the employer (the "head") is entirely entitled to obtain and examine all a professor's records arguably relevant to the investigation. The university has control over all records generated in a professor's work for the purpose of employee accountability."

is very, very much true. I am familiar with one particular case where the University used the usual road blocks to prevent disclosure of records pursuant to ATI requests but HAD to disclose the records sought pursuant to an Application to the Human Rights Tribunal of Ontario. In the latter case, very relevant documents that support the Application were disclosed.

For the most part, ATI as administered by the present Commissioner is a smoke screen to just give the illusion that transparency and accountability exist.

Sometimes it is possible to get incriminating documents from Institutions, but this recent ruling does something to prevent the execution of the entire purpose of transparency and accountability: meaningful change within Institutions.

People often make the mistake to think that transparency automatically means accountability, when in fact it does not. In our society, "accountability" comes in the form of Human Rights Applications or Civil litigation. In both cases, complete disclosure of records is possible - records that the recent ATI ruling says are not in the jurisdiction of Institutions.

So, the Commissioner has essentially proved useless as a force for meaningful change since (1) she has no authority to enforce accountability, and (2) has no jurisdiction to make Institutions transparent. She is just a tool to be used by Institutions.

The recent ruling only serves to strengthen Institutional culture and safeguard privilege.

This is Canada.

Denis Rancourt said...

Actually (and perversely), a professor's research and teaching are already subject to qualified exclusions in the Act [sections 65.8.1(a) and (b) and qualifications 65.9 and 65.10] but the intended practice is that the "head" (professional ATI officer) decides the exclusions that apply on the particular respondent records which must be found and produced to the "head".

The instant ruling would have individual professors decide all the exclusions of the Act based on their individual (mis)understandings of academic freedom - without any mechanism to verify a professor's decisions since the excluded records are then by definition excluded from consideration under the Act and are not provided to the head for eventual appeals (which would defeat the intent of letting the professors decide exclusion).

This is contrary to past practice where all respondent records are examined in an IPC appeal, including records argued to be excluded from the Act.

The new method of preventing the head from seeing a professor's records is premised on bad faith use by the head of these records - despite such improper use being disallowed in law.

So one law (the FIPPA = ATI law) is vitiated to prevent an abuse that is against the law. Whereas academic freedom is suppose to be an iron-clad protection against exactly the expected abuse.

In the same breath, therefore, the alleged-sacrosanct academic freedom is acknowledged to be ineffective (except in restricting transparency).

I say: Either apply academic freedom as though it were real or abolish it. It is meant to protect independence not create secrecy. Secrecy is needed where there is no independence. A free society is an open society. Let's get our concepts straight.