TRANSPARENCY & BEYOND: OPEN RECORDS

CHALLENGES ON COLLEGE CAMPUSES

JEFFREY C. SUNAssociate Professor, University of North Dakota

Visiting Scholar, The Ohio State University

Message for whom?

“Sunlight is said to be the best of disinfectants”

- Justice Brandeis

• Promote democratic action via open meetings and access to records

• Make government accountable

• Avoid corruption

McLendon, M. K., & Hearn, J. C. (2010). State law, policy, and access to information: The case of mandated openness in higher education. Teachers College Record, 112(10), 2649-2663.

Benefits of Open Records

The sort of records requests that public records laws were created to facilitate:

o Request from a local newspaper for policies, procedures, and other documents concerning hazardous chemicals on campus following a chemical leak at another institution

o Request from a job applicant wanting to review documents regarding the position, interview process, individual hired, etc. because of concerns over age discrimination

o Request for vendor contract information of the football coach fearing kick-backs to the coach and certain players

o Request from the community about institutional knowledge about investments of companies that allegedly participate in human rights violations

o Request from taxpayers seeking information about an academic department’s budget after seeing the lavish purchases in furniture

Example of an Unintended Disclosure

• “WADE -- I love you, I really do, and I will never make a statement to the press or anyone else that[sic] could harm you about our relationship.”

Open/Public Records Laws

Basic Steps to Filing an Open Records Act

• Requestor

– Anyone*

– Citizen of the State

• Request Format

– Phone

– E-mail

– Letter*

• Requesting to

– Inspect or Examine*

– Copy*

• Response Time

– ____ [working/calendar] days (e.g., 10, 15, 20, 30)

• Reasonable Fees, Fee Schedule, or Actual Costs

– Limits to certain actions/products such as retrieving, copying, scanning and supervising the examination of records

General Provision

Georgia

“All public records … except [as otherwise provided] shall be open for a personal inspection by any citizen of this state at a reasonable time and place; and those in charge of such records shall not refuse this privilege to any citizen.”

Mississippi

“It is the policy of this state that public records shall be available for inspection by any person unless otherwise provided by this chapter; furthermore, providing access to public records is a duty of each public body and automation of public records must not erode the right of access to those records.”

Record

Georgia

Public record' means all documents, papers, letters, maps, books, tapes, photographs, computer based or generated information, data, data fields, or similar material prepared and maintained or received by an agency or by a private person or entity in the performance of a service or function for or on behalf of an agency or when such documents have been transferred to a private person or entity by an agency for storage or future governmental use.

Mississippi

“Any documentary materials, regardless of physical form or characteristics, used in conducting business of any public body or required to be maintained by any public body.”

Exemptions

Georgia• Confidential evaluations (i.e.,

employment)

• Law enforcement or prosecution purposes

• Employment or appointment

• Medical records

• Public safety records

• Research/study data by faculty/staff

• Student records

• Trade secrets

Mississippi• Personnel records and employment

applications;

• Employment examination questions and answers;

• Letters of recommendation for employment by public body

• Future academic examination questions and answers

• Records of public bodies primarily engaged in the enforcement of criminal laws

• Personal information of victims

• Medical records

• Student records

• Trade secrets

Competing Privacy Concerns

Open Information

Personal Information

Criminal Background

Checks

Criminal Investigation

Credit Reports

Student Records

Medical Records

Proprietary Information

Attorney-Client

Comm.

Library Records

Requestor & Purpose

Georgia• Requestor: Any citizen of

the state

• Purpose: None needed (i.e., any purpose)

• Response: 3 Working Days

• Fees: reasonable charge for the search, retrieval, redaction, and production or copying costs for the production of records

Mississippi

• Requestor: Any person

• Purpose: None needed (i.e., any purpose)

• Response: 14 Working Days

• Fees: reasonable costs for the actual cost of searching, reviewing, duplicating

ADMINISTRATIVE SEARCH

Scenario #1

• November 2013: Vampire State University (VSU) is conducting a search for a new Vice President for Research. VSU is a Carnegie Classified “DRU”.

• January 2014: VSU is considering how much emphasis it should place on undergraduate student research, what is states in the IP rights of students, and how much support will be placed on graduate student support.

• March 2014: Twenty-five applicants have been received. Manny Delgado, the student body president, alerts the search committee that negative rumors have surfaced about one of the candidates but the name is not identified.

• April 2014: A group of student leaders meet with the Dean of Students.– The students demand copies of all the candidate names,

letters of interest, CVs, and other documents provided to the search committee.

• Jay Prichett, the Dean of Students, consults you, the Assistant Dean. He asks: “What should I do?”

• Haley Dunphy, one of the student leaders, tells the Dean that she plans to inform the media with her information. How do you respond?

Scenario #1 Questions

• BRIGHT SUNNY DAY: all employment/candidate records (excluding personal information, investigations)

• SLIGHTLY OVERCAST DAY: employment/candidate records are partially restricted (e.g., finalists only subject to open records)

• FOGGY, LOW VISIBILITY: unless otherwise required, employment/candidate records are restricted

Policy Typology

• Wash. Rev. Code §42.56.250(2) (2012)

– The following employment and licensing information is exempt from public inspection and copying under this chapter: …

• (2) All applications for public employment, including the names of applicants, resumes, and other related materials submitted with respect to an applicant.

Washington Open Records Act

EMPLOYMENT VERIFICATION

Custodian of Public Records

• Secretary of the University

• General Counsel’s Office

• University Relations

• Records & Retention Office

Scenario #2

• The State of Glee is a very sunny, sunshine state allowing all personnel records subject to public access barring certain instances such as a current investigation.

• April 2014: Two staff members at Glee State College, a public, 4-year music conservatory school, had an ongoing feud. One of them, Sue Sylvester, suspected that her arch nemesis Will Schuester did not have the requisite credentials for the job (i.e., questioned whether he had prior budget experience per the job requirement). She filed an Open Records request to obtain the information. Pursuant to the GSC policy, Sue filed the open records request with the Office of the President.

• 10 Working Days Later: Sue receives a letter rejecting the request. The letter states: “GSC is only required to respond to requests in the requestor's capacity as a private citizen, not within a requestor's capacity as a university employee.”

• Did GSC err in denying the request?

• What if Sue Sylvester’s supervisor disciplined her for filing the Open Records request?

• Let’s assume that Sue and Will do not report to the same Associate VP. Would that make a difference?

• What if Sue is also a student? What questions might you ask yourself?

• What interests are at stake here for each of the parties? What opportunities and challenges does this open records request serve?

Scenario #2 Questions

ACADEMIC RESEARCH

Threats to Academic Freedom

• American Tradition Institute v University of Virginia

– American Tradition Institute requested records from University of Virginia under the Virginia Freedom of Information Act on 1/6/11

– Broad request for all materials Professor Michael Mann produced and/or received while employed at the University. More than 32,200 emails and nearly 1,800 other documents

» Included correspondence with 39 named scientists

» Included all documents that “are in any way related” to any of the correspondence with the named individuals

» “All computer algorithms, programs, source code…” used in Dr. Mann’s “day to day research or to produce any work product or result…”

Threats to Academic Freedom

– UVA worked with ATI to clarify the scope of the request, estimate costs, etc.

– Began producing records but omitted certain records on the ground that said records were not subject to FOIA disclosure requirements. Primarily, UVA argued that the omitted documents were communications about research that had not been released / published and, therefore, fall under the “proprietary exemption” in the VA FOIA law.

– Protect research that has not been “released, published, copyrighted or patented.” Va. Code sect 2.2-3805.4(4)

Threats to Academic Freedom

• Problems with this request:

– Dampens the willingness of scholars to participate in the process of academic research

– Reduces willingness of scientists to collaborate, particularly with peers in Virginia

– Harms Virginia’s ability to attract top scholars

– Exemption is vital to the patent process

– Chills academic inquiry and reduce academic debate

Threats to Academic Freedom

*** AAUP explained that “allowing FOIA requests to burden a university with a broad-ranging document demands based on questions concerning scientific validity of a researcher’s work or on the potential that something might turn up would have the strong potential to ‘direct the content of university discourse toward or away from particular subjects or points of view,’ University of Pa. v EEOC, 483 U.S. 182, 198 (1990)”

Threats to Academic Freedom

Amicus from ACE: http://www.acenet.edu/news-room/Documents/Amicus-brief-UVA-Mann.pdf

Amicus from AAUP: http://www.nacua.org/documents/AmericanTraditionInstitute_v_UVA_Brief_AAUP_etal.pdf

INCIDENT REPORTS & STUDENT DATA

Scenario #3

• Emily Thorne, a senior at Hampton State University (HSU) wanted to see if campus police blotters matched the city police blotters for reports of sexual assaults and rape. She asked the university for a year's worth of crime records on sexual assault. As HSU, the university police reports CSAO.

• As CSAO, what concerns do you factor and why?

• Do you approve the release of the data?

• What if Emily Thorne requested data of the gender, races, and majors reported on a spreadsheet of all the sexual assaults?

Scenario #3 Questions

Wastes of Time and Resources

• All electronic mail sent to or from Student Affairs Employee 1 since Jan. 1, 2014

• All electronic mail sent to or from Student Affairs Employee 1 between 12/1/13 and 12/15/13

• All electronic mail sent to or from Student Affairs Employee 1 between 12/16/13 and 12/31/13

• All personnel records for Student Affairs Employee 1

• All electronic mail sent to or from Student Affairs Employee 2 since Jan. 1, 2014

• All electronic mail sent to or from Student Affairs Employee 2 between 12/1/13 and 12/15/13

• All electronic mail sent to or from Student Affairs Employee 2 between 12/16/13 and 12/31/13

From Mark St. Louis at New College of Florida

Wastes of Time and Resources

• All electronic mail between Chief of Police and President

• All electronic mail between Chief of Police and Lieutenant of Police Department

• All electronic mail between Chief of Police and Dean of Student Affairs

• All electronic mail between Chief of Police and Student Affairs Employee 1

• All electronic mail between Lieutenant of Police Department and Student Affairs Employee 1

Wastes of Time and Resources

• All electronic mail between General Counsel and President

• All electronic mail between General Counsel and VP Finance and Admin

• All electronic mail between General Counsel and Dean of Student Affairs

• All electronic mail between General Counsel and Professor

• All electronic mail between General Counsel and Chief of Police

Wastes of Time and Resources

– NOTE:

• Includes “copies of every document related to the matter, regardless of the format in which the information is stored.”

• Some of these have no date range, so go back as far as we can

• Demanded that each request be answered individually and invoiced individually

Some Advice…• Respond immediately

• Know and apply applicable exclusions

– Is it a record? Is it exempted?

• Establish protocols for steps such as …

– Data Retention Schedule

– Disclosure Avoidance & Limiting Access to PII and PHIs

• Be consistent

– Charges

– Resources

– Timeliness

• Document requests and responses

• Consider public exposure when you write

RECAP & TIE-IN

Record? … Exemptions or Redactions?

Context and Timing?

Filing an Open Records Request

WHAT ARE 3 POINTS THAT YOU LEARNED THAT YOU CAN TAKE BACK TO YOUR CAMPUS?

WHAT INNOVATIVE, EFFECTIVE LESSONS MIGHT YOU CONSIDER TO

CONVEY YOUR POINTS?

Q&A

July 2014 Professor of Higher Education

University of Louisville