TRANSPARENCY & BEYOND:
OPEN RECORDS CHALLENGES
ON COLLEGE CAMPUSES
JEFFREY C. SUN
Associate 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
Mississippi
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.
“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
Mississippi
• Confidential evaluations (i.e.,
employment)
•
Personnel records and employment
applications;
• Law enforcement or
prosecution purposes
•
Employment examination questions
and answers;
• Employment or appointment
•
Letters of recommendation for
employment by public body
• Medical records
•
Future academic examination
questions and answers
•
Records of public bodies primarily
engaged in the enforcement of criminal
laws
• Student records
•
Personal information of victims
• Trade secrets
•
Medical records
•
Student records
•
Trade secrets
• Public safety records
• Research/study data by
faculty/staff
Competing Privacy Concerns
Personal
Information
Criminal
Background
Checks
Library
Records
AttorneyClient
Comm.
Open
Information
Criminal
Investigation
Credit
Reports
Proprietary
Information
Medical
Records
Student
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.
Scenario #1 Questions
• 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?
Policy Typology
• 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
Washington Open Records Act
• 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.
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.”
Scenario #2 Questions
• 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?
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/newsroom/Documents/Amicus-brief-UVA-Mann.pdf
Amicus from AAUP:
http://www.nacua.org/documents/AmericanTraditionInstitute_v_UVA_Bri
ef_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.
Scenario #3 Questions
• 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?
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