Subject: public records request, Klinger communications on archivists Date: March 27, 2015 at 3:30:59 PM PDT Cc: Tobin Klinger <firstname.lastname@example.org> To: Lisa Thornton <email@example.com>
Dear Ms Thornton -
This is a public records request for copies of any emails, texts, tweets, andor documents sent by UO spokesperson Tobin Klinger to reporters, from March 20th to the present, giving information on the investigation of the UO Presidential Archives release and the employment status of the UO archivists.
I’m ccing Mr. Klinger, as he should be able to easily provide these, but if not I ask for a fee waiver on the basis of public interest, as demonstrated by the fact that a UO spokesperson sent them to reporters.
What I do know is here, including Sharon Rudnick’s version of the archives investigation, which UO had said would be independently done by Hershner Hunter – not overseen by a colleague of the same Randy Geller who wrote the memo advocating the dissolution of the UO Senate that is at the heart of the controversy.
Rob Moseley had to cover a Ducks game, so Tim Gleason, who just stepped down as UO’s Journalism School Dean, gamely took his place on the Covering Higher Education panel. He did not seem to be happy to be on the podium with a blogger.
Samantha Matsumoto talked about the Emerald’s coverage of sexual harassment at UO. An interesting story on rules requiring mandatory reporting, by her and Sami Edge is here. The mandatory reporting issue is a tough one, since it tends to reduce students’ willingness to discuss harassment and assault with UO employees.
Gleason went last. He started off listing his resume, starting with his work as a reporter and photojournalist in Long Island in the 1980’s. Ever curious, I checked google news archives, but couldn’t find any of his stories.
This was followed with a long complaint from Gleason about having an uninformed student reporter show up in his office asking questions, without having done the background research. A reporter in the audience responded by talking about how she found other people could be extremely helpful with difficult stories, if a reporter was up front about needing help. A lively discussion ensued.
Gleason then went on to attempt to give a defense of UO’s record on public records. The professional journalists in the audience seemed pretty skeptical. One said that they had worked with many state agencies, but had never found one that was as secretive as UO. I pointed out that OSU was generally more transparent that UO, several reporters agreed.
Another professional reporter raised additional questions about UO’s compliance, explaining to Gleason that yes, Oregon’s law allowed exemptions, but did not require them. I echoed this point. Gleason’s response was that UO followed the law, and explained the reasons for the redactions it made. I told him that they didn’t – the PR office’s explanations were nothing more than boilerplate.
On that point, here are some of my notes from the 3/27/2013 meeting of the PR AAG committee, including Gleason’s comments. These are not verbatim, but I think accurately portray the gist of the discussion:
Special Assistant to the President Dave Hubin: I believe we are operating within the law, which says “may waive”. But the optics are not good.
Public Records Officer Lisa Thornton: We apply the three-part test on page 20 which gives us broad discretion to delay and frustrate, and we drive a truck through that.
Journalism Dean Tim Gleason: Explain.
Thornton: I apply my judgement to ask if the citizen’s of Eugene would benefit from reading about this. (My god). Q: Do you explain your denials?
AD Spokesperson Pinten: Can’t you have drop down boxes or something?
Thornton: We google the requester to see what they are up to. (My god).
Even Gleason sees this is trouble: “It’s problematic to give you this discretion.”
UO Law Professor John Bonine: Oregon law was based on federal law, which contrasts public benefit with private benefit. Commercial is out. If it’s not just for yourself, it’s public benefit.
Gleason: Back on his thing about the burden on the institution. Bonine: First test for public interest, then ask if the extent of those benefits exceeds the cost.
Thornton: So I’m going to have to do benefit-cost analysis? Can I hire an economist
Bonine: Not only that, I want you to put your decision and reasons on the web. Provides guidance to requestors, reduces your unbounded authority.
Thornton: We do have discussions and back and forth with requesters about public interest.
Harbaugh: No, you don’t.
Thornton: Let me backtrack on my previous statement. UO General Counsel Randy Geller has advised me not to explain fee waiver denials.
Gleason’s response at today’s session was that reporters should file a petition with the DA, if they didn’t like UO’s redactions.
He then went off on RG Senior Editor Christian Wihtol’s piece today, reporting that UO had paid $24K to sex columnist Dan Savage to give a public talk. He argued that the piece lacked context, for example about what other speakers were paid. I pointed out that it had taken UO a long time just to respond to the request for the Savage contract, and that UO would have delayed longer, and probably charged a lot of money, for a more general request about fees paid other speakers. Gleason did not give much of an answer.
At this point the discussion about UO and public records heated up. I said that UO was still refusing to give student-journalists fee waivers, and wouldn’t even let them use their own funds to buy the public records. The Student Press Law Center story on this is here:
The Commentator was prepared to pay for the records, but on June 12, the school’s Associated Students leadership adviser told him in an email that the publication could not use its own money to pay for the records. The Commentator is funded through student fees, advertising revenue and private donations, according to its website.
“We officially heard back from General Counsel,” Consuela Perez-Jefferis wrote to Ekblad. “They confirmed that the incidental fee money can’t be used for an outside party’s public records requests because incidental fee money is state money.”
I talked with a SPLC reporter who was trying to do a follow-up on this a month or so ago. She couldn’t get anyone at UO to answer her calls.
I then claimed that UO had *never* given a public-interest fee waiver to a journalist. A professional journalist in the audience said actually that wasn’t true, he’d once got a waiver from Melinda Grier, 10 years or so back. And now that I think about it, the UO Senate Transparency Committee once convinced Liz Denecke to refund $203 in fees to a UO student, for documents about the ORI building. So I should have said that UO hadn’t done this since the days of Lariviere.
Gleason then said that UO waived many fees for simple requests. I asked again if UO had recently waived fees for a substantial request by a reporter working for a regular newspaper on a story of public importance. Gleason didn’t have an answer.
Rumor has it that they’ve now fired at least one of the counseling center employees who objected to UCTC Director Shelly Kerr’s decision to hand over “Jane Doe’s” confidential counseling records to the UO General Counsel’s office.
Now confirmed, by Diane Dietz in the RG here. Ms Stokes’s special crime? Telling the truth:
Karen Stokes, former executive assistant to the director of the counseling center, announced her dismissal in an e-mail broadcast to counseling center staff today.
Stokes and senior staff therapist Jennifer Morlok alleged in February that the university interfered with the student’s care and took the student’s private medical records — to prepare for litigation — without the student’s permission.
In Thursday’s e-mail, Stokes wrote: “I am disappointed that the UO has chosen this course of action. I, along with Jenny, had hoped that our letter of concern regarding the medical records that we believe were unethically and illegally disclosed would promote positive changes.
“Instead of taking our concerns to heart and recognizing the courage it took to come forward with such concerns, the UO appears to be more concerned about defending itself and attacking those who brought the ethical and legal concerns to light,” Stokes wrote.
http://uomatters.com/2015/03/archivists-resign-coltrane-got-sharon-rudnick-to-write-report-on-presidential-archives-release.html?utm_source=twitterfeed&utm_medium=twitter HLGR demands retraction of this post: Klinger says archivists “resigned”, Coltrane got Rudnick to rewrite Walkup’s report on Archives release, no followup from Coltrane on deleted docs
William F. Gary 03/26/2015 at 12:30 pm
Your statement that the University President “got Rudnick to rewrite Walkup’s report on Archives release” is false and defamatory. Ms. Walkup’s report, which has not been released to the public, is the work product of Hershner Hunter alone. Ms. Rudnick did not edit the report, let alone rewrite it. You have no basis to claim otherwise. The document that you identify as the report is not the Walkup report. It does not purport to be the Walkup report and it has not been represented as such. Your claim that Ms. Rudnick rewrote an investigative report because “JH didn’t like what Walkup had to say” unfairly impugns her integrity and her professional reputation. Please retract and correct your false statement immediately.
Dear Mr. Gary –
Someone recently posted a comment from a “William F. Gary” on my blog, demanding that I retract a news and opinion post.
If this is indeed from you, I’d appreciate it if you could confirm this with a signed letter following the requirements of ORS 31.120. I believe you’re familiar with that law, but just in case I’m attaching a previous retraction demand from you, which might be useful as a template. I’m currently traveling, but you can send a pdf to this email address.
Mr. Gary’s previous retraction demand, in which Gary and Sharon Rudnick said I was a news media organization, is here. Interestingly, it was about a post I made discussing the ~$1M HLGR in legal fees that Harrang, Long, Gary and Rudnick’s law firm managed to extract from Oregon taxpayers over the precursor to the current Kitzhaber / Cylvia Hayes scandal. Randy Geller, at the time UO’s General Counsel, wrote a strong defense to the court arguing for the fees. Geller, of course, now works for HLGR.
Dear Professor Harbaugh,
Thank you for your response to my post and for allowing it to appear in the comments section of your blog. I posted it in my own name and from my law firm’s e-mail so that you would not have to guess at who was calling you out on your defamatory comments. As a University professor who often speaks passionately about academic freedom and transparency, I am sure you fully understand the destructive nature of this sort of lie. Not only does it damage those whom you defame, it also does lasting damage to the quality of discourse in the University community. I trust therefore that you will take appropriate steps to correct the record.
While I appreciate your advice concerning the legal requirements of ORS 31.120, I am confident that I have a good grasp on the steps I must follow to hold you accountable if you do not act promptly to undo the harm you have caused.
Thanks Mr. Gary –
Actually, people can enter any name and email address they want, the software has no way of checking on either. It’s one of the charms of the internet. Silence Dogood and Ben Franklin would have loved it. Please let me know when I can expect your letter.
Meanwhile, no follow through on promises from Coltrane or Library Dean Lim to the UO Senate that they would look into larger problems with UO’s transparency and refusal to provide public records, or explain what happened to the documents on athletic subsidies and the Knight Arena – and so much more – that are missing from the digital presidential archives.
OSU Libraries treat patron information as strictly confidential to the extent permitted by law. It is generally for the use of library staff only; it can, of course, be divulged to the patron. Unless required by law, patron information is not to be given to non-library individuals, including parents, friends, professors, university administrators, police, FBI, university security staff, or the CIA. The university librarian is responsible for compliance with legal obligations and court orders.
UO economics professor Bill Harbaugh got the records from the archives and he returned them in late January at the request of the UO administration. Harbaugh is publisher of the insider uomatters.com blog.
The administration’s role in the departure of the archivists is “despicable,” he said.
“This is all about (administrators) being embarrassed,” he said. “They tried to nail me. They couldn’t because of tenure and academic freedom, and so they went after the people they could nail.”
The archivists were just doing their job when they provided the documents, Harbaugh said.
They required Harbaugh to agree to the library’s standard disclaimer, which warns researchers that archives may contain sensitive or confidential information that may be protected by privacy laws and other regulations. It warns the researcher that releasing private information without consent could have legal ramifications.
“They say ‘Look, there’s boxes and boxes of stuff. We haven’t screened it all. We’ll let you look through it, but you’ve got to agree to this confidentiality deal. I agreed to that,” Harbaugh said. “They behaved very ethically.”
Archivists abide by a professional obligation to balance access to public records with confidentiality, Harbaugh said.
“People don’t go into this kind of work without believing in the importance of access. They’re researchers, they’re historians, they use these kinds of records to do their own scholarly work. They know it’s important that this material be maintained and made accessible. I’m really proud of them. They did their job,” he said.
Here’s my email to Library Dean Adriene Lim on this:
Subject: “The Incident”
From: Bill Harbaugh
Date: March 18, 2015 at 12:18:48 AM EDT
To: Adriene Lim <firstname.lastname@example.org>
Dear Dean Lim, Associate Dean Bonamici, and members of the Library Committee -
Thank you for allowing me to attend your meeting today.
At the meeting Andrew Bonamici said that, in the interests of balancing confidentiality and public access, and the impossibility of inspecting every document individually, that the UO archives had policies or procedures for allowing researchers access to files and folders from the archives that had not been fully reviewed for confidentiality. This access was conditional on researchers agreeing not to make confidential documents public. (This is not verbatim, it’s my recollection of the gist of what Andrew said.)
I don’t know what you’ve been told about how I got the digital Presidential Archives, but there was nothing nefarious about it. I sent the special collections reference desk a request for information on how to access the digital archives. I was told that the digital archives might contain confidential documents protected by FERPA or other laws, and that if I agreed not to release those documents, I should send in a usb key and I would get the archives.
[Here’s the disclaimer language: Archival material may contain materials with sensitive or confidential information that is protected under federal and/or state right to privacy laws and other regulations.
Researchers are advised that the disclosure of certain information pertaining to identifiable living individuals represented in this collection without the consent of those individuals may have legal ramifications (e.g. a cause of action for invasion of privacy may arise if facts concerning an individual’s private life are published that would be deemed highly offensive to a reasonable person) for which the University of Oregon assumes no responsibility.]
I agreed to this condition. I sent in the usb key. I got the documents back. I kept the confidential documents confidential, as I had promised.
It strikes me that this is exactly the procedure that Andrew explained today should have been followed by the archives. It was followed.
So, what is this controversy all about? I only posted two documents. No one has made a credible case for either being confidential. One, of course, was very embarrassing to the General Counsel’s office, and, in my opinion, that’s why the UO administration went after me, and the archivists.
UO Prof of Economics
I thought the whole point of hiring Amanda Walkup from Hershner Hunter to do the investigation was to provide some sense of independence and credibility. But no, check the metadata on the otherwise anonymous report Tobin Klinger has released to the press. UO also hired Randy Geller’s HLGR law firm, and Sharon Rudnick wrote the final report. [Note, added at 3/26 2:46PM: By “final report” I mean the publicly released version.] Presumably JH didn’t like what Walkup had to say:
Here’s the text of Rudnick’s report, original word document here, check the document info:
Background: University Records
All of the University’s records are subject to various requirements relating to the maintenance and disclosure of those records. They fall into two categories:
1) non-permanent records, which are subject to retention and destruction according to the University’s Records Retention Schedule, and
2) permanent records, which are accessioned and housed in the University Archives.
In each category, records may be further designated as exempt from public disclosure under Oregon’s Public Records Act, or non-exempt and therefore subject to disclosure.
Permanent Records: Permanent records have historical significance and are designated for permanent retention according to the Records Retention Schedule. When records are no longer active (e.g., in regular use by the originating department), stewardship is transferred to the University Archives. Once accessioned by the Archives, records are processed, described in finding aids, and made available in perpetuity for research and other purposes. In most (but not all) cases, permanent archival records are non-exempt, and once processed, are available to researchers without need for further review or redaction.
Non-Permanent Records: Stewardship of non-permanent records is retained by the originating department. Records are retained for various lengths of time as required by the Secretary of State’s Records Retention Schedule. Pursuant to the public records law, non-permanent records are categorized as exempt or non-exempt from public disclosure. For example, “faculty records” are considered exempt from disclosure. Non-permanent records are not accessioned by the University Archives, and the library is not authorized to determine if or when to release these records. The library offers a limited long-term storage program for inactive non-permanent records, but this is a strictly custodial role. Non-permanent records in storage remain accessible only to authorized staff from the originating department, or to the Public Records Office in response to research requests.
Timeline on Records Release Incident
• On November 13, 2014, a faculty member sent an email to the Special Collections and University Archives (SCUA) reference desk asking for a list or catalog showing what sort of information is available in the Library Archives regarding presidential papers, and information about how to go about accessing them.
• Those records had been transferred to the Libraries by the Office of the President, but permanent and non-permanent records had not been separated based on an exception granted to the unit by the Libraries, and the permanent records had not yet been processed and described — a necessary step before documents are made available in response to such a request.
• In response to the email, approximately 25,000 un-processed electronic records relating to past and current UO presidents were provided to the faculty member on a USB drive on December 3, 2014.
• The records included both permanent (i.e. archival) and non-permanent records, including student and faculty records designated confidential by federal law, state law, or both, privileged communications, and documents that are exempt from disclosure under the Public Records law.
• The University learned of the release of the records and its scope in early January, 2015.
• The University contacted the faculty member who received the records in November 2014, and this individual ultimately returned the records on January 28, 2015 for appropriate processing.
• The University sorted the records and organized them according to university policy and procedures— mainly sorting permanent records from non-permanent records.
• With the initial review and organizing of the documents complete, the University is creating a special team to review and redact information that would be protected under state and federal law so the records can be available through the appropriate channels. This process will take an additional 500 hours.
• Once this work is complete, the University will make all appropriate records available to those who have made public records requests for them. Permanent records will be processed by UO Archives and stored in the University’s Archives. Non-permanent records will be retained according to the Secretary of State’s retention schedule.
• The records were released to the faculty member prior to the customary separation and processing required by UO Libraries, University of Oregon, State of Oregon, and federal policies, procedures, and statutes.
• Records released included information, including student names and addresses, which are protected under state and federal law (FERPA and HIPAA).
• The records were returned, and appropriate review and processing is being expedited by the University to ensure full compliance with rules, code of ethics, and all federal and state laws.