Chronicle of Higher Ed asks why UO’s General Counsel wants faculty emails

2/15/2017 update:

Here (gated if off campus). A snippet:

The dust-up at the university began in November when Kenneth Jacoby, a reporter for the Daily Emerald student newspaper, filed two public-records requests for emails exchanged between several coaches and officials associated with the football team. Mr. Jacoby asked for fee waivers for both requests based on his belief that the records were in the public interest.

Nearly three weeks later, he was told it would cost over $700 to fulfill his request. He then got in touch with Mr. Harbaugh and in December filed a complaint over the cost with the Transparency Committee, which was established in 2010 to review university procedures for processing and fulfilling public-records requests.

In an email to the committee on January 22, Mr. Harbaugh told members that they would be hearing Mr. Jacoby’s complaint the following day and discussing a response. The email, which was obtained by The Chronicle, included an attachment with Mr. Jacoby’s complaint letter.

Mr. Harbaugh, a transparency advocate, files significant numbers of public-records requests in most years. In fact, according to the public-records office, he files more requests than any media outlet. The professor operates a blog, UOMatters, aimed at uncovering misdeeds at the university. In a 2015 profile by The Chronicle, Mr. Harbaugh said he hopes to make the university a “better place” through his transparency activities.

Mr. Reed, however, said in an interview that he began to fear that the Transparency Committee was not, itself, being transparent, and that he was concerned about conversations he was being excluded from.

So he filed a formal request for Mr. Harbaugh’s emails regarding the Senate Transparency Committee that evening, including those sent to media outlets. Mr. Reed specifically asked for emails sent to The Register-Guard, The Oregonian, the Oregon Daily Emerald, The Chronicle of Higher Education or Inside Higher Ed. …

In related news, GC Reed’s report on the Duck Athletic Department’s alleged efforts to stifle free speech by threatening to take away Jacoby’s press pass should be out in a week or two.

Note: Just to be clear, I turned over all the emails that were covered by GC Kevin Reed’s request, and I did so at no charge to him. I’m still hoping he’ll take the high road w.r.t. our student-journalists public records request’s, someday. A university that spends millions of dollars on public relations ought to be able to find a few thousand for public records.

2/8/2017: UO Pres Mike Schill’s lawyer wants to read professor’s emails with reporters

UO general counsel Kevin Reed is apparently the first university lawyer in US history – not just UO history – to use the public records laws to get a professor’s emails with reporters and free speech and academic freedom advocacy groups such as FIRE and SPLC.

Full disclosure, I am the professor that Mr. Reed is after. The Register Guard’s Diane Dietz has the story here:

The University of ­Oregon’s top lawyer is using public ­records law to get a professor’s emails to and from reporters and editors of The Register-­Guard, The ­Oregonian, the ­Oregon Daily ­Emerald, The ­Chronicle of Higher ­Education and Inside Higher Ed.

The lawyer, UO General Counsel Kevin Reed, sought any emails exchanged with those publications related to the University Senate’s transparency committee during the past year.

Read it all.

Here are some emails about this, starting with General Counsel Reed’s request:

From: Kevin S Reed <ksreed@uoregon.edu>
Subject: Re: Transparency Committee meeting, Monday 10AM, 412PLC
Date: January 22, 2017 at 8:52:29 PM PST
To: Senate President <senatepres@uoregon.edu>, Chris D Sinclair <csinclai@uoregon.edu>, Brent D Walth <bwalth@uoregon.edu>, Zane A Karimi <zkarimi@uoregon.edu>
Cc: Julia S Cohalan <jcohalan@uoregon.edu>, Kenny Jacoby <kjacoby@dailyemerald.com>, Greg J Stripp <stripp@uoregon.edu>

I will be at the meeting, but note the following:

I was unaware that Prof. Harbaugh was elected chair by email. I am unaware of any such vote taking place, though I was under the impression I am a member of this committee. This follows what appears to have been my exclusion from communication in recent weeks concerning Mr. Jacoby’s complaint regarding the PRO’s decision to follow its policy and not waive fees in responding to a request from the Emerald for student records. I understood that I was a non-voting member of the STC. It seems clear, though, that I am being left out of communications involving the core of the committee’s work. This scarcely seems consistent with the “transparency” part of the committee’s title. If I am not to be included in the communications of the committee, I decline to participate as a member.

Please consider this a request, under the Oregon Public Records Law, of all communications made in in the past 12 months, between the current chair of the Senate Transparency Committee and members of the committee concerning the business of this committee, as well as all communications between the Chair of the STC and any members of the media concerning or mentioning the committee.

I will excuse myself from any discussion by the committee regarding an expansion of the fee waiver policy, due to my belief that a discussion of the subject involving the Committee chair would involve a potential conflict of interest. Prof. Harbaugh was the most frequent requester of public records in the year just ended, and amongst those most frequently to withdraw his request for records when presented with the estimate of the costs associated with the production of those records. Since any action by the committee to demand a change in the PRO policies on fees and fee waivers, if adopted, would have direct financial impact on Prof. Harbaugh, I believe it would be a conflict of interest for him to participate in such a decision. Given Prof. Harbaugh’s participation in the matter thus far, I will refrain from participating in any discussion on the subject in the meeting unless he recuses himself, in order to avoid any appearance that I condone this conflict.

I have attached the Public Record’s Office’s SOPs, setting forth its approach to fee waivers, for the committee’s information. It is unclear to me why the committee would be asked to “make recommendations” regarding the PRO’s balanced approach to fee waivers without presenting the committee with the actual policies implemented by the PRO. So, here they are.

4. I believe the complaint presented by Mr. Jacoby is moot. In his complaint, Mr. Jacoby makes clear  that he seeks records relating to specific, identifiable students at the university. Since this “targeted” request seeks educational records of students who are identified, or are identifiable
within the context of the records and the request, his request has been denied, and any request for fees is now mooted, a decision communicated to him last week. Any records are educational records of identifiable UO students and cannot be released without their consent. The Emerald is no longer being asked to pay fees for the responsive records, since there are no responsive records that can be produced without violating the federally protected rights to privacy of the students involved.

My response:

From: Bill Harbaugh
Date: Friday, February 3, 2017 at 11:17 AM
To: Kevin Reed
Cc: Public Record Requests
Subject: Re: Public Records – Request for Documents 2017-PRR-172

Dear General Counsel Reed –

Two clarifying questions for you:

1) Does your request for
all communications between the Chair of the STC and any members of the media concerning or mentioning the committee
includes any such communications from my non-UO hosted email accounts, or texts on my personal phone?

2) When you say “any members of the media”, are you including my communications with bloggers, and organizations such as SPLC and FIRE?

Thanks,

Bill Harbaugh
Economics Prof & Senate Pres
University of Oregon
http://senate.uoregon.edu

Reed’s response:

From: Kevin Reed <ksreed@uoregon.edu>
Subject: Re: Public Records – Request for Documents 2017-PRR-172
Date: February 3, 2017 at 3:04:14 PM PST
To: William Harbaugh <harbaugh@uoregon.edu>
Cc: Public Record Requests <pubrec@uoregon.edu>

Senate President Harbaugh:

In answer to your questions:

1) I seek all communications concerning or mentioning the STC you made in your capacity as an officer of the University Senate (Vice President, President or member or Chair of the STC), regardless of which media or device you sued for your communication.
2) No. I do not believe FIRE or SPLC qualify as “media.” If it helps in narrowing the search, please feel free to limit my request to communications with reporters, editors or other personnel associated with the Register Guard, the Oregonian, the Daily Emerald, The Chronicle of Higher Education or Inside Higher Ed.

But, given that you have shared that you correspond with FIRE, I will make the additional request under the Oregon Public Records Law:

Please share any communications you have had with persons associated with the Foundation for Individual Rights in Education in the past 12 months, made in your capacity as an officer of the University Senate or member of any of its committees, which communications relate to or concern freedom of speech or academic freedom at the University of Oregon.

Kevin S. Reed | Vice President and General Counsel
Office of the General Counsel
219 Johnson Hall | Eugene, OR 97403-1226
(541) 346-3082 | ksreed@uoregon.edu

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38 Responses to Chronicle of Higher Ed asks why UO’s General Counsel wants faculty emails

  1. honest Uncle Bernie says:

    This will be more great publicity for UO, broadcast all over the Chronicle, FIRE, IHE, the RG, Oregonian, probably WaPo and NYT. You can’t possibly buy this with a million football commercials!

    I’m so glad UO has so much capital of every kind to expend on this.

    Great after all the media attention on blackface, free speech at UO — the Berkeley of the North in our own passive aggressive way — the never ending saga of edifying sports stories…UO on a roll!

    As UO perfectly put it once under the late Dave Frohnmayer — “The good news just won’t stop!”

    I look forward to months and years of this story.

    This urgent work must proceed!

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  2. Sherlock says:

    You should give Reed everything – redacted of course. And get a personal check from him for $973.00. That should cover your cost.

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    • Simplicius Simplicissimus says:

      That was my first thought exactly – just reversed. Huge fee (I thought more in the range of $5,000), considering the many hours it will take to redact it all. AND – make them wait!

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  3. Offbeat says:

    Where do they get these clowns?

    This place is so embarrassing.

    If they had any guts or personal sense of responsibility they would be glad this site exists. The people really missed thier calling. I hear Trump Corp is hiring.

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    • Faculty fed up with blow-hard leadership says:

      This site is full of Trump-level insults, oversimplifications, self-aggrandizement and all the rest, that you guys just lap up like the Fox-ers. And you don’t even realize it! Keep on in your own little echo-chamber, while faculty who spend time on research and teaching do their thing…

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    • Margaret says:

      “their”

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  4. Quackster says:

    I look forward, of course, to the cost estimate of assembling this material, including the billable hour rate for the task. Should help the Scotch budget.

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    • UO Matters says:

      Not a bad idea, but I already gave Mr. Reed the records, no charge. Mostly they are about his efforts to justify his Public Records Office’s crazy fees for a simple 5 minute request for UO accounting data. The Oregon DOJ had to get involved, then he caved.

      OK, so I might have left out a few emails with reporters.

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  5. Max Powers says:

    A good colleague once told me “Always write an email like you are writing to the jury.”

    Like it or don’t, any email one produces in a public setting is a public document.

    Live by public records die by public records… Or is that live by the three point shot, die by the three point shot?

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  6. Andy Stahl says:

    UO’s general counsel needs a safe space to heal his hurt feelings in private.

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  7. Moonman says:

    They gotta put this place under new management. Oh, wait, it is under new management.

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    • honest Uncle Bernie says:

      Something about it makes them start to lose it after they’ve been here a little while. The Hat, Mike G, Mike S …
      Is it something in the water in Johnson Hall?

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  8. transparency says:

    “OK, so I might have left out a few emails with reporters.”

    The patron saint of transparency is not being transparent? Can’t write this stuff better.

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    • Reductio says:

      I hate to say it, but I agree with this sentiment. Even though it’s spectacularly unfair, UOM has a golden chance to take the high road here.

      Willingly and easily turning over all the emails, unredacted, would really highlight the absurdity of the university’s public records office. By refusing, aren’t you tacitly endorsing the behavior of the administration?

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      • UO Matters says:

        I have turned over all the emails that were covered by GC Kevin Reed’s request, and I’ve done so at no charge to him. I’m hoping he’ll take the high road w.r.t. our student-journalists’ request, someday.

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        • Reductio says:

          That’s your headline, then. He’s trying to outflank you and get you labeled a hypocrite to diminish your credibility. Scream from the rooftops!

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  9. deborah olson says:

    I don’t understand. If he wanted to know what the transparency committee was up do, why didn’t he attend the meetings, call a meeting, or talk to members?

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  10. just different says:

    I feel like I’m missing something. If this is harassment, it’s the dumbest attempt at harassment I’ve ever seen. Maybe Reed somehow thought he was being aboveboard by making a PR request instead of just going directly to the committee?

    But it is disappointing that Reed has apparently done nothing to get the Public Records office to just turn stuff over without having to go through the whole protracted song and dance.

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    • ODA says:

      Just Different,

      Exactly, did he first go to the committee or even the professor in question first, why did he go straight to a PR request? I am no lawyer but I would think that the email sent to Dr. Harbaugh is enough evidence to let an administrator go or not renew his contract (if he did not first ask directly for the documents.

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      • just different says:

        Evidence of what exactly? Strictly speaking, as Harbaugh’s employer, Reed could have dispensed with the PR request and just pulled his mailbox, especially since he was conducting University business. If there’s something nefarious going on here, I don’t see it.

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        • reaction says:

          At least evidence of trying to be intimidating, if nothing else. There were easier ways to get the emails: a polite request to Bill, a formal request to a higher-up, etc. Doing a formal PR request to a professor is bizarre, especially from the university’s lawyer.

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          • UO Matters says:

            I’m no lawyer, but it’s not just bizarre – it’s not allowed under Oregon’s Public Records Law. That law is about disclosure of public records to citizens, not about disclosure to public agencies or their officials. Despite this, Kevin Reed made the requests as General Counsel – from his official UO email address with his signature file identifying himself as UO General Counsel. Given the attempts of the previous interim GC and the GC before him to discipline me a reasonable person might view this as an attempt to intimidate.

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            • just different says:

              I dunno, Bill. The previous GC (and interim GC) were a different ball of wax. It still looks to me like Reed was just being tactlessly lawyer-careful with his weird request. It’s not the sort of thing that inspires harmonious relations, but calling it intimidation might be going a bit far. The way the student reporter was jerked around–still–is more concerning.

              Kevin, if you’re reading this, please stop with the bureaucratic paranoia and nickel-and-diming for public records requests. Can’t you see that it just backfires? Don’t your lawyers have better things to do?

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            • Widget#298 says:

              They do the same to information request by SEIU leadership.

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        • ODA says:

          JD,
          Of a lack of understanding of his job and position. As stated by others he could have: just asked; asked at the committee that by his own email states that he is a member but is not showing up to do his duties; asked the dean, provost, president or what ever authority is needed to request the documents as a superior; or ask to covertly access the work email server.

          Perhaps it is to set precedent to go after his communications around UOM?

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  11. Winston Smith says:

    This place is ran by corporate lawyers, which is fundamentally at odds with education and creative research. Connect the dots: draconian contracts to track volunteers. Asking for UOM’s emails. All outside guest speakers / artists invited by schools now need to carry insurance. Creation of new artistic works requires both approval and insurance (yes you read that right). Can you see the bigger picture here?

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    • honest Uncle Bernie says:

      I guess it’s what happens when a Chicago real estate lawyer takes charge of a crew of paranoids.

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    • Old Grey Mare says:

      Can you elaborate on the matter of insurance for speakers? Where is this policy published? Thank you.

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    • Widget#298 says:

      Note HR hires JD’s, too.

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  12. Simplicius Simplicissimus says:

    Somebody explain this to me please:
    “Since any action by the committee to demand a change in the PRO policies on fees and fee waivers, if adopted, would have direct financial impact on Prof. Harbaugh, I believe it would be a conflict of interest for him to participate in such a decision. ”

    Wouldn’t EVERYBODY benefit from such a decision? Also – aren’t Prof Harbough’s public records requests, at least in part, also supported by donations (here on UOM)?
    Is it really a conflict of interest if trumped up fees are reduced? I thought COI had something to do with revenue/receiving money/gifts? Appears to be rather artificial way of argumentation….

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  13. blurst of times says:

    Even Reed finds the public records office too onerous to even bother trying to use it.

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  14. Anas clypeata says:

    I like that this lawyer’s auto-correct (software or wetware) apparently turns a perfectly useful verb, “used”, into “sued”:

    “… regardless of which media or device you sued for your communication”

    Freudian lawyer slip. You could make this stuff up, but nobody would believe you.

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  15. Plain Interested says:

    I’m having a hard time figuring out the nexus between a student journalist not getting a FOI response from the UO to the University General Council requesting FOI from a professor. It appears both matters are related to the Senate Transparency Committee and the fact he is too busy to attend? And too busy to read minutes? And not organized enough to send an observer? And too busy to pick up the phone or email questions? What a bunch of bull. I’m getting that his feelings are hurt for some unknown reason, and that this is his way of expressing it. What a shame to waste your newest on the job on something so petty, when the previous GC’s sucked. I’m also having a hard time that an executive at UO with multi $100,000’s of salary has nothing better to do than become a parody of good executive managing. We now we can easily lump him in with Randy, Sam and Doug as paragons of intelligent job performance. Time to get a new general counsel in my opinion.

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  16. UO Reform says:

    Time also to get a new President and get rid of his corporate board. Schill’s jacking tuition another $1,000 while he sucks down an outrageous $1 million a year and has his overpaid lawyer up to this nonsense.

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    • Widget#298 says:

      AND making student food service workers pony up $ for their shift meal, AND making staff food service workers pony up $ for their shift mean (they tried it in the fall, they’ll go for it in economics SEIU bargaining you can get) and they’re squeezing the least paid on campus.

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  17. Eric B Rasmusen says:

    An interesting legal question is which emails were sent as a universty employee and which as an Oregon citizen. That is crucial for a FOIA request, isn’t it? I suppose emails that used your university count might be automatically counted as employee emails, but not emails that used a separate account— that is, not counted automatically.
    I wonder if it would be useful to think of this on the University side? That is, make sure that any FOIA requestrs specifically ask for email from any accounts, not just university ones, that are being used for university business.

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