UO kicks off Constitution Day festivities with warning from Prof Frank Stahl

Sorry, long post, which includes a letter on internal threats to the principle of shared governance from Professor Emeritus of Biology Frank Stahl, and information on the 2012 threat from the administration to dissolve the UO Senate and Faculty Assembly.

Five years ago on Dec 15th 2011 the UO Faculty Assembly ratified the UO Constitution, codifying the roles of the Senate and the Faculty Assembly in shared governance. President Lariviere signed it on Dec 15th, as his last official act:

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To mark the 5th anniversary, Professor Emeritus of Biology Frank Stahl sent this letter on his concern that the closed Faculty Advisory Council may subvert the open processes of the Senate:

On Constitution Day, the Old Man Reflects on Governance

The University of Oregon Charter dictates that the President and professors share the responsibility for governing the University: “The President and professors constitute the faculty of the University, and, as such, shall have the immediate government and discipline of it and the students therein…” (Oregon Revised Statutes, ORS § 352.010; originally section 14 of Law No. 9, Oregon Laws 1876)

Over the years, University governance drifted away from the requirements of the Charter, until, in November, 2008, a letter from the Oregon Department of Justice (DoJ) (www.uoregon.edu/~assembly/dirSF/dirExtra/DOJOP6735.pdf) condemned the UO’s entire governance structure as being in violation of that law.

The DoJ letter prompted the University to create a University Senate with governance authority (and broad membership) subject to oversight by an Assembly (comprised exclusively of Statutory Faculty). These governing bodies, and the relations between them, were defined in a Constitution that prohibited the Senate from delegating any of the governance authority entrusted to it.

UO Constitution, Section “7.1 … The governance authority conferred upon the University Senate may not be delegated in whole or in part to any officer or committee of the University Senate or to any other body.”

However, the Senate does appear to have delegated governance authority to its Faculty Advisory Council. This Council (FAC) has all the trappings of a branch of governance and is insulated from all oversight (December 15, 2015, Senate meeting). Officially, the FAC is charged with being “…responsible for providing the President and other Administration officials with faculty opinion and counsel on the wide range of university affairs.”  It is composed of elected faculty members, the Provost and Assistant Provost, the ASUO President and a couple of elected Officers of Administration as well as the Senate President and Vice President and, of course, the University President. It is allowed to operate in secrecy. The FAC’s charge naively states, “The FAC is purely advisory…”

But, what is the reality of the FAC?  Its composition gives it the gravitas of a governance body, and the FAC has labeled itself as a component of governance: “It [the FAC] is a key arm of shared governance.” (End of year FAC report, June 2013.)  One might say, “If it looks like a duck and quacks like a duck … “

Harm to the Senate: By looking like a powerful secret body, the FAC attracts governance activists. In so doing, it starves the Senate of candidates, weakening that body. The harm done to the Senate doesn’t end there.

Conflicts of Interest: As ex officio members of the FAC, the Senate President and Vice President are confidential advisors to the University President. At the same time, the Senate Officers have been elected, by the Senate, to openly serve the Senate in its role as the channel by which the Faculty can make its wishes known and acted upon. Do you think that being in service to both the President and the Senate creates the potential for conflict of interest?  You can bet your old Nike AJs it does!

Presidential Interference in the Senate? An early, post 1996, Senate President asserted (to me) that a University President sought to manipulate Senate activities by pressuring him.  Later, in 2002, a President pressured the individual Senators (http://www.dailyemerald.com/2003/02/20/assembly-opens-iraq-dialogue/) to forgo both debate and voting on a certain resolution.

Subsequent examples of apparent presidential interference in the operations of the Senate are only inferred and best left unsaid.  However, the charge of interference gains credibility by the recent public testimony of a former Senate President that the University President does, indeed, interfere with the Senate (at 2:18;50 of the video at https://youtu.be/qn1T21TlS_0?t=2h8m2s).

      The President is, of course, free to influence the Senate by making his views known. He can efficiently do that by addressing the Senate in open forum. (That’s why the Constitution made him a non-voting member of the Senate.)  But influence becomes interference if the influence is concealed under a cloak of confidentiality, which is handily available in the FAC.

What can the Senate do to help secure a future for open, shared governance? Deep-sixing the FAC would be the best solution. The gains in the goal of transparent, constitutional governance are obvious. The losses include the FAC members’ weekly(?) hot lunch in the JH conference room.

         A less draconian step would be the removal of Senators from the FAC. This simple step would both reduce the FAC’s temptation to act as a governance body and would eliminate the lever by which the President can exert cryptic control of the Senate. It would also relieve the Senate Officers of the obligation of performing as Confidential Advisors to the President, freeing them to more fully serve the Senate.

The future of our Constitutional shared governance depends on acceptance of the Senate as the University’s sole body of internal governance. The Senate can achieve that acceptance only by freeing itself from control by the FAC. Go, Ducks!

Speaking for myself, I disagree that there is a conflict between faculty participation in open shared governance via the Senate and the closed (but elected) Faculty Advisory Council. I think they are complementary, and the more overlap between the two bodies the better. While President Michael Schill has done a lot to promote shared governance through the Senate, and make it more effective, I think future threats to shared governance with some future president are more likely to come from some future administration appointing un-elected faculty to its own “Advisory Groups”.

The extreme case would be this secret plan devised by former GC Randy Geller under Interim President Bob Berdahl. The Senate only found out about this plan from the fortuitous release of the digital Presidential Archives, or as current Deputy GC Doug Park calls it, “The Incident”:

1/4/2015: The UO administration’s secret plan to abolish the UO Senate

UO Matters operatives have obtained a “confidential” memo from former UO General Counsel Randy Geller to former Interim President Bob Berdahl, recommending that Berdahl abolish the University Senate and prohibit most faculty members from being members of the Faculty Personnel Committee, Faculty Advisory Counsel, Student Conduct committee, the Intercollegiate Athletics Committee, etc.

Geller made this recommendation three weeks after the administration admitted defeat over the faculty union. The full memo is here. As you can see it advises:

1) abolition of the current UO Senate and all its committees;

2) creation of a new faculty-only Senate, limited to making recommendations to the administration;

3) membership on key committees to be restricted to non-bargaining unit faculty; and

4) other committees replaced by “administrative advisory groups” serving at the president’s pleasure.

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Geller’s proposal seems insane, but key parts of it have already been implemented, and it seems the likely source for the statements Interim President Coltrane made at the December emergency Senate Exec meeting about the need for changes in faculty governance “given our new unionized environment”. Coltrane has kept the administrative advisory groups that Bob Berdahl and Mike Gottfredson set up to replace Senate committees, such as the President’s Advisory Group on Intercollegiate Athletics, the Budget Advisory Group, and the Public Records Administrative Advisory Group.

Coltrane has also been working with new UO AVP Chuck Triplett (the former OUS apparatchik who helped Pernsteiner fire Richard Lariviere) and new University Board Secretary Angela Wilhelms to set up a President-appointed Policy Advisory Committee, and revoke the faculty authority that has existed since the founding of the University of Oregon and which is a normal part of faculty governance at other universities. …

UO hires Harrang’s Bill Gary and Sharon Rudnick to investigate blackface prof

Just kidding, that’s who Interim President Scott Coltrane and Interim General Counsel Doug Park hired to investigate me over the presidential archives, along with Hershner Hunter’s Amanda Walkup.

President Schill and GC Kevin Reed have hired Edwin Harnden (http://www.barran.com/our-team/edwin-a-harnden/)  and Shayda Le (http://www.barran.com/our-team/shayda-zaerpoor-le/) to investigate the professor over the blackface incident.

They sure look expensive – so I expect the professor’s settlement will be too:

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I wonder why AAEO Director Penny Daugherty and our GCO can’t handle this, in house? Are we not spending enough money on them?

UO hires Amanda Walkup to defend against Pavel lawsuit

The Docket is here.Walkup’s website is here. Pavel is represented by Marianne Dugan.

Amanda Walkup is one of the many lawyers Doug Park and Scott Coltrane hired to investigate me and the UO archivists over the Presidential Archives release. Walkup seemed pretty efficient and interested in getting at the truth. While she wouldn’t let me record her interview with me – I can only imagine why – she did agree to give me her assistant’s notes. Those notes omit some significant parts of the interview, but I’ve seen worse.

Coltrane never would release her report, although UO strategic communicator Tobin Klinger did release noted big-tobacco attorney Sharon Rudnick’s interpretation of it. Or at least that’s how I remember things. If I’ve got it wrong, here’s hoping HLGR’s Bill Gary will accept my apologies instead of threatening to sue me for defamation again.

UO Public Records Office needs help complying with state & fed law

You don’t think? The job ad is here:

  • Ensures compliance with state & fed law in regards to existing policies
  • Coordinate and consult with University offices, departments, units and programs regarding their records management compliance issues (litigation, public records requests, audits, records retention scheduling, essential records scheduling and similar services);
  • Candidates should exhibit a strong user focus and public service orientation, excellent analytical, interpersonal skills, and an ability to embrace and spearhead change

The webpage of UO’s broken PRO is here.

IT data security, classification, and incident response policies

Over the summer former Interim President Coltrane enacted three emergency IT policies. The administration is now looking to make them permanent, and is asking for feedback. My own initial reaction, as someone that Coltrane’s administration tried to fire over the UO Presidential Archives release (and he did fire two others) is that these policies need to say a lot more about the rights of students, staff and faculty to use IT without excessive fear of reprisals, and about the UO’s obligations w.r.t. public records law, transparency, and academic freedom.

But the King explained it long ago: “Here we go again. We’re caught in a trap. We can’t build our dreams on suspicious minds. And you can’t hear the tears I’m crying”:

Comments welcome, you can expect these policies to receive careful review by the Senate, as well as the SEIU and faculty unions.

Info Security Policyhere. One snippet:

“Monitor the University networks to identify malicious activity”

Malicious. That word covers a lot of territory, including some that is protected by the US Constitution, etc.

Data Classification Policy, here:

  • Internal (moderate level of sensitivity)
    Access to “Internal” data must be requested from, and authorized by, the Data Trustee or Steward who is responsible for the data.  Data may be accessed by persons as part of their job responsibilities. The integrity of this data is of primary importance, and the confidentiality of this data must be protected. Examples of Internal data include purchasing data, financial transactions (that do not include sensitive data), and information covered by non-disclosure agreements.

Data Security Response Policy, here. The meat is in the procedures, which are only on the IT site, here:

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Sounds reasonable, but what would prevent some interim president from going rogue and trying to fire a professor, and firing a few librarians, over a self-described “unlawful release” of presidential archives?

Date: January 20, 2015 at 7:39:38 PM PST
From: “President’s Office” <pres@uoregon.edu> Reply-To: pres@uoregon.edu
Subject: Archive release investigation

Dear Colleagues,

We have recently learned that a significant number of archived records from the President’s Office have been unlawfully released. These records contain confidential information about faculty, staff and students, but our current understanding is that no social security numbers, financial information or medical records were shared.

We have launched an investigation of the incident, and we have put staff members on administrative leave, pending that investigation. The information was sent to a university professor, and we have already requested that the professor return the information and refrain from any public release of confidential information. To our knowledge, only one record has been shared externally at this point.

We are committed to taking steps to mitigate the potential injury associated with this situation.

Sincerely,

Scott Coltrane, Interim President

While we’re on that topic, do these policies follow ALA rules on the privacy of library circulation records?

Archivist James Fox gets settlement $, while paranoid Public Record’s Office redacts UO’s own press releases

In January Interim President Scott Coltrane claimed that my request to the UO Archives reference desk for copies of the UO Presidential Archives led to the “unlawful release” of thousands of pages of documents – most notably a memo from then UO General Counsel Randy Geller to then Interim UO President Bob Berdahl proposing that Berdahl dissolve the troublesome UO Senate and replace it with more complacent faculty.

Coltrane or his lawyers persuaded new UO Library Dean Adriene Lim to break the American Library Association’s ethics code on the confidentiality of circulation records and out me as the source of this memo. VP for Academic Afffairs Doug Blandy then threatened me with discipline if I didn’t return the records.

I did, and so, in need of a new scapegoat, Coltrane fired longtime UO Archivist James Fox – a guy I’d never even heard of, much less conspired with. As with so many other Coltrane decisions, that turned out to be a big mistake.

While I didn’t know who James Fox was, plenty of other people did. Coltrane’s Fox firing was protested by an editorial in the Register Guard, an RG Op-Ed from none other than Ursula LeGuin, an open letter from ~130 UO faculty, and a letter from the Oregon branch of the AAUP. The “incident” was the subject of many stories in the RG, Oregonian, The Chronicle of Higher Education, and more.

The university has not yet released the terms of the settlement agreement – I’ve made a PR request – but presumably it paid some financial compensation to Mr. Fox. I hope it was a lot.

UO has now posted redacted copies of the Presidential Archives that I returned to them, on its Public Records website. They’re available on request from UO Public Records Officer Lisa Thornton here.

I’ve only glanced through these, but I think the redactions made by the public records office can best be described as “erratic” and possibly as “unlawful”.

The letter from the UO Archives giving me the original archives explicitly warned me that the files still contained confidential information and that if I disclosed it I’d be in trouble. UO’s Public Records Office has left a lot of what looks like confidential – or at least personal and embarrassing – documents in their sanitized release, and they include no such warning.

At the same time my initial take is that the sanitized archives have hundreds of “unlawful redactions” that violate the spirit and letter of Oregon’s public records law. Here are a few of the funnier ones, from the top of a big pile:

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That’s right, Dave Hubin and Lisa Thornton have redacted a press release. You can get the full text from “Around the O”, here.Does this mean Around the 0 has been posting unlawful press releases, or does it mean the PR Office has been making illegal redactions?

Here’s another one. They redacted all the faculty names from the search committee that gave Scott Coltrane Jim Bean’s job:

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But wait – those names are all posted on Around the 0, here. It’s trivial to find more violations of at least the spirit of Oregon’s public records law in what Hubin and Thornton have done. Here’s some dire information about the future of the UO law school that seems clearly to be of  public interest. Too bad it’s all redacted in pink:

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And here’s Gottfredson’s open letter sent to the entire community about sexual assault – redacted:

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But the best I’ve found so far has to be this unredacted note from Sharon Rudnick to Mike Gottfredson, congratulating him on hiring HLGR to negotiate against the UO faculty union, hoping he’ll do it again, and thanking him for the bourbon:

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$1M endowment for new UO Archivist

Around the 0 reports:

The Giustina Forest Foundation has pledged $1 million to endow the Giustina Director of Special Collections and University Archives. In the upcoming months and in perpetuity, the gift ensures that the library will always be able to recruit and retain the strongest possible candidate to fill this essential leadership role.

We are incredibly thankful to the Giustina Forest Foundation for this exceptional and highly relevant gift,” said Adriene Lim, dean of libraries and Philip H. Knight Chair. “Among other important duties, the director is ultimately responsible for overseeing the permanent preservation of unique, often priceless materials. The person who fills this role will also facilitate public access to these collections and, in that way, is a valuable partner of our high-achieving faculty members and students.”

Meanwhile no word on a settlement for former Archivist James Fox, who was fired by Scott Coltrane for what Coltrane prejudicially called “unlawful” actions in the release of the UO presidential archives. Coltrane wouldn’t release the investigative report that supposedly backed up that claim.

Speaking of public access, Dean Adriene Lim is still refusing to release her emails to the ALA about “the incident” unless I pay her $210.

IAAF sells 2021 Track Championships to Eugene w/o public bidding

Update: UO’s public records office has been sitting on the RG’s request for documents about the championship bidding process since June 15. PR log here:

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4/16/2015 update: IAAF sells 2021 Track Championships to Eugene w/o public bidding

The BBC has the surprising news here:

The 2021 World Athletics Championships will be held in Eugene, Oregon, after the sport’s governing body bypassed the normal bidding process. The International Association of Athletics Federations (IAAF) said it was “a unique strategic opportunity” to hold the event in the United States for the first time. IAAF chief Lamine Diack said the decision was taken “in the interest of the global development of our sport”.

How much public money did the UO Foundation, Eugene, and the State secretly promise this time? I don’t know, but I expect there will be some reporters digging into this latest from the scandal ridden IAAF.

1/31/2015 update: UO Public Records office finally gives RG IAAF track bid documents – but what did the Presidential Archives show?

I’ll go out on a limb and guess that Dave Hubin’s office carefully scrubbed these records before deciding what to hand over to RG News Editor Christian Wihtol. Presumably the good stuff is in UO’s Presidential Archives though – or was, until Interim GC Doug Park got his hands on them:

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11/25/2014: Paul Weinhold was planning to mortgage UO for Track-Town’s losing IAAF bid

This latest athletics scandal is not going to help UO hire a new President – at least not the sort we need. Diane Dietz’s blockbuster story (in the RegisterGuard tomorrow, online tonight) seems to have made UO Foundation President Paul Weinhold very nervous:

The foundation’s financial guarantee to the IAAF set no upper limit on what the foundation would have been liable for if the Eugene event had turned into a money loser. …

Weinhold said the UO Foundation faced minimal risk in agreeing to cover meet losses because TrackTown USA’s budget was thoroughly vetted and reliable [Editor: Like the Knight Arena budget?]; Kitzhaber favored the legislation that would have provided millions in state support; and the foundation had confidential side deals meant to hold the foundation harmless, Weinhold said in the interview. Weinhold declined to disclose any specifics of those side deals.

“We do not believe we had any exposure, and we had agreements in place that eliminated our exposure. That should be enough for you,” he said.

He should be nervous, given Oregon’s public meetings law, and what he says about the role of the UO Board, which is subject to that law:

Weinhold said the foundation made sure the UO leadership was informed of financial guarantees being made to the IAAF.

“There was full knowledge from the (UO) board to the (UO) president of exactly what we were doing — providing this guarantee,” Weinhold said.

Weinhold said the foundation’s plan was not presented to the Board of Trustees as a whole, but rather in conversations with individuals.

“There was a review with various people at different times — the board leadership with the president with others involved.”

The Board of Trustees didn’t object, but that did not mean that the foundation had an implied approval from the board for the venture, Weinhold said.

“I didn’t say it was implied permission. We didn’t ever talk about permission. We talked about the vision, the benefit to the University of Oregon.”

And then:

“The foundation served this same role with the World Juniors this past summer,” Weinhold told the international body, “and is serving this role with the World Indoor Championships in Portland in 2016.”

The foundation describes its public mission to the Internal Revenue Service — which grants the foundation’s nonprofit status — as “supporting the University of Oregon’s mission of education, research and entrepreneurship…”

Weinhold initially said this week that the Portland meet — not at the UO and not a UO event — was a little far afield.

“That doesn’t help the university in much of any way,” he said. Then he added, “Let me back up. It doesn’t help the university in the way that the World Juniors did, or the World Championship (would have), but it was all part of a three-part series to host the World Championships.”

The foundation believed it would have a better chance of clinching the world championships if it agreed to guarantee all three events, Weinhold said.

The foundation made sure it wouldn’t violate IRS rules by backing the track event, he said. “This was reviewed by our legal counsel and our auditors,” he said.

But after 2016, the foundation has no plans to continue to be a guarantor — “not unless there’s some benefit to the University of Oregon,” Weinhold said. …

Perhaps Eugene lost because we didn’t offer IAAF President Lamine Diack a large enough bribe? I’m guessing the Foundation will try again for 2021, with still more of our money, and even less transparency.  Full disclosure: Last year the UO Foundation threatened to sue me for defamation, for posting that they were “Money laundering for the Duck Athletic Fund”. I really don’t know what to say about this latest, except to say that Milton Friedman was right about “spending other people’s money”.

UO Board Secretary Angela Wilhelm kicked Dietz and me out of the UO Board meeting about this proposal. So say what you will about the corrupt IAAF – at least they posted the video. Vin Lananna, Oregon Secretary of State Kate Brown, Paul Weinhold, and others trying to spend UO’s money. The whole sad thing is worth watching, but I’ve set this to start with Kitzhaber promising to chip in $20 from every Oregon taxpayer (yep, Beavers too), to help out UO’s very high-maintenance Uncle Phil:

8/2/2015 update: More trouble for the notoriously corrupt IAAF, which will be bringing its championship to Eugene in 2021 thanks to a promised subsidy of $30M in Oregon tax money from John Kitzhaber (after he got a $250K campaign gift from Phil Knight) and an open ended promise of UO Foundation support from Paul Weinhold. Page down for the video. The NYT has the drug story here:

KUALA LUMPUR — Endurance runners suspected of doping have been winning a third of Olympic and world championship medals, two news organizations said on Sunday, after a leak of thousands of blood test results from 2001-2012 threw global athletics into chaos.

Britain’s Sunday Times newspaper and Germany’s ARD/WDR broadcaster said they had obtained the secret data from the vaults of the global athletics governing body, the IAAF, supplied by a whistleblower disgusted by the extent of doping.

The news organizations showed the data to two experts, who concluded distance running was in the same state as cycling had been when Lance Armstrong won the seven Tour de France victories of which he has since been stripped.

“Never have I seen such an alarmingly abnormal set of blood values,” the Sunday Times quoted Australian doping expert Robin Parisotto, one of the two scientists, as saying.

“So many athletes appear to have doped with impunity, and it is damning that the IAAF appears to have sat idly by and let this happen,” said Parisotto, an inventor of the test used to detect the blood doping agent EPO. …

Johnson Hall will need new scapegoat for Presidential Archives mess

I gave Doug Park the “zip drive” back in January. UO still hasn’t released a single page.

When the Presidential Archives are finally made public it will be obvious that someone has deleted large swathes of UO history and many important documents from the official record – even before Dave Hubin’s PR Office did its redactions.

Scott Coltrane fired Archives Director James Fox for supposedly releasing too much – so which UO administrator is JH going to scapegoat for deleting too much?

What sanctions would Archivist James Fox have faced under HIPAA?

The “Security Management Sanction Policy” for Trillium, an Oregon community health plan with about 100,000 members, is at the bottom of this post. Companies like Trillium deal with large amounts of sensitive health data, and under the federal HIPAA rules they must have a policy for disciplining employees who inadvertently or intentionally disclose that data to the wrong people. Trillium’s policy looks to be very standard, with definitions of violations and a list of sanctions for employees that increase with the type of offense. To get fired for a first offense, you’ve got to do something pretty bad, like

“1.3.6. Using and/or disclosing PHI/Ph I for commercial advantage, personal gain or malicious harm”

University Archives Director James Fox also had access to a lot of confidential information. So what got Fox fired?

In the letter below, Scott Coltrane says that Fox was fired because he broke UO policy – once – by allowing the archives to release documents from the UO President’s Office that should have first been “reviewed and sorted”. The counter-argument, of course, is that he was fired because he did his job as an archivist, by making the presidential archives available to the public in timely manner. We may never know which, because Coltrane still refuses to release the “independent” investigation report done by Amanda Walkup of Hershner Hunter.

It seems likely that under typical HIPAA compliant employment policies the punishment for James Fox would have been along the lines of a written reprimand, retraining, and a few days of unpaid suspension – even if confidential health records had been made public – which they were not.

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Kitzhaber’s email leaker gets off. UO Archivist who released Frohnmayer’s does not

6/5/2015 update: The RG editorial board, here:

Prosecutors make right call, DAs won’t charge man who leaked Kitzhaber’s emails:

But a scolding is all Rodgers will get from the governor and the DAs. Brown said she hoped that no criminal charges would be filed. The prosecutors fulfilled that hope, saying in their statement that “justice would not be served” by charging Rodgers.

Meanwhile Interim UO President Scott Coltrane is still refusing to reconsider his decision to fire UO Archives Director James Fox, who simply told his staff to follow standard UO archives procedures when I requested a copy of the UO President’s digital archives.

6/2/2015 update: Governor Brown says Kitzhaber whistleblower prosecution should end

Willamette Week has the story, here:

Gov. Kate Brown says the man who leaked former Gov. John Kitzhaber’s emails to WW should not face criminal charges.

Brown says she believes state IT manager Michael Rodgers acted to protect public records after Kitzhaber’s office requested in February that about 6,000 of Kitzhaber’s emails be deleted from state computers and based on what she’s read, his actions were not criminal.

“I think it’s fair to say this decision was an extraordinary act made in an extraordinary situation,” Brown tells WW. “It was something he did based on the lack of trust in the system around him. His intentions were good.”

Rodgers went public with his story last week: He first prevented the emails from being deleted, and then copied them and gave them to WW after concluding someone might still try to remove the records from state servers.

Page down for the parallels between Rodgers and UO Archivist James Fox, who has lost his UO job because interim UO GC Doug Park went wacko after he learned that Fox had approved my request for a copy of the UO Presidential Archives, and I posted a “confidential” memo written by former GC Randy Geller advocating the dissolution of the UO Senate.

Interim President Coltrane called Fox’s actions “unlawful” and he has refused to reconsider the firing, despite a petition from 136 UO faculty, an editorial from the RG editorial board, a letter from UO donor Ursula Le Guin, and many other letters in support of Fox including one from the AAUP – Oregon.

Meanwhile Library Dean Adrien Lim and Associate Dean Andrew Bonamici have still not released their sanitized version of the archives, or explained what they are going to do about the many documents on important public matters that have apparently been deleted from UO’s archives by the UO President’s office.

5/27/2015: The man who wouldn’t delete Kitzhaber’s emails, and a UO archives update

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Oregon State weakens library privacy policy – will ALA approve?

5/11/2015 update:

The new policy, apparently rushed through in response to the UO archives release, is here:

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 old policy said:

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. Only a court order can require the disclosure of patron records.

The question is who decides what is required by law. The American Library Association’s recommended policy is very clear – nothing should be disclosed until a court requires it:

The Council of the American Library Association strongly recommends that the responsible officers of each library, cooperative system, and consortium in the United States:

1. Formally adopt a policy that specifically recognizes its circulation records and other records identifying the names of library users to be confidential. (See also ALA Code of Ethics, Article III, “We protect each library user’s right to privacy and confidentiality with respect to information sought or received, and resources consulted, borrowed, acquired or transmitted” and Privacy: An Interpretation of the Library Bill of Rights.)

2. Advise all librarians and library employees that such records shall not be made available to any agency of state, federal, or local government except pursuant to such process, order or subpoena as may be authorized under the authority of, and pursuant to, federal, state, or local law relating to civil, criminal, or administrative discovery procedures or legislative investigative power.

3. Resist the issuance of enforcement of any such process, order, or subpoena until such time as a proper showing of good cause has been made in a court of competent jurisdiction. 1

1 Note: Point 3, above, means that upon receipt of such process, order, or subpoena, the library’s officers will consult with their legal counsel to determine if such process, order, or subpoena is in proper form and if there is a showing of good cause for its issuance; if the process, order, or subpoena is not in proper form or if good cause has not been shown, they will insist that such defects be cured.

At UO, Library Dean Adriene Lim released the records because the university’s interim general counsel Doug Park asked her to. It appears that Oregon State is now ready to do the same. Will the ALA quietly go along with this?

5/6/2015: Proposed UO Library privacy policy lets admins snoop through circulation records, Coltrane won’t release Walkup report, Library Dean Adriene Lim won’t let ALA release her emails or letter on archives

This has some interesting parallels to the debate over the Counseling Center’s privacy policy.

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ADDITIONAL RETRACTION of claim Coltrane got Rudnick to rewrite Walkup’s report on Archives release.

4/20/2015:  The original title of this post was Klinger says archivists “resigned”, Coltrane got Rudnick to rewrite Walkup’s report on Archives release, no followup from Coltrane on deleted docs.

As explained below, on 4/3/2015 I retracted my statement that Interim President Coltrane got Sharon Rudnick to rewrite Amanda Walkup’s report on the Archives release, in response to an email from Coltrane. In response to the demands for retraction I have received from Mr. William F. Gary of HLGR, posted below and here, I am also retracting my statement that Ms Rudnick rewrote Ms Walkup’s report. My statement was not factually supported, I retract it, and I regret publishing it.

4/3/2015: The original title of this post was Klinger says archivists “resigned”, Coltrane got Rudnick to rewrite Walkup’s report on Archives release, no followup from Coltrane on deleted docs.

As explained below, I am retracting the claim that Interim President Coltrane got Sharon Rudnick to rewrite Walkup’s report on the Archives release.My statement was not factually supported, I retract it, and I regret publishing it.

On March 26 Bill Gary of the HLGR law firm, which Scott Coltrane has inexplicably left in charge of UO’s legal affairs, demanded that I retract the claim that Interim President Coltrane got Sharon Rudnick to rewrite Walkup’s report on the Archives release. See below for the link to Rudnick’s summary of the report, and the retraction demand and back and forth here. Apparently Gary is OK with this post on a potential conflict of interest between HLGR’s OUS billings and Gary and Rudnick’s work on the release of Randy Geller’s memo on dissolving the Senate.

Today I received the this email from Interim President Coltrane:

Dear Professor Harbaugh,

Thank you for calling my attention to recent posts you have made on your blog in which you have claimed that “Coltrane got Rudnick to rewrite Amanda Walkup’s report on Archives release”. You ask whether Mr. Gary represents me in connection with a comment he posted on your blog. Mr. Gary does not represent me. Nor do I see anything in his comments suggesting that he does. However, now that I have seen the fabrications that you have posted, I am beginning to wonder whether I should ask him to represent me.

Let me be clear: I did not ask Sharon Rudnick to rewrite Amanda Walkup’s report and Sharon Rudnick did not do so. Posting false and defamatory comments of this kind can do great damage, not only to those you defame, but also to the university. I join Mr. Gary in asking that you retract these false statements. This is especially true at this time when we are trying to rebuild trust in shared governance.

Sincerely, Scott Coltrane

ORS 31.120 gives news organizations 2 weeks to retract allegedly false and defamatory statements, before they can be sued for defamation. Given Coltrane’s email, I am retracting the claim that Interim President Coltrane got Sharon Rudnick to rewrite Walkup’s report on the Archives release. Here’s is my email to Coltrane:

Dear Interim President Coltrane

Thank you for clearing this up. I have posted a formal retraction of the claim that you got Ms Rudnick to rewrite the Walkup report, at http://uomatters.com/2015/04/archivists-resign-coltrane-got-sharon-rudnick-to-write-report-on-presidential-archives-release.html

In regards to your efforts to improve trust in shared governance, I agree these have been significant. However, UO’s Public Records Office is still using delays, fees and redactions to prevent the release of public records. 

I don’t think that there is going to much of an increase in trust in the Johnson Hall administration, by the UO Community, reporters, or the state at large, until you address that problem.

Yours,

Bill Harbaugh

3/25/2015: And Library Dean Adriene Lim wants $210 to reveal docs on prior reviews of archives.

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.

Under Oregon State’s library privacy policy, it’s Library Dean Lim that would be in trouble, for telling the administration that I had accessed 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.

3/25/2015: Diane Dietz has more in the RG, here:

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 <alim@uoregon.edu>

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.

Bill Harbaugh
UO Prof of Economics
http://harbaugh.org

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:

Screen Shot 2015-03-25 at 5.46.39 PM

Here’s the text of Rudnick’s report, original word document here, check the document info:

RECORDS RELEASE
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.
Conclusion/Findings
• 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.

, revised 3/24/15
00679757.v1

“No harm other than embarrassment to a few administrators has occurred as a result of the release.”

That’s the RG Editorial board discussing the release of the UO Presidential Archives. On the other hand the damage to UO’s reputation and the careers of James Fox and Kira Homo, from Interim President Coltrane’s botched over-reaction, has been immense.

Most of the initial embarrassment was to former UO General Counsel Randy Geller, now working for the university’s law firm, Harrang, Long, Rudnick and Geller, over his proposal to dissolve the UO Senate. Coltrane’s apparent over-reliance on advice from lawyers, as opposed to common sense and decency, has sure compounded the embarrassment though.

The RG Editors then go on to suggest

“An early item on the agenda of incoming UO President Michael Schill should be a review of Fox’s firing.”

That’s a great idea. And it’s hard to imagine anyone better qualified than the dean of a top law school like the University of Chicago to review and take charge of the UO’s problematic General Counsel’s office and its hired attorneys.

The editorial is accompanied by an Op-Ed supporting Fox, from the noted science fiction writer Ursula Le Guin, who has given her papers to UO:

… As an outsider to events on campus, I don’t pretend to have any inside knowledge, but that a breach of confidence of sorts did occur under the auspices of a professor and a graduate student is evidently the case, perfectly visible to the public. That Fox should bear some responsibility as the student’s superior is arguable. But that he should be treated as solely responsible, that he should be dismissed, is an egregious error in judgment and in justice.

It can only be seen as such, and so I hope very much that there is time still to correct it. The damage spoken of in the faculty letter — the damage to staff and faculty trust in the university administration, the damage to the trust of donors like myself, the damage done to public respect for the university — will otherwise be very serious and very long lasting. I will not speak of the damage done to the reputation and well-being of my friend James Fox, but neither will I forget it until it is repaired as soon and as thoroughly as possible.

I only recently learned that Le Guin is the daughter of UC-Berkeley anthropologist Alfred L. Kroeber and writer Theodora Kroeber. Her father brought Ishi, the “last wild Indian in North America” into their home, and her mother wrote his biography, Ishi: in Two Worlds. When I worked in the Wyoming oilfields back in the 80’s, someone had a copy of that book, and it got passed around the crew – ripped in half so two people could read it at once – until it had been completely consumed and endlessly debated around the campfire. This was a group of guys of whom maybe half had finished high school.