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UO’s Tobin Klinger in denial about Jane Doe’s confidential counseling records

8/21/2015: Diane Dietz of the RG has more, here:

UO psychology professor Jennifer Freyd, who pushed to make the UO counseling center records private, said she was “very, very pleased” with the Education Department’s guidance.

“They’ve gone a long way to clarifying the situation,” Freyd said Thursday. “The only way people are going to be able to get help for psychological suffering is if they feel that their information is going to be private. That’s at the heart of therapy.”

UO spokesman Tobin Klinger issued a statement saying: “The guidance itself is quite helpful and serves to clarify best practices in highly sensitive and complicated situations, because obviously basic common sense and decency have no effect on the UO’s General Counsel’s office.”

OK, I totally made up the last part of that Klinger quote, but it’s what everyone is thinking, and the RG editorial board is not afraid to say it:

The University of Oregon shouldn’t need a six-page letter from the U.S. Department of Education to tell it to respect the privacy of students’ medical and counseling records. But the department’s letter clarifies what ought to be a matter of common sense: Universities provide health services to promote their students’ physical and mental well-being, but students will avoid those services if they have reason to believe their medical records might somehow be used against them. …

8/20/2015: Rich Read has the latest trust-destroying quote from UO’s chief strategic communicator Tobin Klinger, in the Oregonian here:

A federal official advised universities this week to not share a student’s medical records without written consent, contradicting the University of Oregon’s release of an alleged gang-rape victim’s therapy records to the school’s lawyers.

The six-page draft letter from Kathleen Styles, the U.S. Education Department’s chief privacy officer, was issued this week after repeated inquiries by The Oregonian/Oregonlive and members of Oregon’s congressional delegation.

In effect, the letter steamrolls a UO Counseling Center confidentiality policy weakened in March by center director Shelly Kerr, clinical director Joseph DeWitz and university lawyer Samantha Hill. The Oregon Board of Psychologist Examiners is investigating four UO psychologists, including the two center managers, after Kerr secretly gave the woman’s records to university attorneys in December without seeking her permission or notifying her therapist, Jennifer Morlok.

… But Tobin Klinger, UO senior director of public affairs communications, said the letter reinforced the UO’s policies.

“It is also completely consistent with how the university has always operated,” Klinger said Thursday in an emailed statement.

Asked whether Styles’ letter contradicted UO Counseling Center’s confidentiality policy, and whether the letter might support Morlok’s Bar and Psychology Board complaints, Klinger said: “If those reviewing the approach taken by the university choose to apply the guidance, it will undoubtedly help to validate the actions that were taken.”

The letter of guidance interprets federal laws and regulations in a way that appears to give new impetus to an appeal filed recently by Morlok with the Oregon State Bar. The lawyers’ professional organization dismissed complaints she lodged against UO attorneys Hill and Douglas Park.

Meanwhile Klinger’s new boss Kyle Henley is on his way from Colorado, but UO is still sitting on his job search materials. From what I can tell there was no public job announcement. For the VP for Communications? Not exactly the way to rebuild trust:

Subject: pub rec request VP for Communications info
Date: August 12, 2015 at 10:53:55 AM PDT
To: Lisa Thornton <[email protected]>
Cc: Greg Stripp <[email protected]>

Dear Ms Thornton:

This is a public records request for the following documents relevant to the recent hire of a new VP for Communications

1) Job announcement
2) resumes and cover letters for finalists
3) Search committee members

I ask for a fee waiver on the basis of public interest. I’m ccing Greg Stripp as he should have these document easily at hand.

8/19/2015: US Dept of Ed moves to close Doug Park’s counseling confidentiality loophole

Some good consequences from the March 2014 basketball rape allegations, and more evidence for why the truth about UO’s extraordinary efforts to hide these allegations from the public and its bungled efforts to deal with them needs to be revealed before UO can put this behind us.

Credit for this proposed change in FERPA should go to UO Professors Jennifer Freyd and Carol Stabile and a gang of other UO faculty, students, OA’s, and staff who used the newspapers, a petition, and a UO Senate resolution to publicize how the UO General Counsel’s office and VP for Student Affairs Robin Holmes had seized Jane Doe’s confidential records from her counselor at the UO Counseling center. Oregonian editorial here. RG editorial and Freyd Op-Ed here.

Meanwhile the OA’s who first reported that the UO GC had taken the records have filed a tort claim against UO alleging that UO has retaliated against them for whistleblowing. And UO AVP for Collaboration Chuck Triplett has been using the fact that the Senate resolution required a temporary suspension of the rules to argue that the Senate is out of control and can’t be trusted with shared governance. Not a smart place to pick a fight, Chuck.

The Chronicle’s story here omits the remarkably difficult and successful effort that led to this proposed policy change:

Student medical records should stay private with only a few, specific exceptions in cases where colleges that are sued need the information to defend themselves, according to draft guidance provided to colleges on Tuesday by the U.S. Department of Education.

… Student-privacy protections became a hot-button national issue this year after a University of Oregon student who said she had been raped by three basketball players sued the university, claiming it violated her civil rights when university lawyers pulled her therapy records from a campus counseling center. That case has since been settled.

… After the Oregon case was publicized, mental-health supporters and women’s advocates expressed outrage online and demanded clarification about what the Family Educational Rights and Privacy Act, known as Ferpa, allows colleges to do with students’ medical records. Ferpa is a federal law that provides privacy protections for student records, and colleges that violate it could lose their eligibility for federal student aid. It also provides assurance of confidentiality to students seeking support after a traumatic event.

“We want to set the expectation that, with respect to litigation between institutions of higher education and students, institutions generally should not share student medical records with school attorneys or courts, without a court order or written consent,” Ms. Styles wrote.

… Nothing in the Education Department’s new guidance indicated that Oregon officials overstepped their authority in accessing the woman’s counseling records. However, its caution that colleges should pull such records only “in the rarest of circumstances,” such as when campus safety is threatened, raises questions about whether such a move was necessary. …


  1. fUll disclOsure 08/20/2015

    Maybe you want to excerpt the paragraph right after that last one?

    “The letter of guidance interprets federal laws and regulations in a way that appears to give new impetus to an appeal filed recently by Morlok with the Oregon State Bar. [b]The lawyers’ professional organization dismissed complaints she lodged against UO attorneys Hill and Douglas Park.[/b]

    Doesn’t take away from the ample head-shaking-ness of the article, but you know, whatever floats your boat.

    • uomatters Post author | 08/20/2015

      Thanks, added.

  2. English81 08/20/2015

    I’d be a little more concerned about the Dept. of Education’s continuing efforts to steamroll due process on college campuses. And why shouldn’t a University, or anyone, use any legal means available to defend itself against allegations that may not be true?

    • Pedant 08/20/2015

      “should” is about ethics not law.

      • ODA 08/20/2015

        Great point which is why if you ever want to write something legally binding use “shall”… Too, bad the plain english movement does not understand this.

    • ODA 08/20/2015

      I agree the Dept. of Education should not steamroll due process; however, If a student seeks medical help or counselling off campus they are protected by HIPA as well as basic decency and the defendant would have to get a warrant to get access to medical and treatment records. The fact that the university as well as the people here are supposed to act in the the best interest of the student, is paramount to our students and should a student have something terrible happen and a trusted representative of the school provides medical services and treatment, only to hand over what would but for FERPA be protected confidential treatment records which could then be used as fodder for a coverup or slander campaign…

      Shouldn’t our University students have all the same legal protections that would have been given if they were not shepherded into our clinic by our private police force?

      PS: I do not think the Styles Dear John letter does give our students equal protection… That would be as simple as removing the tortured loophole in FERPA and letting HIPPA cover treatment records where treatment records are never convert to education records (WHO THE HELL WROTE THAT AND WHY?)

      • just different 08/21/2015

        There’s a whole lot wrong with FERPA which, ironically, was conceived with the best of intentions back in 1974. FERPA doesn’t just protect privacy, it also allows students (or their parents, in the case of minors) to inspect their education records and formally request corrections of inaccurate or misleading information. The provision that treatment records were education records was probably intended to allows students right of access and amendment under the stronger FERPA rules. (I don’t think HIPAA even allows amendment at all.)

        Regrettably, this provision was twisted into a “loophole” by piece-of-shit university attorneys who don’t give a damn about the purpose of FERPA. This is but one of many ways in which FERPA has been perverted in the last 40 years into a tool for universities to control access to records in ways that have nothing to do with student privacy. Anything a school doesn’t want anyone to see magically becomes an “education record,” unless the student herself wants to see it. You get the idea.

    • just different 08/21/2015

      OK, you totally punked me with the Klinger quote.

      In response to English81 above, universities absolutely should not use any legal means available to defend themselves, for the following reason: The playing field isn’t even remotely level. In addition to having the huge advantage in money, power, and influence that any big institutional defendant has, universities are granted enormous across-the-board legal latitude precisely because they can supposedly be trusted to act ethically and not abuse their discretion for self-interest.

      Either universities need to be stripped of these special privileges or they need to be severely punished when they cross the line. The DoE’s “Dear Colleagues” letter at least takes some kind of action, but it doesn’t go anywhere near far enough in making an example of UO. And in turn UO needs to make an example of the people who thought grabbing Jane Doe’s records was OK and then lied about it.

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