Daniel Libit posts podcast with UOM, despite GC Kevin Reed threat

Daniel Libit has won many public records lawsuits against the athletic department at the University of New Mexico, his alma mater, trying to bring some light to their various athletics scandals. He’s recently gone national at “The Intercollegiate”, and asked me to do a podcast about my muckraking experiences with Duck athletics. I’d never even listened to a podcast so of course I said yes, and this is the result:

During the recording of this Daniel asked me about the time – reported in the Chronicle of Higher Education – when UO GC Kevin Reed made this public records request:

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

(Yes, of course I sent him the records, at no charge, and then I sent his emails to the reporters. They laughed and then reported on it, as reporters will do.)

I told Daniel that I thought Kevin’s records request – which he clearly made as UO General Counsel, twice – was “illegal”. I’m no lawyer, but that seems like a reasonable conclusion given that the first page of the free online Oregon Attorney General’s Public Records and Meetings Manual says:

I. PUBLIC RECORDS A. WHO HAS THE RIGHT TO INSPECT PUBLIC RECORDS?

Under Oregon’s Public Records Law, “every person” has a right to inspect any nonexempt public record of a public body in Oregon. This right extends to any natural person, any corporation, partnership, firm or association, and any member or committee of the Legislative Assembly. However, a public body may not use the Public Records Law to obtain public records from another public body. Similarly, a public official, other than a legislator, acting within an official capacity may not rely on the Public Records Law to obtain records, although the individual could do so in an individual capacity. This does not prevent a public body from sharing records with other public bodies; it merely prevents a public body from using Public Records Law as a mechanism to obtain the desired records. [emphasis added] …

Sensibly, Daniel reached out to General Counsel Kevin Reed for his thoughts on this before including my comment in his podcast. Reed strenuously objected to my opinion of his public records request:

On Jan 13, 2020, at 4:59 PM, Kevin Reed <ksreed@uoregon.edu> wrote:

Daniel:

I say that the use of the word “illegal” is an absurd stretch, not that the AG’s position (which I took 10 years ago) is absurd.  Please don’t misquote me.

And saying that a lawyer has broken the law is not subject to “interpretation.”  If your publication has counsel, I suggest you check with them.  If you choose to defame me in your publication, you do so at your own peril.

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

generalcounsel.uoregon.edu

“Your own peril”. Yikes.

So, I want to thank Daniel for deciding to redact my comments on Kevin’s public records  request from the podcast, and saving me the trouble of having to deal with still more peril from UO’s General Counsel.

Full email exchanges between Reed and Libit below the break. Poorly formatted, sorry.

From: Daniel Libit <dlibit@theintercollegiate.com>

Subject: Re: Request for comment for Kevin Reed

Date: January 13, 2020 at 5:15:11 PM CST

To: Kevin Reed <ksreed@uoregon.edu>

Cc: Kay Jarvis <kdjarvis@uoregon.edu>

 

Kevin —

Thank you for the clarification.

Best,

Daniel Libit
The Intercollegiate
(202) 747-4652 cell
dlibit@theintercollegiate.com

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On Jan 13, 2020, at 4:59 PM, Kevin Reed <ksreed@uoregon.edu> wrote:

Daniel:

 

I say that the use of the word “illegal” is an absurd stretch, not that the AG’s position (which I took 10 years ago) is absurd.  Please don’t misquote me.

 

And saying that a lawyer has broken the law is not subject to “interpretation.”  If your publication has counsel, I suggest you check with them.  If you choose to defame me in your publication, you do so at your own peril.

 

<image001.png>

 

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

 

generalcounsel.uoregon.edu

 

From: Daniel Libit <dlibit@theintercollegiate.com>
Sent: Monday, January 13, 2020 2:49 PM
To: Kevin Reed <ksreed@uoregon.edu>
Cc: Kay Jarvis <kdjarvis@uoregon.edu>
Subject: Re: Request for comment for Kevin Reed

 

Dear Kevin,

 

As your email bears out, the issue here is a difference of interpretation about the Oregon public records law. You concede the AG’s Manual has one view of the matter, which is the one Bill Harbaugh invoked when claiming your records request for his emails was “illegal.” You argue that the AG’s interpretation is an “absurd stretch.” That is your interpretation. Having researched the issue and having sought your side of the story, I see no reason why the podcasting of Bill’s comment is, in any way, defamatory. I will read into the podcast the last paragraph of your email, which I believe fully and cogently captures your argument.

 

Sincerely,

 

Daniel Libit
The Intercollegiate
(202) 747-4652 cell
dlibit@theintercollegiate.com

<image003.jpg>

Visit us at www.theintercollegiate.com
Follow us on Twitter or Facebook

 

On Jan 13, 2020, at 4:18 PM, Kevin Reed <ksreed@uoregon.edu> wrote:

 

Mr. Libit:

 

Oxford English Dictionary defines “illegal” as “contrary to, or forbidden by, law.”  Merriam-Webster further defines the synonyms of “illegal” as “criminal, felonious, illegitimate, illicit, lawless, unlawful, wrongful” and my request was nothing of the sort.

 

The AG’s manual is not the law – it is a guide.  The law is found at ORS 192.311 et seq.  And while it is true that the AG manual relies on the statute’s definition of “person” in expressing the opinion that public agencies and public officials are not in the universe of “persons” who may rely on the statute to demand public records, it is an absurd stretch to state that a public official is breaking the law should he invoke the OPRL when asking for public records from another public official.

 

I litigated this very issue in California, where the statute defines “persons” entitled to demand public records in language nearly identical to the Oregon statute:  “any natural person, corporation, partnership, limited liability company, firm, or association.” (Cal. Pub. Records Act, section 6252(c).)  In that case, I took the position advised by the Oregon AG and declined to produce records demanded of the public agency I represented by the City Attorney’s office of the City of Long Beach.  The California Court of Appeals reversed my determination in a published decision, ruling that the broad interpretation demanded of the Public Records laws required a broad interpretation of the term “person.”  LAUSD v. Superior Court, 151 Cal.App.4th 759 (2007).

 

At UO, we favor that broad interpretation in order to promote transparency.  As a result, we regularly provide records under the OPRL to individuals who identify themselves as public officials, including, of course, Prof. Harbaugh.  In so doing, of course, we decline to follow the guidance in the AG’s manual.  That does not make our action or that of the requesters “criminal, felonious, illegitimate, illicit, lawless, unlawful, [or] wrongful.”  Prof. Harbaugh’s statement that I broke the law, along with his statement that I have not read the law that I must interpret every day and your publication of it are defamatory, per se, and I ask that you not publish it.

 

 

<image001.png>

 

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

 

generalcounsel.uoregon.edu

 

 

 

From: Daniel Libit <dlibit@theintercollegiate.com>
Sent: Friday, January 10, 2020 8:55:53 PM
To: Kay Jarvis <kdjarvis@uoregon.edu>
Cc: General Counsel Office <gcounsel@uoregon.edu>
Subject: Re: Request for comment for Kevin Reed

 

Hi Kay,

 

To follow up on our previous exchange, and in anticipation of Mr. Reed’s response Monday, I wanted to highlight the Oregon DOJ Public Records and Meeting Manual, under which section (A) states:

 

“[A] public official, other than a legislator, acting within an official capacity may not rely on the Public Records Law to obtain records, although the individual could do so in an individual capacity.”

 

As I understand, Mr. Reed discussed his request for documents directly with Bill Harbaugh, from Mr. Reed’s university email account, with his email containing a signature line identifying him as the university’s general counsel. In subsequent media accounts about the ordeal, Mr. Reed represented that he took the action of FOIAing Harbaugh’s emails in furtherance of Mr. Reed’s official capacity as a member of the Senate Transparency Committee. According to a story in the Chronicle of Higher Education:

 

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.

 

[CLIP]

 

“I wanted to be clear that I wanted a full set of the records,” Mr. Reed said. “That’s why I put it in the form of a public-records request, to say, Please give me everything in your official capacity.”

“It was in his capacity as a senator, for communications that involved the committee that I was a member of,” Mr. Reed said.

In our podcast conversation, Mr. Harbaugh states:

 

“(Reed) did it as the university general counsel and that is illegal. Under the public records law, state officials cannot make public records requests as state officials…but Kevin apparently hadn’t read the law so he sent it from his university address as general counsel.”

 

Merriam-Webster defines “illegal” as “not according to or authorized by law.”

 

Again, I welcome Mr. Reed’s response and will gladly read it into the podcast if one is provided Monday by 4 p.m. CST.

 

Many thanks,

 

Daniel Libit
The Intercollegiate
(202) 747-4652 cell
dlibit@theintercollegiate.com

<image003.jpg>

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On Jan 10, 2020, at 5:59 PM, Kay Jarvis <kdjarvis@uoregon.edu> wrote:

 

Hello, Daniel.

 

Kevin is out of the office today for health reasons, and is therefore unable to reply.  You probably already know this, but in case not, in Oregon it is defamation per se to publish a statement that falsely accuses a person of doing something illegal.  In this case, no illegal action occurred.  It is simply not illegal for a person to make a public records request for a government employee’s public records, which is all Kevin did when he requested the public records that Bill Harbaugh generated in his capacity as a UO Senate President.  If Bill really believed Kevin did something illegal, he should have reported that long ago.  To date, we have no record of such a report.  Further, the UO has multiple examples of Bill making public records requests wherein he includes a signature block that identifies himself as a UO employee.  Again, doing that is not illegal. We would be happy to provide you with additional information when Kevin is back in the office next week.

 

Thank you for reaching out,

Kay

 

 

Kay Jarvis

Director of Public Affairs and Issues Management

 

Office: 541.346.5558

Mobile: 541.285.8640

www: around.oregon.edu

 

 

 

From: Daniel Libit <dlibit@theintercollegiate.com>
Sent: Friday, January 10, 2020 10:22 AM
To: Kay Jarvis <kdjarvis@uoregon.edu>
Cc: General Counsel Office <gcounsel@uoregon.edu>
Subject: Re: Request for comment for Kevin Reed

 

Hi Kay,

 

I wanted to loop you in, but any comment should come from Kevin directly, not the university. Kevin tried to FOIA Bill Harbaugh’s emails a couple years ago. Here’s a link to a Register Guard story providing the background of the matter:

 

http://registerguard.com/rg/news/local/35254616-75/university-of-oregon-requests-records-of-professors-exchanges-with-press.html.csp#

 

On the podcast, Bill told me that Kevin’s attempt to FOIA Bill’s emails, in Kevin’s capacity as the university’s general counsel, violated the state’s public records law.

 

Thanks,

 

Daniel Libit
The Intercollegiate
(202) 747-4652 cell
dlibit@theintercollegiate.com

<image002.jpg>

Visit us at www.theintercollegiate.com
Follow us on Twitter or Facebook

 

On Jan 10, 2020, at 11:26 AM, Kay Jarvis <kdjarvis@uoregon.edu> wrote:

 

Good morning, Daniel.

 

Thank you for copying me as my team typically handles media inquiries. Can you offer some more information on your piece? It would be helpful to know a bit more about the “incident,” even if it’s a time frame. There are stories published every day with the university in them!

 

Thank you!

Kay

 

 

Kay Jarvis

Director of Public Affairs and Issues Management

 

Office: 541.346.5558

Mobile: 541.285.8640

www: around.oregon.edu

 

 

 

From: Daniel Libit <dlibit@theintercollegiate.com>
Sent: Friday, January 10, 2020 9:14 AM
To: General Counsel Office <gcounsel@uoregon.edu>
Cc: Kay Jarvis <kdjarvis@uoregon.edu>
Subject: Request for comment for Kevin Reed

 

To Whom it May Concern:

 

I am a journalist who runs The Intercollegiate and hosts its weekly college-sports related podcast  On our upcoming episode, due to run this coming Tuesday, my guest is University of Oregon professor Bill Harbaugh. In the course of our conversation, Bill and I discuss an incident, previously reported by other news outlets, in which Kevin Reed attempted to FOIA Harbaugh’s email communications to journalists. In our conversation, Harbaugh described Reed’s public records endeavor, in his position as university counsel, to be “illegal.” I wanted to give Kevin an opportunity to respond on the record by COB today.

 

Thank you,

 

Daniel Libit
The Intercollegiate
(202) 747-4652 cell
dlibit@theintercollegiate.com

<image002.jpg>

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6 Responses to Daniel Libit posts podcast with UOM, despite GC Kevin Reed threat

  1. Dog says:

    Be careful, the enrollment at OSU now includes all those that take an e-campus course and adds about 10K to the formal enrollment figures. This was a smart move at OSU to partner directly with e-campus and that could have served as a good model here,

    but wait, this the UO

    We don’t need no stinkin’ models …

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    • Fishwrapper says:

      For fall 2019, the e-campus undergrad number was reported as 13,051 out of a total undergrad enrollment of 31,719. The on-campus undergrad enrollment is 24,203; many of the numbers counted in e-campus enrollments are on-campus students who take online courses in addition to their in-person classes for schedule flexibility. On-campus numbers dipped by high double digits from the past year, while e-campus went a bit up.

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  2. Fishwrapper says:

    So I went online when you posted this to get the podcast and give it a listen. I figured it would be a one-off listen for me. Since I’m technologically challenged, the podcast still shows up in my feed, and a recent episode intrigued me – a “Heretics int he Temple” episode, this time including Eastern Washington University physics professor David Syphers. The long and short of it is that Syphers is on an ad-hoc faculty senate committee that is looking at the cost of intercollegiate athletics, and in the discussion, Syphers indicated that there was a comparison of enrollment data that corresponded with EWU’s national title in football. Briefly, it suggests that the notion that success in athletics corresponds to success in overall admissions recruiting is better described as a canard, despite the repetition over the years by numerous administrators in a manner suggesting that notion as an axiom. All that leads me to the question: has anyone looked at the enrollment rate at UO relative to success in the major sports, with football front and center?

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    • Dog says:

      yes this has been looked at and some studies have been “published” but I can not locate them (yet). The first evidence of the enrollment spike at the UO happened after the 1994 Cotton bowl, which was the first bowl experience for decades for the UO football team.

      But my overall impression is that the data doesn’t show anything that is clear when averaged over the last 20 years or so. There are other factors driving enrollment (including perceived collapse of the UC system, etc …)

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      • Fishwrapper says:

        If you look downstream, you’ll find a campus that’s had comparatively phenomenal enrollment growth over the last fifteen years that appears to not have a direct correlation to success in major sports. Yes, baseball at OSU now has three national plaques, and the women’s basketball program has improved, but those programs receive far less per-student investment than the football enterprise, which, itself, if one compares Oregon schools based on their D1 football success, is far less wonderful than Oregon. One wonders if the resources they poured into football over the years had been put into baseball and women’s hoops, would the Corvallis campus now be at 40 kilostudents?

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  3. Richard Bohloff says:

    Informative and newsworthy, thank you.

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