William Harbaugh, a professor at the U. of Oregon, is the subject of an uncommon records request by the university’s general counsel.Glen Waddell
It is not often that the top lawyer at a university files an open-records request for a professor’s emails. As uncommon as that is, it gets stranger when the office charged with fulfilling the request is supervised by the person who filed it. And the cherry on top? The request is necessary, the lawyer says, because a university’s Transparency Committee is not, itself, being transparent.
That’s the situation playing out at the University of Oregon, and it’s raising some alarms over privacy, conflicts of interest, and academic freedom.
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William Harbaugh, a professor at the U. of Oregon, is the subject of an uncommon records request by the university’s general counsel.Glen Waddell
It is not often that the top lawyer at a university files an open-records request for a professor’s emails. As uncommon as that is, it gets stranger when the office charged with fulfilling the request is supervised by the person who filed it. And the cherry on top? The request is necessary, the lawyer says, because a university’s Transparency Committee is not, itself, being transparent.
That’s the situation playing out at the University of Oregon, and it’s raising some alarms over privacy, conflicts of interest, and academic freedom.
In late January, Kevin Reed, Oregon’s vice president and general counsel, filed a public-records request for email correspondence from William T. Harbaugh, an economics professor and president of the University of Oregon Senate. The request concerns the Senate’s Transparency Committee — including Mr. Harbaugh’s correspondence with the media (The Chronicle, for one). Both men are members of the committee, with Mr. Harbaugh serving as the group’s president, while Mr. Reed is the committee’s ex-officio member from the public-records office.
How Did We Get Here?
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.
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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.
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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.
“I would not ask a faculty member for all of his communications as a faculty member,” said Mr. Reed, stressing that he requested only emails Mr. Harbaugh sent in his capacity as president of the senate and as a member of the Transparency Committee.
According to the university public-records office’s request log, Mr. Reed requested “all communication” over the past year between Mr. Harbaugh and other committee members or the media “concerning or mentioning the committee.”
Seeking clarification, Mr. Harbaugh emailed Mr. Reed on February 3 to inquire whether his request included communications from his private email accounts or text messages from his phone. Mr. Reed responded that it did.
Mr. Harbaugh submitted the public records to Mr. Reed and the public-records office on February 6.
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An Unusual Request
Mr. Reed’s request, while unusual, would presumably be covered by Oregon’s public-records law due to the law’s broad nature, according to Carrie Leonetti, an associate professor at the University of Oregon School of Law.
If Mr. Harbaugh is conducting state business, then individual text messages, even on a private phone, are covered by the public-records request, Ms. Leonetti said. And in most cases, more so than the federal Freedom of Information Act, the public-records law in Oregon tends to err on the side of disclosure.
“There’s nothing I can think of that is covered by FOIA that is not covered more broadly by Oregon’s public-records law.”
I would not ask a faculty member for all of his communications as a faculty member.
But for professors, many of whom work closely with the public, it’s difficult to tell when they are on or off the clock. “When he’s emailing reporters out of his private account, is he doing the work of the state?” Ms. Leonetti asked.
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The broad nature of Oregon’s law does not preclude that a request filed to the office one supervises is inappropriate. Ultimately, it would be up to a court to decide, Ms. Leonetti said.
According to faculty members, the long-term ramifications of Mr. Reed’s request could be more severe.
“The more I think about it, the more outrageous it is,” Mr. Harbaugh said, calling the request an assault on academic freedom. “If faculty know that the administration can look at their emails at any time, it’s going to have a chilling effect on discussions.”
Michael Dreiling, a sociology professor and president of the United Academics of the University of Oregon, the union representing more than a thousand teaching and research faculty members at the university, agrees.
“I was actually shocked by it,” Mr. Dreiling said. “There were a lot of other options Counsel Reed could have taken to get the information he was seeking.”
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If this was not a tenured, full professor, I’m not sure his employment would be secure.
Further, Mr. Reed’s position, as both general counsel and vice president, gives him the authority of the senior leadership of the university. That, according to Mr. Dreiling, makes it hard not to view the situation as being personal.
Mr. Reed, however, said that he did not file the public-records request out of a personal grievance but instead to make sure he received all communication from Mr. Harbaugh. Mr. Reed also said that Mr. Harbaugh’s position, as University of Oregon Senate president, makes him a university official.
“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.
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Mr. Dreiling does not think it’s that simple.
“If this was not a tenured, full professor,” Mr. Dreiling said, “I’m not sure his employment would be secure.”
Public institutions have made strides over the last century in protecting and creating spaces for public expression and free speech, Mr. Dreiling said. And that those spaces may be eroded by those in power worries him the most.
“We don’t need authorities within our universities compromising that bedrock,” he said. “We need them to bolster it and stand by it.”
Correction (2/15/2017, 12:48 p.m.): This article originally spelled the name of an Oregon faculty member inconsistently. He is Michael Dreiling, not Dreisling. The article has been updated to reflect this correction.
Adam Harris, a staff writer at The Atlantic, was previously a reporter at The Chronicle of Higher Education and covered federal education policy and historically Black colleges and universities. He also worked at ProPublica.