OSU president refuses to release Chesapeake Energy-related emails, raising questions about his compliance with university's email policies, state law

OSU President Burns Hargis won't release emails on his university account that are related to his job as a member of the Chesapeake Energy Board of Directors, with officials telling The Daily O'Collegian and The Wall Street Journal that the messages are private under the state Open Records Act.
 
But that refusal raises questions about Hargis' compliance with OSU policies (and state law) barring the use of the university's computer system for commercial purposes.
 
Hargis told The Daily O'Collegian that he didn't violate the policy. But as the newspaper pointed out today, Hargis' refusal to provide copies "makes verification impossible."
 
A government ethicist told the newspaper that not releasing the emails raises a "red flag" indicating a potential conflict of interest between Hargis' jobs as OSU president and as a Chesapeake director for which he was paid a little more than $560,000 in 2011.
 
"This is what I call serving two masters," said Judy Nadler, a senior fellow in government ethics at the Markkula Center for ethics at Santa Clara University in California.
 
In May, a reporter for The Wall Street Journal requested Hargis' emails related to Chesapeake Energy Corp., apparently hoping they would shed light on operations by the nation's second-largest natural gas producer.
 
Chesapeake Energy's business practices have been under scrutiny since Reuters reported in April that CEO Aubrey McClendon had taken out up to $1.1 billion in unreported loans by using his stake in each of the company's wells as collateral.
 
OSU officials denied the reporter's request, saying that none of the 758 emails involved "the transaction of public business, the expenditure of public funds or the administration of public property."
 
The Daily O'Collegian made the same request in September. Same response.
 
Users of OSU's email services are put on notice "that under the Oklahoma Open Records Act all records that are created by, received by, under the authority of, or coming into the custody, control, or possession of the University or University officials presumptively are public records.
 
"Such records include messages stored in an electronic or magnetic format. All e-mail communications, therefore, unless subject to a specific statutory privilege, are subject to production under the Oklahoma Open Records Act and, when relevant, to discovery in civil litigation." (Use of Electronic Mail (Revised) (2002))
 
But OSU officials point to a 2001 attorney general opinion that said an email between government employees making lunch plans – if such use is permitted by the agency – generally would not be considered a public record because it would not be "in connection with public business, spending public money or administering public property." (2001 OK AG 46, ¶ 5 n.2)
 
So the questions are whether OSU policies permit using university email for Chesapeake Energy business and whether Hargis did so.
 
"No" is the answer to the first question.
 
OSU policies limit the use of email to furthering "the teaching, research, service, and extension goals and mission of the University." (Use of Electronic Mail (Revised) (2002))
 
"The use of university computing systems for commercial purposes is strictly forbidden," OSU's Use of Electronic Mail policy states. "The sending of electronic mail, which is commercial in character, is a violation of this acceptable use policy.”
 
Another policy states the university's "computing facilities, services, and networks may not be used in connection with compensated outside work for the benefit of organizations unrelated to the University except in connection with scholarly pursuits (such as faculty publishing activities) in accordance with the University consulting policy or the policy governing Access by External Entities to University Technology Resources, or in a purely incidental way.
 
"State law generally prohibits the use of University computing and network facilities for personal gain or profit, and use of computing resources for unauthorized commercial purposes, unauthorized personal gain, or any illegal activities is prohibited." (Appropriate Computer Use (1997))
 
The answer to the second question -- whether Hargis violated the policies (and state law) -- isn't clear.
 
Hargis told The Daily O'Collegian that he normally conducts Chesapeake business on his personal Gmail account and that he cannot control the email sent to his OSU account.
 
But he also refused to disclose the content of his OSU emails related to Chesapeake.
 
"If I'm not going to release the emails, I'm probably not going to talk about what they say," Hargis told The Daily O'Collegian.
 
Well, if they're only the equivalent of Hargis making lunch plans with Chesapeake officials, he would be better served by releasing the records.
 
Otherwise, relying upon a loophole in the Open Records Act raises suspicions that Hargis doesn't want to reveal the business of a for-profit corporation that was conducted over a taxpayer-funded email system in violation of university policy and possibly state law.
 

 
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications
 
The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.