Monday, February 11, 2013

Proposed OSU policy would force faculty lawsuits for personnel documents guaranteed by Open Records Act

A proposed policy change would force Oklahoma State University faculty to sue the school to obtain un-redacted copies of certain personnel records even though they are entitled to the complete documents by the Open Records Act.
At issue is faculty member access to original peer-review letters, written by professors at other universities, that OSU officials use in deciding whether to grant tenure and promotions to faculty.
Under OSU's current policy, faculty members may obtain the original letters if they chose not to waive their right to them under the Open Records Act.
But the proposed change would drop the waiver option and provide faculty members with copies of their letters only after each "external reviewer's name, institutional affiliation and relationship with the candidate are redacted."
"The University will provide the candidate with copies of the original external letters, which reveal the identities of the letter writers, only when required to do so by a legal proceeding," the RTP Task Force recommended in November.
(I note that in lieu of an expensive lawsuit, faculty would be entitled under the Open Records Act to file a criminal complaint against the individual university official refusing to provide a record in violation of the statute. The maximum punishment is a $500 fine and one year in the county jail.)
The Faculty Council will consider the proposal on Tuesday. The Board of Regents would have the final say-so.
The impetus for change came in fall 2011 when OSU Provost Robert Sternberg began advocating a policy of keeping the entire peer-review letter from faculty. Some Faculty Council members consider the current proposal a compromise.
But it's one that flies in the face of the state Open Records Act, which grants each public employee "a right of access to his own personnel file." (OKLA. STAT. tit. 51, § 24A.7(C))
The right of faculty members to obtain the un-redacted peer-review letters also is supported by a 1986 Oklahoma attorney general opinion that said, "Personnel investigations such as background investigations are necessarily deemed a part of the personnel file." (1986 OK AG 39, ¶ 3)
The attorney general said employees of the Oklahoma State Bureau of Investigation were entitled to review as a part of their personnel files any materials gathered in the background investigation of them.
Moreover, OSBI could not withhold the names of confidential informants who had provided information for criminal background checks of its employees unless the informant objected and then the agency determined on a case-by-case basis that the release of that name would damage the confidential informant. (¶ 16)
Oklahoma attorney general opinions are binding upon state agencies such as OSU.
Yet, the RTP proposal would create a blanket policy of withholding the names of full professors at other universities who write peer-review letters for tenure and promotion decisions at OSU. And on a case-by-case basis, those authors – who the policy says "should be leading scholars in their disciplines" – would seem hard-pressed to reasonably argue that they would be "damaged" by the disclosure of their identities to the OSU faculty members.
Oklahoma's Supreme Court and attorneys general have emphasized repeatedly that "disclosure of information is to be favored over finding an exemption" and that an agency's policies and procedures "must be in the letter and spirit of the Open Records Act."
But OSU would violate those principles and state law by adopting a policy that requires faculty members to file a lawsuit (or a criminal complaint) to obtain records to which they are entitled.
Individual faculty members are free to waive their right to those un-redacted letters. However, the university may not take away that right from all faculty members or create barriers such as requiring lawsuits to obtain records guaranteed by statute.
I am asking that the Faculty Committee oppose the proposed policy change and respect the rights granted to their colleagues by state legislators.

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.

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