Monday, April 29, 2013

OSU officials drop proposed policy forcing faculty lawsuits for personnel records

Oklahoma State University won't be adopting the University of Oklahoma's policy of forcing faculty to sue for personnel records guaranteed to them by the state Open Records Act.
OSU officials dropped the proposed policy change on peer-review letters last week after the chairman of its governing board told them he opposed it because it would violate the Open Records Act.
Just like OU's current policy, the proposed change would have forced OSU faculty to sue their school to obtain un-redacted copies of 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 peer-review letters if they chose early in the process not to waive their right to them under the Open Records Act. (Reappointment, Promotion and Tenure Process for Ranked Faculty, 2.2(b)(7)(2006))
But the proposed change would have dropped the waiver option and provided 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 would have provided the faculty member with the original letters "only when required to do so by a legal proceeding."
OSU officials had wanted the new policy approved by the Oklahoma A&M Board of Regents on Friday. But Tuesday, OSU General Counsel Gary Clark told President Burns Hargis and Provost Robert Sternberg via email that regents Chairman Andy Lester "says that he would oppose the change … as violating the Open Records law."
"We need to pull the item from the agenda," Clark wrote.
Sternberg relayed that news to Faculty Council officers via email, adding, "It sounds like the new proposed procedure with redacted letters is dead.
"I will leave it to my successors to figure out how to move forward," said Sternberg, who is leaving OSU to become president of the University of Wyoming.
Lester's rejection of the change seemed to perplex Sternberg, in part because OU Provost Nancy L. Mergler had told Sternberg that OU has used the same policy for years.
"I thought that OU has used an analogous procedure for years with no problem, but perhaps I misunderstand what they do," Sternberg wrote.
No, he hadn't misunderstood. Under OU's policy, peer-review letters "solicited in confidence or sent with the expectation of confidentiality shall be deemed confidential and unavailable to the employee unless otherwise ordered by a court of law." (Access to Personnel File Policy, Faculty Handbook, 5.34.4)
Put another way by an OU official:
"The way I think Legal articulates our position is, we recognize that we have to give them up unredacted, but we won’t unless you sue us to get them," explained OU Associate Provost Gregory M. Heiser in an email that Mergler forwarded to Sternberg in October 2011.
Sternberg had asked Mergler whether OU's peer-review letters were open "or do you have a way around this?"
She told Sternberg that "twice in the past 16 years [OU] had to produce redacted letters when there was a faculty appeal of the tenure recommendation and the faculty member hired independent counsel."
However, Mergler also told Sternberg, "I am sure with the current tea party folks so intent on open records ……that we will be getting a more aggressive challenge sometime soon."
OU should expect challenges to a policy that forces faculty members to sue for their personnel records.
Such a policy violates the state Open Records Act, as I explained to the Faculty Council, with Hargis and Sternberg attending, in March 2012 and reiterated in The Daily O'Collegian in February.
The Open Records Act grants each public employee "a right of access to his own personnel file." (OKLA. STAT. tit. 51, § 24A.7(C))
A 1986 Oklahoma attorney general opinion also supports the right of faculty members to obtain un-redacted peer-review letters. (1986 OK AG 39)
The opinion said personnel investigations are part of personnel files and that Oklahoma State Bureau of Investigation employees were entitled to review any materials gathered in the background investigation of them. (¶ 3)
Moreover, OSBI could not withhold the names of confidential informants who had provided information for criminal background checks of employees unless the informant objected and then the agency determined on a case-by-case basis that releasing the name would damage the confidential informant. (¶ 16)
But OSU officials wanted to create – and OU has – a blanket policy of withholding the names of full professors at other universities who write peer-review letters for tenure and promotion decisions. Those authors – who OSU policy says "should be leading scholars in their disciplines" – would be hard-pressed to reasonably argue that they would be "damaged" by the disclosure of their identities to the OSU faculty members.
Not telling faculty that they have a right to the peer-review letters doesn't mean the right is nonexistent. It does, however, say quite a bit about the ethics and integrity of an institution's leaders.
Fortunately, Lester was willing to respect the statutory right of OSU faculty members to access their personnel files without having to sue the school.

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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