EDITORIAL: ‘Shame on their lawyers’

IU’s motto is lux et veritas — light and truth. But as a public university, IU’s multiple violations of public access laws, delays and denials fly in the face of its motto’s commitment to transparency.

The Indiana Daily Student requests far more records from IU than any other single news outlet or company, according to IU’s own data. We request records to make our stories more fair, more factual, more nuanced and more interesting. We want to believe the university sees us as partners in the pursuit of light and truth.

Despite our newsroom’s best efforts, we can’t get any evidence that they engage with us in good faith. The anecdotal evidence we have points in the opposite direction.

At the IDS currently, there are several reporters waiting on records they requested months ago, some of which they have never heard back about other than automated responses saying the request was received. One recently filed a complaint with public access counselor Luke Britt, who has already determined IU violated public access laws multiple times this academic year.

Earlier this year, IU argued that it wasn’t obligated to determine whether a student code of conduct violation — sexual assault — falls under the Family Educational Rights and Privacy Act’s category of a “crime of violence” when an IDS reporter requested a student’s disciplinary records. Also this academic year, IU approved a contract worth $500,000 of public university funds to former IU President Michael McRobbie without a public meeting, which was in violation of the Open Door Law.

IU spokesperson Chuck Carney said in an email that IU has answered thousands of public records requests and dozens of public access counselor complaints, with the majority upholding IU’s responses.

“IU remains committed to complying with the Indiana Access to Public Records Act and Open Door Law,” Carney wrote.

Britt said anecdotally, agencies tend to defer to his advisory opinions, and IU accounts for just a few complaints every year.

But compliance with the letter of the law doesn’t mean transparency or timeliness.

What if we could determine, quantitatively, whether IU treats different classes of requesters differently? And not just that — what if we could calculate average response times, or quantify whether some topics are harder to get your hands on regardless of what type of requester you are? That’s what we were originally planning to do — write a data-driven news story.

We can’t, yet, because IU doesn’t track the status of requests in a public records log. But here’s how we tried.

Many public agencies maintain a document called a case log or public records log, which catalogs the details of all the requests the agency receives and when and how they complete that request.

On March 1, a month after requesting IU’s public records log, we received a document generated from IU’s public records portal and cataloging every records request received since 2015. Because this was the document responsive to our request, we believed it was IU’s public records log. Carney said it isn’t.

Regardless of what it is, it can’t be used to evaluate IU’s record quantitatively because it contained no column indicating when or whether requests had been fulfilled.

Public agencies have no obligation to keep such logs. But other state agencies which have produced public records logs — including the Indiana State Police, Court Services and Offender Supervision Agency and the Indiana Family and Social Services Administration — include columns indicating when and how requests were completed. Some other public universities, including the University of Oregon and the University of Iowa, maintain records logs on public-facing, frequently updated webpages.

To submit an open records request to IU, a requester fills out a form on the Office of the Vice President and General Counsel website. That request appears in the general counsel’s email inbox and Amelia Marvel, assistant general counsel, is the attorney who monitors that email account.

Marvel pulled the document she provided to us from that system, which doesn’t track the completion of requests.

Marvel said she maintains her own personal document to track requests, and Carney said “an attorney” maintains a personal log to track requests. When we asked on a phone call about our original request if she could provide that document in response to this request or a new request, she said it would be privileged, or exempt from disclosure.

The IDS is not suggesting that IU does not properly manage its records requests on an internal, organizational level. But we find it strange that IU doesn’t maintain this information in the kind of log that other agencies have made available when they received a request for one. It is strange that in response to our request for IU’s public records log or case log, Marvel provided a document that is not a case log and did not correct us when we referenced it as such in communications with her. It is strange that when we repeatedly clarified that we were primarily interested in tracking information and not responsive records to specific requests in the document, Marvel didn’t provide her log or even mention that it existed until we discussed the request on the phone on April 18, even though it seems to contain exactly the information we requested. It is unclear to us why a document concerning public records maintained by a public employee would be privileged.

Carney said IU can access the date requests were fulfilled via the email from which it responds to public records requests.

“The Indiana APRA requires that we provide responsive public records, not information about what public records are requested and fulfilled. IU is fulfilling its obligations to record requests, which consists of more than 700 requests a year. The complexity of requests, consideration of state and federal laws that concern student and staff privacy, and myriad other factors may prolong fulfillment of a request,” Carney wrote.

Illustration By Lawren Elderkin; Photo Courtesy of IU Archives

Because IU could or would not provide data on completion of requests, the IDS narrowed its scope to requests in the log related to sexual misconduct, disciplinary records and Title IX, which encompassed 170 of the over 3,000 requests to the university. We narrowed the records based on keywords, so this may exclude related requests that don’t use the specific words we used as filters.

On March 22, we requested to see responses to those 170 requests so we could hand-code a column indicating when the requests were completed and to what extent the requested records were provided. We followed up several times between then and April 18, when Marvel called to discuss the request.

As of publication, over three months after the initial request for the log and a month after the narrowed request, none of those records had been provided.

Here’s what we do know. Our experience requesting records from IU is shaped by two factors: The Family Educational Rights and Privacy Act, and the fact that we are student journalists.

FERPA prevents the release of student academic and disciplinary records except in the case of a violent crime or non-forcible sexual offense. As an educational institution, many IU records are subject to FERPA — but IU stretches that connection to records that have no meaningful connection to a student’s education.

“In many ways, FERPA is just this all-purpose excuse for a school to deny access to any record that they simply want to deny access to. And all of a sudden, that magically transforms into some sort of education record,” Mike Hiestand, senior legal counsel at the Student Press Law Center, said.

Earlier this year, the IDS published an investigation titled “Dissonance in Due Process.” The investigation revealed IU’s mishandling of sexual assault cases in the Jacobs School of Music. Student Chris Parker was found responsible of sexual assault by IU’s Title IX hearing process when he was a freshman. Parker then violated his suspension, meaning he shouldn’t have been allowed to return to IU or that he should have a police record. He was allowed to return, and he doesn’t have a police record.

While reporting that story, IDS reporter Cate Charron requested Parker’s disciplinary records. Her request was denied. In denying Charron the records, IU argued it wasn’t obligated to determine whether a student code of conduct violation — sexual assault — falls under FERPA’s definition of a violent crime.

“That’s absolutely ludicrous,” Hiestand said of that argument. “Shame on their lawyers.”

The public access counselor determined IU had violated APRA in denying Charron these records, calling the result “absurd.” IU still hasn’t released the records, or any records in connection with several other of Charron’s requests related to this story.

The second factor limiting our access to records is that we are students. Hiestand said universities know they can try to run out the clock.

“Students come and students go, and they know that if they can outwait them, oftentimes the request will go away,” Hiestand said.

Carney denied that IU treats student journalists differently than other requesters. But the idea that universities hold out on student requesters — a main source of higher education reporting — is conventional wisdom among student journalists and our advocates.

When we narrowed our request, we chose to focus on sexual misconduct and disciplinary records because getting university records related to sexual misconduct has been difficult nationwide for decades.

Hiestand said since the early 1990s, schools nationwide have fought hard to avoid releasing records related to Title IX and argued that even campus police records were exempt from disclosure due to FERPA — making the claim that somehow these were educational records or student disciplinary records.

“They’ve been very successful in setting up these internal judiciary systems that function as black holes,” Hiestand said, and student journalists around the country have played an important role in getting some of this information released.