November 19, 2017

Faculty Rallies to Support University of Oregon Archivist

Knight Library, University of Oregon (photo credit: User: Akendall, via Wikimedia Commons)

Knight Library, University of Oregon (photo credit: User: Akendall, via Wikimedia Commons)

[This article has been updated to reflect the input of UO dean of libraries Adriene Lim.]

More than 100 faculty members at the University of Oregon (UO) have signed a letter to the university administration supporting archivist James Fox, who has been informed that his contract will not be renewed in June. Fox, along with digital archivist Kira Homo, is at the center of a controversy involving the release of some 22,000 pages of unfiltered UO presidential archives to professor of economics Bill Harbaugh in November 2014.

The letter reads, in part:

We write as members of the OU community to protest the firing of James Fox and to express our entire support of his work for the University over many years.

James Fox has been an extraordinary member of the University of Oregon community and the state, and we are stunned by the university’s treatment of this valued colleague.

The material, part of the Special Collections and University Archives at Knight Library, located on UO’s campus in Eugene, included emails, reports, and other papers relating to the administrations of four former UO presidents: the late Dave Frohnmayer, who retired in 2009; Richard Lariviere, who was fired in 2011; Bob Berdahl, who served as interim president in 2012; and Michael Gottfredson, who resigned in August 2014. UO administration has publicly stated in a number of university documents that the material was released without oversight for compliance with state and federal privacy laws.

REQUEST AND RESPONSE

Harbaugh has taught economics at UO since 1995 and chairs the budget and finance committee of United Academics, the UO faculty union. He also writes UO Matters, which he calls “kind of a muckraking blog,” about the university, and often consults public records about the school’s finances, athletics, and governance. In November Harbaugh emailed the UO special collections department with a request to access the presidential archives.

As Harbaugh described the transaction to LJ, an archivist instructed him to provide a USB key for transfer of the material, advising that he “should understand that there may be confidential documents in there that are protected by FERPA [the Family Educational Rights and Privacy Act] or some other law, and you’re responsible for not releasing those documents. They said something to the effect that this is the standard release that people using the archives agree to because there are tens of thousands of pages of documents and it’s impossible to go through them all individually, but we understand that we have an obligation to make them available to people.” As a public institution, Oregon law requires that UO release information upon request.

Two weeks later special collections returned Harbaugh’s USB key, loaded with a couple of gigabytes’ worth of documents. He found what he was looking for: a 2012 memo from UO’s then–general counsel sent to Berdahl and several others that proposed dissolving the university senate—what Harbaugh described as “an extremely radical move, like a coup d’état,” although the plan was never carried out.

Harbaugh posted the memo, along with his own commentary, on UO Matters on January 4.

A DATA BREACH

In January Harbaugh received a letter from Doug Blandy, senior vice provost for academic affairs. The letter stated that the material was provided to him in violation of state and federal law, and demanded that he return the USB drive to UO dean of libraries Adriene Lim, destroy any and all copies he had made, and remove any documents that he had posted online. “I was surprised at that because I always assumed that library circulation records were confidential,” Harbaugh told LJ. He added that he did not know how, or whether, Lim consulted the archivists.

“The incident itself,” Lim later explained to LJ, “was more of a data breach, because we have policies and procedures regarding the breach of FERPA-protected personal information…. What I really had to do was follow university policies.” By then, Bill Harbaugh had had the records in his possession for six weeks.

At that time Lim consulted with the American Library Association’s Office of Intellectual Freedom (ALA OIF). In a letter to UO administration dated February 17, director of ALA OIF Barbara Jones stated, “we believe it was ethically appropriate for Dr. Lim to report a data breach and to focus only on the breach itself and the alarming amount of confidential information that was leaked.” Lim, who was named UO dean of libraries in June 2014, was previously dean of libraries at Oakland University in Michigan.

Lim explained, “This is not about archives. It is about records management. The university libraries handle records management, and what that means is often in our possession are non-permanent confidential, private, FERPA-protected, HIPAA-protected records.”

All of the university’s records, Lim said, are subject to various requirements relating to their maintenance and disclosure. They fall into two categories: non-permanent records, which are subject to retention and destruction according to the university’s records retention schedule, and permanent records, which are accessioned and housed in the university’s archives. “What was released to Bill Harbaugh,” Lim told LJ, “was [estimated at] around 90 or more percent non-permanent, non-archival records.”

On January 20, UO interim president Scott Coltrane sent an email to colleagues announcing that “a significant number of archived records from the President’s Office have been unlawfully released. These records contain confidential information about faculty, staff, and students, but our current understanding is that no social security numbers, financial information, or medical records were shared.”

Harbaugh was taken aback at the wording—“nobody had done anything even remotely unlawful here,” he said. He felt, he said, that the UO archivists were doing their job by providing requested information, and he was exercising his right to access records from a public institution. He consulted several lawyers, who advised him, he told LJ, “If it goes to court, you’re going to win. But you’re going to spend a lot of money on lawyers. So I backed down, and I gave them back the USB key and I deleted the documents from my computer, and I hoped that would be the end of it.”

LEAVING A LEGACY

Coltrane’s email concluded, “We are committed to taking steps to mitigate the potential injury associated with this situation.” At that time, Fox and archivist Kira Homo were placed on administrative leave pending investigation into the documents’ release. In a statement on March 25, UO spokesman Tobin Klinger announced, “The employees related to this incident will not be returning to their positions in this library.”

Fox, previously a non–tenure track associate professor in UO’s history department and the university’s Robert D. Clark Honors College, had been the director of UO special collections and university archives since 1999. He worked with such noted collections as the papers of authors Ursula K. Le Guin and Ken Kesey. “Under James Fox’s leadership,” the letter of support noted, “Special Collections and University Archives—recognizing the lack of a viable records management program at the UO—created the first position in records management on this campus, located it in the library, and raised funds for it.”

Homo was a UO employee for the past eight years, and had served as the special collections digital archivist since 2010. She was also secretary of United Academics.

Fox, said UO professor emerita of English and environmental studies Louise Westling, has not been permitted access to campus—including his office—without supervision. “This seems to me a humiliating…way to treat somebody,” Westling told LJ. “They never charged him with any crime. He didn’t commit any crime.” Homo, according to a statement on United Academics’ website, resigned in March to pursue a graduate degree full-time.

Harbaugh has been vocal about the fact that he believes Fox is being unfairly targeted for the office of the president’s lack of oversight when depositing the documents in the archives. “They’re trying to find a scapegoat,” he told LJ, “and I’m not that scapegoat because I’ve got tenure, and I met with their investigator and explained what happened and it’s clear I didn’t do anything wrong.”

Westling pointed out, as well, that a March 24 report issued by UO estimated that processing the archives for public release would take approximately 500 staff hours. “That’s a huge contrast, wouldn’t you say? Between the claim that [Fox] should have done it and then their acknowledgment of what it would take.” She also noted that Fox recently had an independent evaluation of his work conducted from outside the university and “it just came out glowing. There was not one criticism in it.”

The record processing, said Lim, has been in progress since the documents’ return. “We’re going to be reviewing them and getting them…to all those who want to look them over,” she told LJ. “The permanent records will be returned to the libraries for processing and storage in the university archives…. But again, I would say less than ten percent [of the documents] are actually archival records.”

On the Society of American Archivists’ (SAA) blog Off the Record, SAA president Kathleen Roe stated, “Although SAA is not in a position to comment responsibly on this specific situation, it raises real concerns for those of us who manage access to records, especially in the digital age. We are engaged in conversations about what SAA might do to support education and training in navigating the challenges associated with access, restricted records, attorney-client privilege, redaction, and related issues and practices.”

Both Westling and her husband, professor emeritus of English George Wickes, signed the letter in support of Fox, she told LJ. “We have devoted our professional lives to this university and are very distressed that such a thing could happen here. It has not been normal for distinguished faculty and librarians to be treated so shabbily.”

The archivists, Harbaugh added, were simply doing their jobs. “The fact that they have apparently fired [Fox]…is completely baffling to me,” he said. “From what I can tell this guy had absolutely nothing to do with this. I didn’t even know who he was until I looked him up in the list of archivists.”

We respect the faculty’s right to support their colleague,” Lim said in a statement to LJ. “Mr. Fox’s contract was not renewed, however, for reasons unrelated to his work with faculty or special collections. Given that this is a personnel matter, we are not in a position to comment further.”

She later added, “We know, as librarians, records managers, and archivists, that openness, equitable access, and preservation of the historical record go hand in hand with a professional commitment to maintain the confidence and trust that people have in our ethical stewardship of private and confidential information. If we do not maintain our constituents’ trust, we know that people will not help us build and maintain the archives and collections that enrich our communities’ lives, scholarship, and research. We’re committed in the UO libraries to providing open and equitable access to the university’s historical permanent records…. We wish to assure everyone, and all interested parties, that when the appropriate processing is done the documents that should become part of the archives will be added to the university archives.”

Lisa Peet About Lisa Peet

Lisa Peet is Associate Editor, News for Library Journal.

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Comments

  1. Susan Storch says:

    In our democracy, public records are meant to be scrutinized. It is our right as citizens to ensure that government institutions are accountable. The University of Oregon is a public institution. The Archives can’t make a citizen wait based on the records being unprocessed. I was the archivist at the University of Oregon for 5 years. There was, and probably still is, insufficient staff and resources to process everything. Nearly every institution has the same issue. Public records law does not recognize that situation as a reason to refuse reasonable access to records as long as privacy law is enforced.

  2. Dear Ms. Peet and LJ readers:

    I have several comments to make about this article. As a disclaimer, I am a member of the UO Libraries administrative team and have been assisting Dean Adriene Lim and the Special Collections and University Archives staff in response to this incident. I offer these comments with the sole purpose of providing additional facts about the archives and records management program, the nature of the documents released in the incident, and the use policies and circumstances related to the release.

    As Dean Adriene Lim said, [UO public records] “…fall into two categories: non-permanent records, which are subject to retention and destruction according to the university’s records retention schedule, and permanent records, which are accessioned and housed in the university’s archives.”

    In each category, records are further designated as *exempt* from public disclosure under Oregon’s Public Records Act (ORS.192.505), or *non-exempt* and therefore subject to disclosure. The Public Records Act requires separation of exempt from non-exempt records prior to making the non-exempt material available for examination.

    In most (but not all) cases, permanent archival records are non-exempt. After transfer to the Archives, accessioning, and processing, archival records are available to researchers without need for further review or redaction.

    Non-permanent records are not accessioned by the University Archives. As part of its records management program, the library offers a limited long-term storage program for inactive non-permanent records with lengthy retention periods, but this is a strictly custodial role. Ownership is retained by the originating department, and stored records are accessible only to authorized staff from the originating department or to the Public Records Office in response to research requests. The library is not authorized to determine if or when to release these records.

    Approximately11GB of data with 50,000 records (not 22,000 as originally estimated) were released to Mr. Harbaugh. As Ms. Lim indicates, at least 90% of these records are non-permanent. Mr. Harbaugh was provided with the following disclaimer and statement of restrictions on use:

    Archival material may contain materials with sensitive or confidential information that is protected under federal and/or state right to privacy laws and other regulations.
    Researchers are advised that the disclosure of certain information pertaining to identifiable living individuals represented in this collection without the consent of those individuals may have legal ramifications (e.g. a cause of action for invasion of privacy may arise if facts concerning an individual’s private life are published that would be deemed highly offensive to a reasonable person) for which the University of Oregon assumes no responsibility.
    If a researcher finds sensitive personal information in a collection, please bring it to the attention of the reading room staff.

    The release included non-redacted exempt records in several categories – protected student information, medical information, faculty personnel records, and other private, confidential, and privileged correspondence. Mr. Harbaugh acknowledges receiving these terms and restrictions, and that he assumed “[responsibility] for not releasing those documents [with sensitive/confidential information].” What Mr. Harbaugh does not acknowledge is his additional responsibility to bring [sensitive personal information] to the attention of the reading room staff when it is discovered.

    The university is now expediting review and processing of the records included in the release, and will make the records available to the public when the process is complete.

    Andrew R. Bonamici
    Associate Dean for Media & Instructional Services
    University of Oregon Libraries

  3. Janet Crum says:

    It seems like archives personnel are damned if they do and damned if they don’t. There aren’t sufficient resources to process records, including separating exempt and non-exempt materials, but they (or someone at the university) is legally required to respond appropriately to public records requests. So either you violate the law by releasing exempt material, or you violate the law by not releasing non-exempt material. Compounding that is the sheer volume of digital records, in which exempt and non-exempt material is co-mingled. Our public institutions–and their staff–are in an impossible situation without adequate resources for a comprehensive records management program. Firing seems like an extreme response to what seems like the nearly inevitable result of this impossible situation.

  4. Jackie Dooley says:

    I look forward to hearing from LJ and other sources over time about how the U of O administration tangibly addresses the need to provide sufficient staff for responsible records management on into the future. It’s clear from various published articles that the library put real effort into making this case to the administration in a variety of ways over the years, with zero success.

    As a friend of mine who has lengthy experience managing digital records once told me: it takes a crisis before the issues are taken seriously and addressed. The U of O is the new poster child for this problem.

  5. Eira Tansey says:

    I find it bizarre that the ALA’s Office of Intellectual Freedom was consulted on this issue, but not the Society of American Archivists or ARMA (the international organization for records managers). Archivists and records managers have a distinct set of professional codes of ethics from librarians, and I am disturbed neither appear to have been consulted in this matter.

  6. I am the UO professor who obtained these digital presidential archives. The updated story quotes ALA OIF Director Barbara Jones:

    In a letter to UO administration dated February 17, director of ALA OIF Barbara Jones stated, “we believe it was ethically appropriate for Dr. Lim to report a data breach and to focus only on the breach itself and the alarming amount of confidential information that was leaked.”

    “Leaked” has some negative connotations these days. These documents were not leaked. I got them by making a request by email, from my official U of O email address, to the UO Special Collections and Archives reference desk, and then agreeing to the usual boilerplate language about confidentiality.

    Ms Jones never contacted me or made any effort to learn my side of this story before sending this letter supporting Ms Lim’s actions and calling this a leak. In fact I still haven’t seen the full text of the letter – Library Dean Lim has refused to release it and other relevant documents unless I pay $210 in public records fees: http://uomatters.com/2015/03/library-dean-adriene-lim-wants-210-63-to-produce-archives-docs.html

    The ALA ethics code is very explicit about not releasing circulation records except under a court order, and only after the librarian has verified that order. The policy could not possibly be clearer:

    2. Advise all librarians and library employees that such records shall not be made available to any agency of state, federal, or local government except pursuant to such process, order or subpoena as may be authorized under the authority of, and pursuant to, federal, state, or local law relating to civil, criminal, or administrative discovery procedures or legislative investigative power. (http://www.ala.org/advocacy/intfreedom/statementspols/otherpolicies/policyconfidentiality)

    However, the ALA website also notes that the ALA does not do ethics investigations or otherwise enforce its code of ethics. It gives some good explanations and history for this policy. Perhaps this inadequately researched and hasty letter from ALA Director Jones should be added to the list of examples, here: http://www.ala.org/advocacy/proethics/explanatory/enforcementfaq

    Professor Bill Harbaugh
    UO Economics

  7. Andrew Bonamici says:

    @eira : Although it wasn’t reported in this story, be assured that the UO Libraries closely examined SAA, ARMA, and ALA Codes of Ethics in responding to this incident. I agree that the SAA and ARMA codes are much more relevant to this situation than the ALA code.

    Also, the SAA quickly appointed an ad hoc incident team to monitor the situation at UO and has been in contact with UO Libraries administration and University Archives staff. To date, our ability to share information with the SAA team has been constrained by the obligation to protect the confidentiality of university personnel matters.

    • Andrew Bonamici says:

      follow-up for @eira and @billharbaugh in re the relevance of the ALA’s code of ethics and confidentiality of circulation records:
      Most LJ readers will understand that institutional records and unique archival holdings do not circulate, and researchers using these primary sources are subject to different terms of use than borrowers of circulating collections of published materials. The UO Libraries terms for use for archival materials are available here: http://library.uoregon.edu/special-collections/use.
      Furthermore, the vast majority of the records released in this incident are not library collections or permanent archival records at all, but non-permanent records, many containing legally protected, sensitive data. As Ms. Lim points out in the interview above, the university’s information security and student records policies require immediate reporting of known or suspected breaches of privacy.

    • Regarding UO Associate Library Dean Andrew Bonamici’s statement that

      “The UO Libraries terms for use for archival materials are available here: http://library.uoregon.edu/special-collections/use.”

      I want to point out that this page regarding terms of use was edited rather significantly *after* I was given the digital UO Presidential Archives and *after* UO’s attorneys began their investigation.

      Presumably the UO Libraries can change these terms of use at their discretion, but given this situation I think Mr. Bonamici should be clear as to whether or not these terms of use, and/or the explanations of them given to library patrons, were available before I requested and received the presidential archives, or were changed retroactively. I think the change was made retroactively.

  8. There seems to be a lot of smoke coming out of the UO administration on this issue.

    Since Coltrane’s email states, “our current understanding is that no social security numbers, financial information, or medical records were shared,” it is doubtful any laws were broken in the of release records to a known researcher governed by a standard confidentiality agreement. It is more likely that there are a lot more embarrassing documents showing a pattern of questionable activity.

    If you want a second rate institution, just keep the critics silenced and follow the “party line.”

    (I have no relationships with any parties involved in this sad situation.)