North Dakota Attorney General Says University System Broke Open Records Law - Higher Education
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North Dakota Attorney General Says University System Broke Open Records Law

by Dave Kolpack, Associated Press

FARGO, N.D. ― North Dakota University System officials were at fault in an open records dispute over deleted emails of North Dakota State University President Dean Bresciani, Attorney General Wayne Stenehjem said in a ruling released Friday.

The state Legislative Council, on behalf of an unnamed lawmaker or lawmakers, had asked to review Bresciani’s emails during a controversy involving former Chancellor Hamid Shirvani, whose contract was eventually bought out by the state Board of Higher Education.

Stenehjem said the university system violated open records laws when university system staff located and made a copy of more than 43,000 of the deleted emails but failed to provide them to the Legislative Council in a timely fashion.

Bresciani had denied accusations from the Legislative Council that the emails were intentionally deleted and said it was the result of an automatic purge function. Stenehjem said there’s no way of resolving that issue because the university system staff failed to use a backup system from Microsoft.

The university system “failed in its obligation and can now only provide this office with speculation” on when the emails were deleted, Stenehjem said.

Larry Skogen, the acting chancellor, said in a statement that “there is no evidence that Dr. Bresciani, or anyone else at NDSU, intentionally deleted emails after receiving an open records request.”

Skogen said he’s requiring the university system to fully comply with both the letter and spirit of the open records and open meetings laws while he’s interim chancellor. “We will set the standard for transparency and public accountability while I am Chancellor.”

The original request on April 29 had asked for Bresciani’s emails from Nov. 1, 2012, through May 1, 2013, that included several keywords, including the last names of former university system lawyer Pat Seaworth, former higher education board student representative Sydney Hull and board member Kari Reichert.

The university system staff located 43,604 emails in a recoverable items folder but did not immediately tell NDSU about them or make a reasonable effort to determine the date the emails were deleted, Stenehjem said. The emails were provided several weeks later, after the Legislative Council complained that NDSU was withholding documents.

“The North Dakota University System violated the law because it did not provide all the available records, and it did not provide them within a reasonable time,” Stenehjem said.

Stenehjem rejected a complaint by the Legislative Council that NDSU went too far in taking out information from the emails the school believed would violate privacy laws.

The dispute was the result of complaints by some lawmakers with what they believed to be efforts by some college presidents and others to discredit Shirvani, who was criticized by some student and faculty groups for his overbearing leadership style. Shirvani said he was hired to bump up graduation rates and make other improvements in higher education, and was just doing his job.

Republican Rep. Bob Skarphol, of Tioga, perhaps Shirvani’s most outspoken supporter in the Legislature, had said earlier he had made a request for Bresciani’s emails, along with other lawmakers. When contacted by The Associated Press Friday, he said he was driving in heavy traffic and didn’t have time to talk.

Republican Sen. Tony Grindberg, of Fargo, said Stenehjem’s ruling “closes a door that most expected to be closed.” Grindberg had pushed for a measure in the Senate to buy out Shirvani’s contract.

“I think the public has moved on from this,” Grindberg said.

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