North Dakota State working to avoid open records requests, lawmakers say

By Rob Port | Watchdog.org North Dakota Bureau

FARGO, N.D. — The North Dakota State Board of Higher Education has asked its 11 institutions to unify their email systems, but North Dakota State University President Dean Bresciani is fighting the move.

Some lawmakers argue Bresciani is trying to avoid an open records request.

In June, Interim University System Chancellor Larry Skogen gave Bresciani permission to move his institution’s emails to an NDSU-managed system until the board could review the matter.

NDSU and other system institutions now use email administered by the university system, but the platforms aren’t unified. The Board of Higher Education wants to unify the systems to make it easier for administrators and staff at different institutions to share calendars and other communication.

Each school manages its own email systems for students. NDSU has chosen to combine its administrative and staff email systems with the student system, instead of joining the unified system.

The school finished the move in July, but lawmakers say NDSU is dodging requests for emails, public record under North Dakota law.

‘Lois Lerner school of email management’

“Zero. None.”

That’s how many emails state Rep. Bob Martinson, a Republican from Bismarck, said he’s received two months after he filed a request through Legislative Council for NDSU emails pertaining to the takeover of Sanford Nursing College.

Watchdog reported in April the state Legislature is reviewing the deal, which will require appropriations. Bresciani told the board legislators didn’t need to be consulted on the transaction.

Martinson isn’t the only lawmaker having trouble getting public records from NDSU. Rep. Roscoe Streyle, a Republican from Minot, tells Watchdog he has waited more than a month after a request for NDSU emails.

Both Martinson and Streyle say transparency would only get worse if NDSU is allowed to keep its emails separate from the rest of the university system. Martinson compared Bresciani to an Internal Revenue Service official made infamous by a national controversy over missing emails.

“Either Dean Bresciani went to the Lois Lerner school of email management, or she went to the Dean Bresciani school, but either way they’re both honored graduates,” Martinson said.

‘Ugly past events’

NDSU has a spotty track record when it comes to providing requested emails.

In 2013, Bresciani and NDSU were accused of deleting tens of thousands of emails lawmakers wanted that pertained to controversial former University Chancellor Hamid Shirvani. Attorney General Wayne Stenehjem’s office investigated and concluded in an opinion that NDSU violated state open records laws. The part of the investigation into whether Bresciani or NDSU employees purposefully destroyed the emails was inconclusive.

Bresciani has claimed the university system accessing his emails was “an extreme and inappropriate invasion of my professional and personal privacy.” In a March 14 email to Skogen, Bresciani argues issues such as access, which he deems inappropriate, is why NDSU must operate its own system.

“I can’t imagine a worse time for System staff to argue that they should be running our email,” Bresciani wrote. “Given recent events, as well as the ugly past events — of just a few months ago (and I’ll throw in that some who were involved in the purposeful violation of our email privacy ARE STILL EMPLOYED AT THE SYSTEM OFFICE), I can’t imagine things ending in anything but terrible embarrassment for the system.”

Bresciani says his university’s status as a research institution necessitates a separate email system, although the University of North Dakota is also a research institution and plans to participate in the unified system.

‘The bad guy of email’

In a June 24 email thanking Skogen for allowing NDSU to move to its own system, Bresciani claimed the move “will also relieve the System IT staff of tasks like responding to the growing number of public records requests.”

NDSU shouldn’t be allowed to operate outside the unified system, Streyle said, and Bresciani’s track record for providing requested emails is why.

“One of the main reasons President Bresciani stated in his email to Chancellor Skogen about why NDSU needed to migrate and manage its own email was to more quickly respond to open records requests,” Streyle told Watchdog. “I can tell you from past and present experience when filing open records requests, it’s NDSU that can’t seem to produce the records in a timely manner, not the system office. I always receive NDUS system office requests in a timely manner.”

Martinson agreed.

“I’m a little surprised that NDSU is the bad guy of email, and they get a pass,” he said. “It’s kind of surprising. There’s a lot of discussion among legislators and the public who follow higher ed issues who wonder what the heck is going on. They said one of their reasons is to help the system office with all of the email request they’re getting, but NDSU is the one we’re not getting them from. They’re the problem.”

Martinson thinks NDSU destroyed the Shirvani emails despite Stenehjem’s inconclusive investigation. “There’s no doubt in my mind that those emails were deleted on purpose. The reason why NDSU wants their own system is so that they don’t have to respond to email requests.”

‘Concerns are not unfounded’

“I have not exempted NDSU from participation in a unified email system,” Skogen said via email when asked about his decision to allow NDSU to move to its own email system. “What I did do is asked Vice Chancellor (Lisa) Feldner to continue the process of consolidation. She tells me that 10 of the 11 institutions will be consolidated by December of this year, or later. Based on the Board’s direction on this issue, I’ve informed (President) Bresciani that we’ll have to address his concerns relative to privacy and security at that time.”

Skogen said responding to requests for records is a “legal requirement.”

“Whether controlled at the system-level or at an institution, response must meet those legal requirements,” he said.

In the meantime, Skogen said he’s asked Feldner and University System Chief of Staff Murray Sagsveen “to pursue answers” for Bresciani about security. “As the interim chancellor I simply cannot dismiss these concerns.”

POWER PLAY: University System Vice Chancellor Lisa Feldner has said “the lack of trust goes both ways” between North Dakota State and the university system. Deputy Chief Information Officer Darin King described NDSU’s move to its own email system as a ‘power play.’

‘Power play’

But in emails obtained via open records request, Feldner expresses worries over a lack of trust between NDSU and the university system, and he doesn’t seem convinced the move is necessary.

“I just saw their internal news release and it ticked me off too,” Feldner wrote to Deputy Chief Information Officer Darin King in a June 30 email, referencing NDSU’s announced move to their own email system. Feldner references that Skogen has given NDSU permission to move its administrative and staff email to its student system.

“At that point, we can also discuss if NDSU should run email for the entire system,” Feldner writes. “I told (Skogen) that wouldn’t be happening — that lack of trust runs both ways.”

“Yep, this is a classic power play,” King replied. “Get an inch and try for a mile.”

Asked about the email system move, NDSU General Counsel Christopher Wilson said, “The email migration was authorized by and coordinated with the NDSU.”

In response to inquiry about open records requests sent by lawmakers, Wilson said, “NDSU has worked with Legislative Council regarding outstanding requests, and NDSU is in compliance with all applicable laws.”

The next meeting of the Board of Higher Education is Sept. 25. A meeting agenda hasn’t been posted.