OHIO—A reporter for The Athens News has filed a complaint in the Ohio Court of Claims after a request for background information about the semifinal candidates for the Ohio University presidency was ignored for over a month.
Conor Morris, a general assignment reporter for the newspaper, filed the complaint after Ohio University General Counsel John Biancamano and Records Management Senior Specialist Pam Dailey ignored requests for the documents.
“Ohio University has declined for more than a month to provide easily available records in what appears to be a bid to limit any access the public has to the identity of candidates being considered in a presidential search,” Morris wrote in the complaint, which was filed January 19.
On January 8, Morris reported in The Athens News that Ohio University had announced the four final candidates for its next president – Duane Nellis, Dean L. Bresciani, Robert G. Frank and Pam Benoit. The story included material provided by the university from the four candidates’ CVs, indicating that the university had those documents in hand.
Yet the university’s legal office continued to ignore Morris’ request for documents that related to the semifinalists, including names and CVs.
Morris had originally requested the applications and resumes of those who applied for the position of university president in early November.
“The university gave me a small list of about 11 or 12 people who, from my understanding, were people who actually ‘applied’ for the position – so that would be people who responded to an advertisement in something like the Chronicle of Higher Education, for example,” Morris said.
“That list was full of candidates who really weren’t as good as what a lot of people were looking for. So that raised the question that maybe there are other people they are looking at who they didn’t provide me the names of with that records request.”
In response, Morris submitted a new request to the legal office via email on December 1, 2016, rephrasing his language to be more specific about the documents he was looking for concerning the semifinalists.
“I structured my request in a way that they couldn’t jumble up my meaning,” Morris said. “I asked specifically for the CVs of people who were going to be interviewed by the university’s search committee.”
OU’s legal office did not actively deny the request, but instead ignored it. After his initial email to Biancamano and Dailey specifying his new request, Morris sent eight follow-up emails. Aside from one response from Dailey acknowledging receipt of the request, Morris received only one other response – an email from Dailey that seems to have been mistakenly sent to Morris asking, “Are we responding?”
“I didn’t make a big deal about it – it’s a mistake, whatever – but it seems to suggest to me that they don’t even have clarity on how they were going to respond, at least at the time,” Morris said.
Morris suggested that the university may try to assert that because they used a private search company to seek candidates, they cannot hand over the documents.
“The way that they would normally try to get around that, is they would say we have a private search firm that we’ve hired to carry out this search, and the CVs, resumes and materials are in the possession of this private search company that we hired to do this job search,” Morris said.
However, under Ohio state law – which Morris highlighted in his original email to the university’s legal office – using a private company to carry out the search does not protect the names of the applicants.
Ohio public records law requires that state agencies provide copies of all public documents to the public, including records created by private companies for the business of a public university. Agencies are required to redact any information subject to attorney-client privilege or protected by FERPA, state or federal law.
In this case, no documents, redacted or otherwise, have been provided in response to Morris’ request.
Morris stated that he is sympathetic to the concerns about releasing information regarding the semifinalists, especially since they are now no longer in the running for the position.
“I’ve heard from a few people in the higher education community who have worked with search firms before… that they’ve heard stories of candidates who’ve stopped participating in a presidential search or high level search at a public university because they don’t want their identities put out there, because they’re afraid that their current job at whatever university they work at would be jeopardized. I do see that as a fair argument as to why someone would not want to release these identities,” Morris said.
Nonetheless, he reiterated that the university is still required by state law to provide this information.
“That’s not a reason to decline to provide records that in my understanding should be public,” Morris said. “For me the larger issue is that you should be practicing to the letter of the law.”
In the complaint, Morris also asserts that the delay in releasing these CVs violates the Ohio Sunshine Law, citing in his complaint that the statute “requires ‘prompt’ production of records for inspection, and to make copies available in a ‘reasonable amount of time.’” As of today, OU’s legal office has ignored Morris’ request for 53 days.
Morris explained that this was not the first time he or other local journalists – including student journalists – have encountered problems obtaining public records from OU’s legal office.
“If I could make a broad statement – they are not very good at providing public records in a timely manner,” Morris said. “When I talk with student journalists, they frequently express frustrations to me about the university’s legal office either ignoring records requests, or denying them because they’re overly broad — even though they probably aren’t overly broad – and in general just being a difficult entity to work with.”
The complaint process Morris has used is relatively new. On September 28, 2016 Senate Bill 321 went into effect, which provides an expedited process for individuals to challenge a denied public records request by opting for a mediation process through the Ohio Court of Claims, avoiding the need for individuals to have to file a lawsuit.
“I have not used this program before, so I am very curious and some of my colleagues and public records nerds friends are interested in the result of this for sure,” Morris said.
Morris has not heard from the university since filing the request, although he had noted in his original email to OU’s legal office that he would pursue such action if they did not respond.
On January 19, the same day that the complaint was filed, Morris and OU’s Biancamano were notified that the complaint had been referred to mediation. Under SB 321, if mediation fails, a Special Master at the Court of Claims will make an expedited recommendation for the court before it makes a binding decision.
When contacted for comment, John Biancamano responded via email that he didn’t feel it was appropriate for him to make any press statements given that he’s the legal counsel for the university.
SPLC staff writer Jessica Kelham-Hohler can be reached by email or (202) 974-6317
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