Use of private emails slows disclosure about UNC Board of Governors tumult

Posted March 17, 2016

UNC Board of Governors Chairman John Fennebresque addresses the board on Oct. 23, 2015, after it named Margaret Spellings, right, as president of the UNC system.

— October was momentous month for the University of North Carolina system.

Members of the UNC Board of Governors hired Margaret Spellings to be UNC president after a controversy-laden process, granted top campus officials pay raises and tackled other subjects regarding the future of the 17-campus system.

At the same time they discussed those matters behind closed doors and in carefully choreographed public meetings, board members were also discussing them amongst themselves via email, creating a trove of documents that could provide insight into how and why decisions were made.

But more than five months after a request by WRAL News – and weeks after Spellings officially took her seat as system president – a batch of email detailing that tumultuous month is still being "manually reviewed" by the UNC system. That release has been delayed, in part, because each individual member of the board conducted the public's business over personal email accounts or email systems run by their employers until late October.

In early January, UNC system spokeswoman Joni Worthington responded to an inquiry about the status of the disclosure with a "reminder that we also had to collect potentially responsive emails from individual board members."

North Carolina flag flies over state capitol Private email rules vary across NC agencies, audit shows In essence, each member of the board is required to determine which email relates to public business and is trusted to turn it over to the university. That's true even of someone such as John Fennebresque, who resigned after the Spellings hire was made. Despite no longer being a public servant, he is responsible for turning over material related to his service on the board.

"It's generally bad practice for public officials to use private email," said Jonathan Jones, a lawyer and director of the Open Government Coalition based at Elon University.

Not only does it extend the time it takes to respond to public records requests, Jones said, the public is at risk of losing important historical information contained in those emails. As well, the process of retrieving those emails can be cumbersome for the officials involved.

All of those factors contributed to a decision first implemented on Oct. 28, roughly a week after the still-controversial hiring of Spellings, to issue all members of the Board of Governors government-run email addresses.

"We have encouraged members to use the new university accounts and been clear that documents created on or sent from private email accounts or non-governmental computers and other devices may be public records," Worthington said in response to a more recent inquiry. "We have made the point that it is the content of the record, rather than its form of transmittal, that determines whether it is a public record."

By and large, board members interviewed said the new system is welcome.

"It does make the board more transparent," said Louis Bissette, an Asheville lawyer and chairman of the Board of Governors.

Bissette said that he has long used his law firm's work email for UNC business. When a request for records came, he said, his firm's IT department would dig out the requested emails.

"It takes them a long time, and then we have to send them down there," he said.

For board members who are retired or don't have a full IT department, the process is even more time-consuming.

Bissette described WRAL News' request as a "minor problem" compared with others that have, in the recent past, asked for years of emails.

Whether a member of the public is asking for emails sent over the course of a day, a month or a year, emails to and from board members conducting the business of the public university system should be open to inspection.

"I don't think it's very complicated at all. I think if it relates to public business, it's doesn't matter what the device or email account is," said Frayda Bluestein, professor of public law and government at UNC-Chapel Hill. "People have to trust that when you get a request, you're going to give up whatever you have."

The only question, Bluestein said, is how to technically transfer the documents requested.

"I think it's much easier for us to use the UNC system email," said Marty Kotis, a developer and board member from Greensboro.

Kotis said he turned his records responsive to WRAL News' request over to UNC staff on Nov. 9.

Other board members could not respond as quite as quickly. Now that the emails are in the hands of the university system, they are being vetted by the school officials before they're released.

"A member of our staff needs to read every email for potentially privileged or confidential information," Worthington said. "We had hoped to have the records to you by now, but it has taken longer than expected, and we will forward them to you as soon as they are available."

In particular, Worthington said, the system is working to ensure it doesn't not disclose personnel information that is exempt from disclosures.

Jones described a nearly six-month response time for a month's worth of emails "extensive" and "unwarranted," but he said that UNC was likely hamstrung by needing to deal with private emails as well as its lack of a system for categorizing emails when they are generated. A few governments, he said, classify emails as either clearly public, clearly private or in gray areas from the time they are generated, making review during a records disclosures process more rapid.

Any such system, he said, typically relies on public officials doing their public work on publicly owned, and standardized, systems.

"The best practice is to use a government email account if it's available," Jones said.

— WRAL News' Tyler Dukes contributed to this report.

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  • Steve Hutton Mar 18, 2016
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    Check out recommendation #3 on p. 18 of this report.

    BOG emails are still not publicly available on the General Administration website. Would be nice if they could be available.

    Ironic that the GOP has given Clinton so much flack about her private email account, and these GOP BOG members have been so reluctant to use public email accounts themselves.