General Counsel Reed steps down from Transparency Committee, warns Senator Harbaugh that participation in Senate committee work may violate Oregon ethics law

From: Kevin Reed <ksreed@uoregon.edu>
Subject: RE: Potential Fee Appeal by Daily Emerald Public Records Requester
Date: March 16, 2018 at 2:41:57 PM PDT
To: William Harbaugh <harbaugh@uoregon.edu>
Cc: David Cecil <cecil@uauoregon.org>, Chris Sinclair <csinclai@uoregon.edu>

Please review the Oregon Government Ethics Law. Feel free to seek an advisory opinion from the Oregon Government Ethic Commission. As I am sure you are aware, violations of the OGEL can create personal liability to the public official, and thus the risk is really yours, not that of UO.

You have been assessed over $45,000 in fees on your public records requests over the course of the last 5 or so years. You have paid a few hundred dollars for documents, but mostly you have protested the fees and argued for a change in fee policy that would reduce or eliminate fees. A private citizen is, of course, free to engage in such advocacy, but when a public official does so in his official capacity, he does so at his own risk. I have told you this before, and you have ignored my advice thus far. And, as I said the risk is on you, not the university, so I can’t tell you what to do.

From: Bill Harbaugh [mailto:harbaugh@uoregon.edu]
Sent: Friday, March 16, 2018 1:56 PM
To: Kevin Reed <ksreed@uoregon.edu>
Cc: David Cecil <cecil@uauoregon.org>; Chris Sinclair <csinclai@uoregon.edu>
Subject: Fwd: Potential Fee Appeal by Daily Emerald Public Records Requester

Hi Kevin,

I’d appreciate it if you could point me to the UO Conflict of Interest policy that you believe I will be violating by “participation in any work of the committee that purports to influence university policy on assessing fees on public records requesters”.

I’m ccing UAUO’s Dave Cecil, in case he has some suggestions.

Thanks,

Bill Harbaugh
Economics Prof & Senate VP
University of Oregon
https://senate.uoregon.edu

 

Begin forwarded message:

From: Kevin Reed <ksreed@uoregon.edu>
Subject: Re: Potential Fee Appeal by Daily Emerald Public Records Requester
Date: March 16, 2018 at 1:49:01 PM PDT
To: William Harbaugh <harbaugh@uoregon.edu>
Cc: Michael Tobin <mtobin@uoregon.edu>, Chris Sinclair <csinclai@uoregon.edu>, Christopher Chavez <cchavez4@uoregon.edu>, Senate Executive Coordinator <senatecoordinator@uoregon.edu>, Bryan Dearinger <bdearing@uoregon.edu>

Thanks for the legal advice, but I believe the participation of my office in the work of the committee on this issue would present a conflict of interest.

I also believe that your participation in any work of the committee that purports to influence university policy on assessing fees on public records requesters creates a conflict of interest for you.

I do not intend to participate in this meeting and I will not be a member of the committee. Assuming the committee is planning to become active in the last term of this year, despite having fulfilled none of its obligations as a committee in over a year, Associate GC Dearinger will serve as the PRO’s ex officio member.

Kevin S. Reed
Vice President and General Counsel
University of Oregon

On Mar 16, 2018, at 1:23 PM, Bill Harbaugh <harbaugh@uoregon.edu> wrote:

Thanks Mr. Tobin,

I’m forwarding this on to the STC members, but please also include it in the materials you submit with your complaint.

Kevin, I believe Betina has been trying to scheduling an STC meeting time with your office. As you are not a voting member of the STC, there will be no conflict of interest, and we expect you to be present and answer questions.

Thanks,

Bill Harbaugh
Economics Prof & Senate VP
University of Oregon
https://senate.uoregon.edu

On FridayMar 16, 2018, at 12:35 PM, Michael P Tobin <mtobin@uoregon.edu> wrote:

My response:

“Good afternoon Mr. Reed,

Thank you for relaying this message back to me and closing the communication loop.

I will be continuing my complaint with the STC, but I would like to talk with you about my request and the Office of General Counsel’s review of the subpoena. I understand that the document is exempt from disclosure, but it would have been helpful to know that before I paid the money for the record and waited almost a month to find out that I would not receive it. A few months ago, I requested survey data from the university, which is also exempt from disclosure. I was told that the data was exempt and that ended the ordeal.

I understand the exemption that the Office of General Counsel and Public Records Office cited, but find it unfair that the Public Records Office didn’t initially tell me the subpoena was exempt.

Let me know if you would like to meet in person or talk over the phone.

Best,

Michael Tobin”

——– Original Message ——–
Subject: FW: Potential Fee Appeal by Daily Emerald Public Records Requester
Date: 2018/03/09 12:04
From: Kevin Reed <ksreed@uoregon.edu>
To: Michael Tobin <mtobin@uoregon.edu>
Cc: Bryan Dearinger <bdearing@uoregon.edu>

Michael:

I see that the DA’s office did not copy you on their communication
with my office, or if they did, they did not copy us. I’m forwarding
this on to close the loop.

You are always free to pursue your “complaint” with the Senate
Transparency Committee, and I’m assuming that’s what Prof. Harbaugh
has encouraged you to do. I just wanted to be clear with you that the
STC is only advisory to the administration and, given the known bias
some members of the STC have on the issue of fees and fee waivers, I
harbor some doubt that the STC will produce advice that is of much value
to the administration in this context. While I am an ex officio member
of the STC, I won’t participate in any of their process about your
“complaint” since I believe that would create a conflict of
interest.

That said, I am always happy to talk with you directly about the fee
that was assessed and your request for a fee waiver. In addition, and
regardless whether you want to talk with me directly or pursue your
“complaint” with the STC, you are always free to raise your concerns
by way of appeal to the Lane County DA. I have attached a simple form
they use for such appeals. Decisions by the DA are binding on the PRO
(although subject to appeal).

I just wanted to be sure you knew what the DA had shared with us and
that you otherwise knew what your options are.

FROM: PERSHERN Angela M [mailto:Angela.PERSHERN@co.lane.or.us]
SENT: Wednesday, March 07, 2018 3:01 PM
TO: Bryan Dearinger <bdearing@uoregon.edu>
CC: HASSELMAN Erik <Erik.Hasselman@co.lane.or.us>
SUBJECT: FW: Potential Fee Appeal by Daily Emerald Public Records
Requester

FYI

FROM: PERLOW Patty
SENT: Wednesday, March 07, 2018 3:00 PM
TO: PERSHERN Angela M
SUBJECT: RE: Potential Fee Appeal by Daily Emerald Public Records
Requester

That is not a fee appeal.

FROM: Bryan Dearinger [mailto:bdearing@uoregon.edu]
SENT: Wednesday, March 07, 2018 11:05 AM
TO: HASSELMAN Erik; PERSHERN Angela M
CC: Public Record Requests; Michael Tobin
SUBJECT: FW: Potential Fee Appeal by Daily Emerald Public Records
Requester

Dear Chief Deputy Hasselman,

Please find below what appears to be an internal “complaint” to a
University Senate Committee but what is likely a public records fee
appeal by the requester, Mr. Michael Tobin, Senior News Reporter for the
Daily Emerald.

I am copying Mr. Tobin on this email to the extent he wishes or needs to
provide additional information to the DA’s office for purposes of his
appeal. Chief Deputy Hasselman, is there anything else Mr. Tobin needs
to do properly lodge an appeal? If not, the University will begin to
prepare its response.

Sincerely,

Bryan

BRYAN DEARINGER | ASSOCIATE GENERAL COUNSEL

OFFICE OF THE GENERAL COUNSEL

219 Johnson Hall | Eugene, OR 97403-1226

(541) 346-3082 | bdearing@uoregon.edu

generalcounsel.uoregon.edu [1]

 

On WednesdayFeb 21, 2018, at 11:33 AM, Michael P Tobin
<mtobin@uoregon.edu> wrote:
Hello,
I would like to file a complaint with the Senate Transparency
Committee over the $113.64 fee I was charged as a reporter for the
Daily Emerald for the attached public records request. “I am
requesting any Department of Justice criminal subpoenas the
University of Oregon has received over the past year.” After paying
the fee and waiting to receive the record, I was told that it was
exempt from disclosure under ORS 192.345(3) due to the fact that it
relates to “a pending federal investigation.” The UO was told by the
investigating agency not to disclose the record to any third party
as it would “impede the investigation.”
I was reimbursed for the fee by the Daily Emerald, but I still
believe it is unfair to be charged for records that are exempt from
disclosure.
Thank you,
Michael Tobin

 

Links:

[1] https://generalcounsel.uoregon.edu/
<Lane County DA PRR appeal form.docx>

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