University Complies with State’s Laws Regarding USAP

FORT WAYNE, Ind. – In a response to complaints filed by a faculty member and IPFW Student Media, Indiana’s public access counselor said on June 24 the university adequately complied with the state’s public records and open door laws.

Both Hile and IPFW Student Media filed an open records request asking for meeting memoranda from the USAP facilitation team, steering committee, and task force.

Hile, the former co-chair of the task force, said the USAP process was not “conducive to transparency and believed the USAP Task Force was bound by Indiana’s Open Door Law, because its members were appointed by the university’s chancellor, Vicky Carwein, and would make an official action.

On June 10, 2016, their requests for meeting memoranda subject to the Open Door Law were denied in full by the Office of Institutional Equity.

The office, headed by Christine Marcuccilli, said the records requested were not pursuant to the Open Door Law and were considered “intra-agency advisory or deliberative material communicated for the purposes of decision-making.”

Both Hile and IPFW Student Media filed separate complaints with Indiana’s public access counselor on June 15 and 16.

In their complaints, Hile and IPFW Student Media said the USAP committees were bound by the Open Door Law based on the definition of a “governing body.”

According to Marcuccilli, the assertions made in the complaints were a “misunderstanding of the definitions of ‘governing body’ and ‘public agency’ under the Open Door law.”

In her response, Marcuccilli states that in order for a committee to be considered a governing body of a public agency, the committee must be appointed directly by the governing body or its presiding officer.

“The ‘governing body’ of that public agency is the Purdue Board of Trustees, and its presiding officer is the Chair of the Board of Trustees, Michael Berghoff,” Marcucilli said in her response. “Because the Board of Trustees did not directly appoint any of the groups involved in the USAP organizational structure, none of them is a ‘governing body’ under ODL.”

IPFW Student Media brought attention to the lack of record keeping done by the USAP committees in their complaint after they received an unfilled rubric the USAP Task Force used to determine outcomes for specific departments in response to their original records request.

In response, Marcuccilli said, “IPFW has provided volumes of factual materials retained by the USAP committees.”

In addition to the rubric, a reporter was given two links leading to data that the committee used such as feedback reports, persistence measures, enrollment charts, performance measures, and graduation rates.

However, none of the rubrics, data sets, or metrics were presented in a way that reflected how USAP used them to come to their decisions.

According to Marcuccilli, the materials retained by the committee would “have access to thoughts, analyses, and opinions of their fellow group members” and would be in the exception for advisory and deliberative materials under APRA.

“Any retaliatory actions against USAP members on account of opinions they may have expressed in the process would significantly prejudice any future deliberative work on the campus,” Marcucilli said. “This is precisely the type of harmful chilling effect that the deliberative materials exception exists to avoid.”

In his opinion, the public access counselor sided with the university and agreed the USAP committee is not considered a governing body under the Open Door Law.

“The task force’s charter is clear it is only to provide data and information to the Chancellor,” Luke Britt, Indiana’s public access counselor, said. “As it is not a sub-set or delegation of a governing body authorized by the Board of Trustees, it cannot take official action on public business.”

Britt also said IPFW properly responded to the public records request when it invoked the deliberative materials exception under the APRA.

“If this is not contested then it means that nothing that happens on a regional campus needs to be transparent, and I doubt that is what the framers of the law intended,” Hile said in. “It’s a gray area where one could push against the letter of the law in order to get closer to the spirit of the law.”

Andy Downs, director of the Mike Downs Center for Indiana Politics, said the public access counselor’s opinion was not outlandish and could easily be pulled from the code.

“I think that people may find troubling the fact that the governing body is the Purdue Board of Trustees,” Downs said. “It sort of implies that IPFW, the Chancellor and the administration here can do many things that you normally would think would be subject to open records laws.”

“In some respects what USAP could have done differently is to not simply dump data out there, but to be more selective and to include things like the weighting of the rubrics and other things that would have made it easier for people to understand how conclusions were drawn. That’s really where the transparency is needed,” Downs said.

Hile and IPFW Student Media will not be pursuing further legal action.

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