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NDSU president denies deleting 45,000 emails subject to open records request; state AG investigating

FARGO -- Attorney General Wayne Stenehjem will determine whether North Dakota State University violated open records laws by reportedly deleting more than 45,000 emails from President Dean Bresciani's inbox that may have been subject to a legislative open records request.

If Stenehjem determines the emails were deleted to avoid public disclosure, he could refer the matter to a state's attorney for consideration of criminal charges, including a felony for destroying public records.

NDSU spokeswoman Laura McDaniel issued a written statement Monday, stating the university has not yet verified if emails were deleted, but that NDSU will cooperate with any investigation.

"President Bresciani did not delete 45,000 emails on April 29," nor did he request that anyone delete emails, McDaniel wrote. "We are looking into the matter."

She said the parent University System outsources its email system to Microsoft, and NDSU is working with Microsoft to get more information.

John Bjornson, an attorney for the North Dakota Legislative Council - the workforce that supports state lawmakers - asked Stenehjem on Thursday for an opinion on whether NDSU failed to provide public records after an open records request that sought Bresciani's emails revealed about 45,375 emails had reportedly been deleted from his inbox.

At question is whether emails were deleted and, if so, by whom and why.

How it unfolded

On April 29, the Legislative Council, on behalf of an unnamed legislator, requested emails from a number of officials and staff members in the world of North Dakota higher ed, many of whom were believed to be tied to efforts to undermine then-University System Chancellor Hamid Shirvani.

In the open records request, the emails of each state school president were sought from July 1, 2012, to April 28, 2013, the same day The Forum newspaper ran a major investigative piece gleaned from emails exchanged between several university presidents about Shirvani.

Shirvani took over as chancellor on July 1, 2012.

Because the Legislative Council's original request for documents was overly broad, it later narrowed the time window from Nov. 1, 2012, to May 1. It was also revised to include only emails that mentioned Shirvani or others involved in the dispute that led to the buyout of his contract.

When that request only turned up about 900 pages of emails from Bresciani's account, the Legislative Council asked the parent North Dakota University System - rather than NDSU, which had overseen the first data dump - to look into it, and whether any emails were deleted.

Information technology personnel from the University System later confirmed that about 45,375 emails were deleted from Bresciani's account sometime around April 29 - the day the state made its open records request.

In a June 17 email to the Legislative Council, Claire Holloway, attorney for the North Dakota University System, wrote that information technology specialists noticed "a deletion of about 45,375 emails (about 4 gigabytes of data) from President Bresciani's Outlook inbox that day (April 29)."

But in a follow-up email from Randall Thursby, then-chief information officer for the state University System, he wrote that the emails were deleted sometime "in the two weeks prior to the request."

University System attorney Holloway declined to comment for this story. A University System receptionist reached Monday said Thursby no longer works for the University System. Thursby had planned to retire this summer.

Legislative Council attorney Bjornson said Monday he believes the deleted emails may still be accessible. Citing attorney-client privilege, Bjornson declined to identify the legislator who initiated the records request.

What's required?

The timing of the reported email deletion - around the same time NDSU received a request for the material - raises the concern that they were destroyed to avoid the public eye, said Jack McDonald, a media attorney and lawyer for the North Dakota Newspaper Association.

"If the person can just destroy records before you get them, then the open records law doesn't mean much," McDonald said.

North Dakota's open records law states that "an electronic copy of a record must be provided upon request." North Dakota criminal statues also say that a public official found guilty of destroying public records could be charged with a felony.

North Dakota leaves it up to each public entity to set its own schedules for when records should be dumped.

NDSU's retention schedule has three different time windows for when administrative correspondence can be deleted, based on the content of the message:

-- Messages or emails that don't "contain any significant information" can be deleted one year after the fiscal year an email was sent in ends.

-- Messages with significant information can be deleted three years after the current fiscal year.

-- Communication that "documents significant events and the development of administrative structure for the University" is supposed to be kept six years after the current fiscal year lapses.

NDSU spokeswoman McDaniel said the university does not have a policy on specifically when emails can or should be deleted.

That leaves the decision up to interpretation, McDonald said.

"You would presume that most of the emails would have to deal with the university," he said. "The question is: Why were the 45,000 deleted? Were they a part of some general plan? Why 45,000 in one swoop?"