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Probe for higher ed emails broadens, prompting review

BISMARCK -- The latest open records query by the research arm of the Legislature seeks every email to or from the 10 presidents of North Dakota's public universities and colleges since July 2012, a massive request that officials think will take until the end of the year to fulfill.

The request renewed July 19 -- made earlier this year but later narrowed because of its size -- has already yielded more than 95,000 pages of emails, and the number is still growing as North Dakota University System officials continue to pull emails that comply with the request, said University System spokeswoman Linda Donlin.

The enormity and cost of the anonymous probe has prompted some legislators to question its value. It is estimated to cost at least $40,000 in staff time, Donlin said.

Made by the Legislative Council on behalf of one or more unnamed legislators, the request is the latest in a series targeting university presidents and officials in higher education seen as opponents of former Chancellor Hamid Shirvani.

The two years remaining on Shirvani's three-year contract were bought out in June for nearly $1 million amid criticism of his management style by a group that included lawmakers and some university presidents -- among them North Dakota State University President Dean Bresciani, who was largely silent in public about Shirvani but criticized him in emails.

The narrowed form of the request now underway was what prompted Legislative Council to seek an advisory opinion from the attorney general on whether Bresciani deleted emails being sought in a records request.

The slimmed-down version sought presidents' emails from a shorter time span, since November, and only those that mentioned certain topics. Those topics were "buyout," "no confidence," "Chancellor," "Shirvani" and the last names of three prominent Shirvani critics -- State Board of Higher Education members Sydney Hull and Kari Reichert as well as former University System attorney Pat Seaworth.

The renewed request is so large that the University System plans to fulfill it in batches, turning over the results so far every Friday until it is completed. Donlin said officials estimate it will take until the end of the year for staff to retrieve emails and redact legally protected information.

Since Feb. 27, the University System office has received 13 public records requests from the Legislative Council, the majority of which seek emails from State Board of Higher Education members, college presidents, University System office personnel and Shirvani.

The revised version of the original sweeping request that has now been revived brought thousands of emails, but likely not the information the unknown requester was seeking.

John Bjornson, an attorney for the Legislative Council, said he assumed "by narrowing the request, what was being sought was somehow excluded."

Bjornson said he doesn't know himself what the legislator or legislators making these requests are looking for.

Legislative Council officials say they don't have to disclose who is requesting the documents because it would violate attorney-client privilege.

During an interim Higher Education Funding Committee meeting last week, lawmakers discussed the value of such requests and asked the University System office to provide a log of the Legislative Council's requests and the costs of those requests.

Sen. Tim Flakoll, R-Fargo, said there's concern among legislators and citizens that the requests create busy work with nothing to show for it.

"What will come out of this request is the underlying concern," he said. "They haven't exhibited the value to the state of North Dakota yet."

The concerns will be brought to the interim Legislative Management Committee for review, he said.

In a letter to Rep. Mark Sanford, R-Grand Forks, who chairs the committee, acting Chancellor Larry Skogen wrote that while the board and University System are required to provide information to legislators, "responding to these requests this year has taken an unusually large amount of time and resources."

Skogen -- who is also the president of Bismarck State College, meaning his emails for nearly a year are part of the legislative probe -- wrote in the letter that the legal cost alone of the July 19 records request will run about $26,000, not including any other prior request.

"Nor does it include the many hours our IT staff members have expended on work related to these requests. Moreover, the cost to the system of work that is postponed as a result of time spent responding to these large requests is not quantifiable," Skogen wrote.

Unlike members of the public and the media, the Legislative Council does not have to pay for the costs associated with fulfilling a public records request.

A North Dakota law that requires state departments and employees to provide information to the Legislature and the Legislative Council has always been understood to mean complying with record requests for free, Donlin said.