University accused of weaponizing public records law to harass, intimidate faculty

Indiana University paid a law firm to file a public records request against itself to search the emails of a law professor who was investigating its presidential search process, the professor claims, citing an invoice for the firm's services.

Steve Sanders said he learned about the Access to Public Records Act (APRA) request made by Hoover Hull Turner, "presumably to attempt to find out how I’ve learned what I know," on the eve of publishing his investigation on Medium in October.

The request covered any presidential search-related emails he may have sent or received with trustees, search committee members, former officials and recently departed President Michael McRobbie.

A civil liberties group focused on higher education said it was aware of only one previous "inside the house" public records request by a college, in that case against a student newspaper.

Sanders had already asked high-level officials for comment on his investigation, but the university and law firm - which had previously represented IU in court - ignored his offers to confirm or deny IU was behind the APRA request. "So draw your own conclusions," he said.

The taxpayer-funded institution didn't hold back, however, when Sanders filed a regulatory complaint alleging that it violated the state "open door law" by paying McRobbie nearly $600,000 for "consulting services" without a board discussion or vote.

General Counsel Jacqueline Simmons responded to the Indiana Public Access Counselor by denying any violation but also accusing Sanders of violating "institutional data" policies by disclosing "restricted" and "sensitive" information to third parties through his Medium posts.

It's not the first university to accuse faculty of violating institutional policies through watchdog blogging. Chicago State University paid $650,000 and revised its cyberbullying and computer use policies to settle a lawsuit by two professors whose blog it tried to shut down.

The university did not respond to requests from Just the News on whether it initiated the search of Sanders' emails through APRA.

The APRA request and Simmons' counter-accusations prompted warnings against IU from two academic freedom groups.

"It would fly in the face" of APRA for a public university "to harass one of its own professors for bringing to light important matters of public concern about the conduct of that university’s officials," the Academic Freedom Alliance wrote in a letter to new President Pamela Whitten last month.

"Even worse would be a university covering its tracks by hiring a law firm to carry out a public records request to achieve this end," said the group, founded earlier this year to defend faculty. It noted the university had rebuffed media requests about its role.

The Foundation for Individual Rights in Education warned IU in mid-December that its actions against the professor amounted to unconstitutional chilling effects on faculty.

"Sanders has an interest as a member of the faculty in the operations and leadership selection of IU and whether the university is upholding its duties to act transparently," and if IU believes his investigation was "separate from his role as a professor, the First Amendment protections are even stronger," FIRE said.

It noted that IU had updated its electronic information privacy policy Dec. 13 - for the first time since 2008 - to prohibit administrators from initiating APRA requests to students, faculty or staff.

The timing of the new prohibition, which "appears unique" in higher education, suggests someone at IU had already abused APRA, the civil liberties group said.

Sanders had filed his own APRA request to find out who initiated the search of his emails, and he recently obtained an apparent smoking gun: a Dec. 1 invoice between the university and law firm.

One line item for three billable hours reads: "09/16/2021 - Prepare and issue APRA request (9/16/21) and amended APRA request (10/1/21) to IU." Another for 15 hours: "Receive and review records in response to APRA request (10/6, 10/7, 10/12, & 10/20)."

Simmons participated in two teleconferences with Hoover Hull Turner and discussed the documents with the firm, the invoice shows. The $5,682.70 payment was approved by Deputy General Counsel Joe Scodro, who replaced Simmons after she departed in December.

"Still unanswered is who at the university reviewed the records to remove confidential information before producing them and whether they knew the requestor was working for the university," FIRE wrote Dec. 22. "IU owes Sanders, its faculty, and the public an explanation."