Did Indiana University FOIA its own professor? [UPDATE: Yup.]

A departure and a policy change continue to raise questions.

by Josh Bleisch and Adam Steinbaugh

December 15, 2021

"What happens when a public records request isn't from a member of the public, but from within a university's own administration? In other words, what if the FOIA is coming from inside the house? It's unusual, but not unprecedented — and events at Indiana University, including a recent and unusual change in policy, suggest it may have happened again.

UPDATE (Dec. 22, 2021): In fact, it did. See the update at the conclusion of this post.

Steve Sanders is a tenured law professor at IU. He is also an IU alum and was long involved with the institution before joining the faculty. Because of his deep relationship with the university, Sanders has become particularly interested in its leadership and administration.

Earlier this year, Sanders started looking into IU's search for a new president to replace the retiring Michael McRobbie. That process, like many presidential searches, was secretive, and Sanders wasn't involved. He did, however, speak with friends and colleagues about the search, and after learning about a large payment to the outgoing president for "consulting services" — which was approved without a vote by the board — Sanders wrote an article about the results of his investigation.

Before he could publish the investigation, Sanders learned — as he would later write in a post in advance of his broader story — that a law firm, which had previously been retained by IU in other matters, made a public records request for Sanders's emails relating to IU's presidential search. Sanders hypothesized that the request was on behalf of IU itself, in an effort to find details of how Sanders learned the information he'd acquired for his article.

. . . . .

UPDATE (Dec. 22, 2021): Indiana University did, in fact, issue a public records request to itself. An invoice obtained by professor Sanders, below, indicates that the university paid the law firm (Hoover Hull Turner LLP) $5,682.70 to "[p]repare and issue" a public records request "to IU," hold two teleconferences with then-Vice President and General Counsel Jacqueline Simmons, and spend fifteen hours reviewing records produced in response to the public records request. The invoice indicates that it was approved by Deputy General Counsel Joe Scodro, designated as "lead" by the university. Simmons has since left the university — the university told law.com that she retired — and Scodro has assumed the role of acting general counsel. (The invoice does not otherwise suggest that Scodro communicated with the firm about the request.)

That invoice is below. 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. In this end-run around the university policy — which limits access to faculty members' emails in recognition of the important academic freedom and freedom of expression interests at stake — what information was accessed, and by whom?

IU owes Sanders, its faculty, and the public an explanation."