When the presidents and chancellors of the 14 Big Ten universities began discussing the prospects of students returning to their campuses last fall amid the coronavirus pandemic and with football season looming, they weighed many considerations, from public health to financial impact.
But emails obtained by The Washington Post through public records requests reveal another priority: keeping their discussions from entering public view.
“I would be delighted to share information,” Wisconsin Chancellor Rebecca Blank responded in an email chain begun in August by Michigan President Mark Schlissel, “but perhaps we can do this through the Big 10 portal, which will assure confidentiality?”
The next day, Schlissel told his colleagues: “Just FYI — I am working with Big Ten staff to move the conversation to secure Boardvantage web site we use for league materials. Will advise.”
The Big Ten portal, which uses Nasdaq Boardvantage’s software, allows users to communicate with one another, share meeting materials and view documents — but the school presidents value it at least in part because they see it as exempt from open-records laws.
This portal seemingly served as a primary form of communication for conference leaders, including university presidents and athletic directors, when they were vacillating over whether to stage a football season, amid varying pressures ranging from players’ parents to the White House. The deliberations that led to the initial decision to postpone the season until the spring and the subsequent about-face that led to a cancellation-plagued campaign that began in late October remain shrouded from public view. Open-records requests to several schools for the documents and communications housed on that platform were denied.
The apparent attempt to avoid public scrutiny alarmed public records experts, who voiced concern over the possibility that the leaders of 13 of the nation’s richest public institutions (Northwestern is the only private school in the conference) are taking steps to avoid scrutiny from the taxpayers who fund their universities.
“The idea that government officials would intentionally use a technological platform, seemingly with the intent of evading public records laws, is both troubling and wrong on the law,” said Adam Marshall, a senior staff attorney at the Reporters Committee for Freedom of the Press.
Asked about the above exchange, a Wisconsin spokesman said in a statement: “Chancellor Rebecca Blank communicates with her fellow Big Ten presidents and chancellors in multiple ways, but is mindful of her responsibilities under Wisconsin’s public records laws. In the discussion in question, her intent was to move the conversation out of a long, reply-all email string and onto the Big Ten’s secure collaboration platform.”
In a statement, a Michigan spokesman said the conversation was not moved to the Big Ten portal, adding that Schlissel “regularly communicates with the presidents of other Big Ten universities in a variety of ways on many topics.” Michigan directed specific questions about the portal to the Big Ten. The conference office declined to comment.
An end-around the law
The 13 public institutions in the Big Ten, which spans 11 states, are subject to Freedom of Information laws, which make exceptions for some private data, such as an individual’s medical information. Such material should be redacted from records that otherwise should be released.
The conference itself is a private entity and does not have the same obligations to comply with public records laws. The portal, hosted on third-party software and run by the conference office, complicates a process that is meant to force government agencies to operate transparently.
“This is not new,” said Chip Stewart, a professor of journalism at Texas Christian University and an attorney. “Ever since new forms of communication have been developed, public officials have been trying to use them to get around open meetings and open records laws.”
A third-party system doesn’t nullify public records laws, according to multiple experts.
“If a public official writes something, that’s a record,” Stewart said, even if it’s on a private platform, such as Gmail, Slack or this Big Ten portal. The designation becomes more complex if the official simply reviews a document, rather than contributes to a discussion with comments or messages.
“The courts have generally come down on the idea that if it’s a public official communicating public business, then those communications would be subject to the law, subject to disclosure,” said David Cuillier, an associate professor of journalism at the University of Arizona who has testified before Congress regarding the Freedom of Information Act. “And none of these workarounds to hide from the public are going to hold water.”
According to emails between Lisa Hull, Wisconsin’s public records custodian, and Dianna Klein, the assistant to Chancellor Blank, a media outlet requested Blank’s briefing materials and notes related to meetings this summer among the conference’s presidents and chancellors. When conducting a search for relevant records, Klein told Hull that Blank received multiple emails with links to the Big Ten portal. Hull asked whether Blank had printed or saved copies of those linked materials.
Klein forwarded the inquiry to Blank, who said she had not printed or saved any documents and wrote: “If anybody suggests that documents on a Big 10 secure site can be accessed through WI public records law, please let me know immediately. This is incorrect. These documents are not in my possession.”
Blank later was informed the school responded to the reporter’s request by saying there were no responsive records.
“What you see there is intent,” Stewart said of that exchange. “What you see there is, ‘The reason we use this third-party communication channel is because it is a way for us to not generate records that are in our possession that are going to be subject to open records laws.’ That’s a problem.”
‘I share your concern’
In August, college football’s five major conferences employed varied approaches to the pandemic. The ACC and Big 12 opened their seasons in early September, and the SEC followed two weeks later. The Big Ten’s presidents and chancellors, citing concerns about athlete health and safety, voted to postpone the 2020 fall football season — and faced immediate blowback.
A small group of parents rallied outside the conference’s headquarters near Chicago, and a petition to reverse the decision received more than 300,000 signatures. President Donald Trump called Big Ten Commissioner Kevin Warren to advocate for a return to play. In mid-September, the presidents reversed course and announced a nine-game season would begin in late October. (The Pac-12 had a similar turnaround, starting in early November.)
Broad records requests from The Post to various Big Ten schools — asking for emails from university leaders that included keywords such as “football,” “season” or “athlete” — yielded little relevant discussion. Instead, they showed a shared concern that their deliberations never reach the public’s view.
After Schlissel asked his colleagues to share their experiences in dealing with the coronavirus on campus, Blank wrote: “Mark and others — please note that anything that arrives in or is sent from my email can be requested as a public record. I know I’m not the only one for whom this is true.”
Some of the university leaders responded to Schlissel’s request and shared their campuses’ experiences via email. Nebraska Chancellor Ronnie Green provided information about his school’s reopening efforts, while adding: " ‘Ditto’ to Chancellor Blank’s request/comment. I share that same concern.” A Nebraska spokesperson declined to comment on the exchange.
Not long after Blank shared her concerns with her colleagues, Schlissel wrote in an individual message to Blank: “becky, if you simply delete emails after sending, does that relieve you of FOIA obligations? I share your concern of course.”
There is no indication that Schlissel or Blank have deleted emails to evade public records laws. Blank told Schlissel that her deleted emails are subject to disclosure through the Freedom of Information Act and she would be violating state law if she permanently deleted them.
Schlissel, who has been Michigan’s president since 2014, responded: “that’s really interesting and difficult. Thanks for explaining.”
Government agencies, including state universities, typically must follow retention and disposal schedules that indicate how long records must be kept, but a school spokesman said the University of Michigan does not have a requirement to retain email for any specific period of time. At the University of Wisconsin, routine communication must be kept for at least six months.
“The suggestion [to delete emails] is incredibly troubling in and of itself,” said Marshall, an attorney whose work includes litigation in federal and state courts.
On Aug. 15, Big Ten presidents and chancellors received a notification from the portal that linked to a document called, “Email on Behalf of Chancellor Blank.” The purpose of this message, and why it was sent through the portal, is unclear. If an official had, for instance, dictated what he or she wanted to share and a Big Ten staffer wrote that down, the official would have successfully evaded public records laws, because rather than simply emailing the recipients, that communication was channeled through a private entity without creating a public record.
Sometimes the links in the notification emails had names as vague as “Document for Review” or “Memorandum.” Blank mentioned in an email that she could not print or save documents from this portal, and it is unclear how often university officials communicated through this platform in lieu of email.
After The Post requested all digital communications, including those from this Big Ten platform, Hull, the public records custodian at Wisconsin, wrote, “Also note that we have not included documents linked to in these emails because those documents are not in the possession of, or maintained by the university.” The University of Nebraska also did not provide any documents from the portal, with a similar explanation. The school said the records belonged to the Big Ten, rather than the university.
However, Cuillier said that as long as the chancellor can log in to a password-protected portal, this material is in possession of the university and the school can access it.
“It’s going to depend a little bit on the state law in question,” Marshall said. “But I would argue that if the government official is using that information in any way in the performance of their duties, they can’t just say: ‘Oh, yeah, I’m using this information. I’m using these records. But because the 1s and 0s are housed on a server somewhere else, that means that it’s not a public record.’ "
The Big Ten football season ended up being marred by COVID-19 outbreaks in several programs. Wisconsin canceled two of its first three games and postponed another because of an outbreak in the opponent’s program, and Michigan canceled its final three games. How and why the leaders of public universities, after initially canceling the season out of safety concerns, decided to reverse course remains largely opaque to citizens in their states.
“It’s of the upmost public interest, and that makes it all the more shocking,” Marshall said. “… I find the communications that we’ve been talking about here to be so upsetting, both as a lawyer but also as someone who cares about a functioning democracy. And I think in times of public health crises, like covid, that’s even more true than it is in our day-to-day democracy.”
Nate Jones contributed to this report.