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Transparency question at center of U. Iowa tension

December 24, 2012

IOWA CITY - A seemingly mundane issue is at the heart of the criticism that has put University of Iowa President Sally Mason on the defensive: the interpretation of Iowa's public records law.

During Mason's five-year tenure, the university has routinely refused to release records related to high-profile controversies by citing broad exemptions in the law meant to bring sunlight to public institutions. But the long-standing practice appears to have backfired in recent weeks in two personnel matters, bringing criticism from Gov. Terry Branstad and forcing Mason to quiet speculation that she could be facing pressure to resign.

At a press conference this month, Mason acknowledged that she continues to face questions about "openness and transparency" but defended her decision to routinely withhold student and employee personnel files such as internal investigation reports. She said university lawyers tell her the law is clear that those cannot be released, and doing so would invite lawsuits from those who say their privacy rights were violated.

Article Photos

University of Iowa President Sally Mason addresses members of the media during a question and answer session Dec. 12 at the University Capitol Centre in Iowa City.

But media representatives and watchdogs argue the law gives Mason the discretion to release such records. The governor has also weighed in, blasting a lack of transparency at the university, even as Mason has vowed to continue taking a hard-line legal approach to limit public knowledge of its internal affairs.

"I believe there is a 'shall' in there that really does restrict what can be released," Mason said of Iowa's law, when pressed on whether she had such discretion. "I am absolutely committed to not putting the institution at risk for litigation if I can help it. I do not think that's productive, nor do I want to spend money on litigation. I'm going to stick with our legal interpretation."

The law, as written, would appear to give Mason more leeway than she claims. It says personal information in confidential personnel files shall be withheld - unless otherwise ordered by the records custodian. Critics argue that gives Mason discretion to release more information about the university's handling of employment matters.

But Mason's stance is backed up by a 4-3 ruling this summer from the Iowa Supreme Court, which found that disciplinary records are broadly exempt from disclosure. The court suggested agencies should not be able to release them on a case-by-case basis, saying employees' privacy should not be treated differently "based on the degree of public interest." Dissenting justices warned that approach would rob the public of a way to measure how well agencies respond to public misconduct.

Branstad's transparency adviser, former Iowa Newspaper Association chief Bill Monroe, said he was troubled by Mason's approach because universities should set the standard for transparency.

"Iowa taxpayers, students and parents invest a great deal of money and put a great deal of trust in these schools," Monroe said. "When there is a lack of transparency, as I believe is the case at UI, it erodes public trust not only in that school but in all of state government. It begs the question: What do they have to hide?"

Mason acknowledged the differing interpretations and said lawmakers should consider clarifying the law. But until then, Mason said she will err on the side of protecting the privacy of 31,000 students and 25,000 employees.

Ben Stone, executive director of the Iowa Civil Liberties Union, said he's all for protecting legitimate privacy rights, but he worries the university too often invokes broad exemptions to the public records law. He said the university routinely publicizes achievements by employees while potentially negative information is termed a confidential personnel record.

"It appears there is a reflex to always resort to finding an exception in order to keep things secret," he said.

Two cases highlighted the university's aggressive safeguarding of employee records.

The university refused to release documents related to an internal investigation into sexual harassment of students and athletes by former athletics department official Peter Gray, which allegedly dated back to the 1990s. The school also withheld his resignation letter - but divulged 1,000 irrelevant mass email messages and retail ads from Gray's account.

The case became public because someone leaked a copy of an investigation report to the Iowa City Press-Citizen.

Mason said the university would not offer a full accounting of Gray's case, such as why he left in 1995, whether his 2002 rehiring was appropriate, and how complaints against him were handled. She has apologized for what she called lapses - without explaining what they were.

"I'm not sure what else there would be to show," Mason said.

In the second case, Provost P. Barry Butler directed College of Education faculty and staff leaders to surrender copies of a workplace survey that had comments critical of the performance of Dean Margaret Crocco.

During a tense meeting, faculty and staff leaders said Butler would not leave the building without the documents and required them to delete electronic copies. The leaders said they reluctantly agreed after he and UI general counsel Carroll Reasoner warned the university would not defend them if sued.

Butler said the documents were part of Crocco's personnel file and had to be protected against misuse. All seven members of a faculty advisory committee resigned in protest, blasting a lack of transparency. Crocco resigned this month.

Mason said Butler did "what was responsible and right." And she said disputes can be more easily resolved internally because it is harder to negotiate in the public eye.

"It's like doing marriage counseling on the TV set," she said. "It doesn't always work that well when you've got an audience listening."

Copyright 2012 The Associated Press.



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