MEMO

To: University of Oregon Senate

From: Franklin W. Stahl, Biology

Subject: Chronology of events related to the adopted revision of the Student Records Policy (OAR 571-20).

Dear Senators:

This chronology, assembled by fws, is intended to assist Senators in their evaluation of the adequacy of the process by which the UO Administration has re-written the Student Records Policy. Most of the documents (or relevant URLs) referred to are available (free) from fstahl@molbio.

March 12, 2003 (Senate Minutes): "Notice of motion. Mr. Daniel Pope gave notice to the UO Senate of his intent to submit a motion concerning the US Patriot Act and its implications for the campus community."

By this time, the Administration had become aware of faculty concern regarding the "gag rule". The motion was discussed in Senate Executive Session(s?). At about this time, it was stated (by the Senate President) that the motion could not come before the Senate until the May meeting.

March 20: First draft of proposed revision of OAR 571-Division 20 (Students' Records Policy) prepared by the UO General Counsel's office. Among other changes, the draft revisions establish a gag rule. [Although FERPA (federal legislation) established a gag rule from the mid-1990's. the University Student Records Policy (prior to the proposed revision) specifically provides for timely student notification of attempts to access records.]

May 14: UO Senate passed Motion US0203-4, "Request for a Summary Report of the University's Policies and Procedures in Response to the US Patriot Act, CAPPS II, and Other Similar Legislation. Amended to require 'annual' report." (Quoted from Numbered Motions & Resolutions UO Senate 2002-2003.)

May 14: M. Grier reported to UO Senate that no requests for records involving gag rules had been made. Minutes of that meeting make no mention that, on the same day, the fifth (and, effectively, final) draft of a Proposed Revision of OAR 571-20 was prepared by the General Counsel's office.

May 15: M. Grier submitted to the Oregon Secretary of State a NOTICE OF PROPOSED RULE MAKING HEARING and a STATEMENT OF NEED AND FISCAL IMPACT. The NOTICE and STATEMENT deal with proposed changes in the Student Records Policy. The hearing was set for 9:30 am, Friday, June 20, 2003.

[The NOTICE appears to be in violation of 183.025 (2), which states that "whenever possible the public be involved in the development of public policy by agencies and the drafting of rules. The Legislative Assembly encourages agencies to seek public input to the maximum extent possible before giving notice of intent to adopt, amend or repeal a rule." The NOTICE also appears to be in violation of ORS 183.335 in at least three respects: (1) it fails to "... state the subject matter and purpose of the intended action in sufficient detail to inform a person that the person’s interests may be affected..."; (2) it fails to provide "...a reasonable opportunity for interested persons to be notified of the agency’s proposed action..."; (3) It fails to explain satisfactorily "why no advisory committee was used to assist the agency in drafting the rule".]

May 28: Memo from M. Grier to Pauline Austin, Media Relations, directed Ms Austin to forward to the press and wire services copies of the Notice of Proposed Rule Making Hearing (of June 20), the Statement of Need and Fiscal Impact, and a copy of the Proposed Amendments to OAR 571, Division 20. Ms Austin sent out the documents as directed. The memo also announced a "pre-hearing" scheduled for June 3, but did not direct Ms Austin to inform anyone of the pre-hearing, and she did not, according to G. Bolt, Register-Guard (in conversation with fws).

[Perhaps this Memo re the June 3 "pre-hearing" was intended to to put the University in compliance with the legal requirement to provide "...a reasonable opportunity for interested persons to be notified of the agency’s proposed action..." Even if the pre-hearing notice had been adequately advertised, one could ask whether End of Quarter is a good time to gather comment from students or faculty.]

May 28: Memo to 13 people (names on request) announcing the June 20 hearing and the June 3 "pre-hearing" and asking them to have the enclosed documents (as above) "made available for public inspection". Among the 13 people notified were the outgoing Presidents of the Senate and the ASUO. The Memo stated that the last opportunity for comment was 5 pm, June 20, and the revision was to go into effect on August 11.

[The June 20 deadline appears to be in violation of the Law requiring that "...when an agency proposes to adopt, amend or repeal a rule, it shall give interested persons reasonable opportunity to submit data or views."]

June 3: "Pre-hearing" was attended by Student Advocate Hillary Berkman and (I think) by the incoming ASUO President, Maddy Melton. Deb Eldredge, the Hearings Officer, proclaimed "input" from many groups, which she named. H. Berkman and M. Melton protested the short notice. Berkman later submitted a four-page critique questioning the impact of the extensive revisions. D. Eldredge declared the process of rule revision had been going on for a "few years", and was in its 7^th Draft. ASUO spokeswoman Taraneh Foster later declared "... that at the last Programs Council Meeting, to which ASUO sent a representative, University Registrar Herb Chereck and Vice President for Student Affairs Anne Leavitt presented draft 5.0 of the privacy code. That was the first time ASUO heard of the changes..." (ODE July 1).

June 20: Public Hearing was attended by about eight faculty members, including several UO Senators. All challenged the adequacy of the proceedings and denounced the brazen disregard of Senate Motion US0203-4.

August 13: M. Grier (letter to fws):

"(ii) We do not have a document or documents that provide the names of individuals with campus affiliations who participated in the development.

> (iii) We do not have a document or documents that describe all the opportunities for input."

[This admission further undermines the credibility of M. Grier's assertions (in the STATEMENT OF NEED AND FISCAL IMPACT of May 15, 2003) that "...a number of individuals participated in the development" and "...development included input from a variety of individuals and ... we will provide extensive opportunity for input prior to adoption."]

August 13: M. Grier wrote to fws, "The effective date of the rule has been postponed until September 2 or later. Because you have asked to be on the notification list, you will receive notification when the rule becomes effective." Deb Eldredge (Rules Coordinator in the General Counsel's Office) confirmed orally (to fws and hmf) that no further announcements regarding postponements (if any) would be sent to the Notification List.

August 21: In response to requests for all documents submitted in response to the hearings notification, M. Grier sent fws two hard-copy documents. She failed to send at least one other.

M. Grier did not forward the requested copies of e-mail responses. Instead, she wrote, "We will need to search e-mail for those comments. We estimate the cost for searching for those comments will be approximately $50."

[The University appears to be ignoring the Law that requires that "The agency shall consider fully any written or oral submission."]

August 22: fws requested of M. Grier that e-mail comments be sent to him (gratis) whenever she has "...pulled those together for review by yourself and other Responsible Officials."

September 17: fws and others on the Notification List received a Certificate and Order for Filing of a new Student Records Policy, along with a copy of the new OAR 571-020. The new OAR was adopted September 5 to become effective September 15.

[The request of August 22 by fws for gratis copies of comments submitted electronically in response to the Public Hearings remains unfulfilled. This suggests that the University is in violation of two provisions of ORS 183.335 -- one requiring full consideration of all submitted comments and the other requiring a permanent record of comments received.]

September 18: Letter to fws from D. Eldredge reports that she does, now, have 106 pages of comments submitted electronically, but cannot send them to me by e-mail. Fws may purchase hard copies from her at $0.25 per page.

September 22: fws receives in campus mail from D. Eldredge a hard copy of an email letter from Senator Henry Alley to Melinda Grier (with cc's to various), dated June 20. fws is grateful but wonders why D. Eldredge forwarded this hard copy of an email letter (gratis) while requiring that fws pay $0.25 for copies of each of the other 106 pages of e-mailed comment.

September 23: Deb Eldredge informed fws and hmf that H. Alley's comments were the only e-mailed ones considered by Responsible Officials, because the many other such letters (all denouncing the process) came in after the June 20, 5 pm deadline.