Hussman Gift and Pledge Payment Agreements

David Routh
Vice Chancellor for University Development
Office of University Development
University of North Carolina at Chapel Hill
P.O. Box 309
Chapel Hill, NC 27599-0309
drouth@email.unc.edu

June 18, 2021

Dear Mr. Routh,

Under the North Carolina Public Records Law, G.S. §132-1, we are requesting copies of the following:

* The signed Gift Agreement that resulted in changing the name of the UNC-Chapel Hill School of Media and Journalism to the Hussman School of Journalism and Media.
* Any signed Pledge Payment Agreement related to the signed Gift Agreement that resulted in changing the name of the UNC-Chapel Hill School of Media and Journalism to the Hussman School of Journalism and Media.

Because North Carolina law specifies requesters can obtain public documents "in any and all media in which the public agency is capable of providing them," please send the information in electronic form, and specifically in Excel (.csv) format where possible. As the law requires, please release all reasonably segregable nonexempt portions of documents.

We request a waiver of all fees for this request because this request is made as part of the process of news gathering and not for commercial use. Disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of government, namely the University of North Carolina.

State law requires that you respond to and fulfill this request "as promptly as possible." If you expect a significant delay of over three working business days in responding to and fulfilling this request, please contact me with information about when we might expect copies or the ability to inspect the requested records. Please provide records as they are processed.

If you deny any or all of this request, please cite each specific statutory exemption you feel justifies the refusal to release the information and notify me of the appeal procedures available to me under the law. If you contend that a responsive record contains confidential personnel information under North Carolina law, please redact the record for the purposes of protecting confidential information and produce the responsive portion of the record.

If you have any questions regarding this request, please contact us at 336-278-5506 or reply to this email address.

Thank you in advance for your facilitation of this request.

Best,

Brooks Fuller, Director, N.C. Open Government Coalition, Elon University

Bill Adair, Knight Professor of the Practice of Journalism and Public Policy, Duke University

Shannan Bowen, Executive Director, N.C. Local News Workshop, Elon University

Neal Caren, Associate Professor of Sociology, UNC-Chapel Hill

Paul Cuadros, Associate Professor, UNC Hussman School of Journalism and Media

Victoria Smith Ekstrand, Associate Professor & Caroline H. and Thomas S. Royster Distinguished Professor for Graduate Education, UNC Hussman School of Journalism and Media

Jordan Green, adjunct faculty, Journalism Program, Wake Forest University and staff reporter at Raw Story

Calvin L. Hall, Department Chair & Associate Professor, North Carolina Central University Department of Mass Communication

Pam Kelley, freelance journalist and former higher education reporter, The Charlotte Observer

Daniel Kreiss, Edgar Thomas Cato Distinguished Associate Professor, UNC Hussman School of Journalism and Media and Principal Researcher, Center for Information, Technology, and Public Life; Faculty Affiliate, Information Society Project at Yale Law School

Mandy Locke, adjunct faculty, Journalism Program, Wake Forest University

Trevy A. McDonald, Julian W. Scheer Term Associate Professor, UNC Hussman School of Journalism and Media

Erin Siegal McIntyre, Assistant Professor, UNC Hussman School of Journalism and Media

Kate Murphy, Higher Education Reporter, The News & Observer

Kate Sheppard, Senior National Editor, HuffPost, and Teaching Associate Professor, UNC Hussman School of Journalism and Media

Melanie Sill, founder, N.C. Local News Lab and former executive editor of The News & Observer

Praveena Somasundaram, Editor-in-Chief, The Daily Tar Heel

David Squires, Adjunct Lecturer, Journalism, N.C. A&T University

Ryan Thornburg, Associate Professor, UNC Hussman School of Journalism and Media

Kyle Villemain, Editor-in-Chief, The Assembly

Barry Yeoman, freelance journalist, Adjunct Instructor of Journalism and Public Policy at Duke University and Adjunct Instructor of Journalism, Wake Forest University

Phoebe Zerwick, Director of the Journalism Program, Wake Forest University

Dear Mr. Routh,

Thank you for your prompt reply.

We would appreciate a clarification around your statement that all public records requests must be filed at https://nextrequest.unc.edu.

The reason for our confusion is that your assertion that all public records requests must be filed at https://nextrequest.unc.edu is not grounded in North Carolina law.

This requirement introduces an unnecessary step in the records request process that, in our view, prevents government agencies from producing records "as promptly as possible” (see NCGS §132-6).

In 1999, a superior court in North Carolina found that state law does not permit “the interposition of a ‘gatehouse’ or ‘overseer’ between members of the public who desire access to public records and the custodians of public records.” (Dawes v. Buncombe County Board of Commissioners, 99 CVS 03497)

Although North Carolina law does not require citizens to make public records requests through a public agency’s preferred platform or medium (see NCGS §132-6.2(a)), we're happy to follow this process for the sake of expediently receiving the records.

So that we understand what will happen to our request after we submit it via the UNC NextRequest portal, would you be willing to describe to us your process for fulfilling this request after it appears in the portal system?

N.C. General Statute 132-2 defines the custodian of a public record as “the public official in charge of an office having public records.” If your office does have the documents we’re requesting then you would be a custodian responsible for producing these records for public inspection.

If you are not the custodian of the requested records, please supply the name and email address of the appropriate custodian.

Thank you again for your quick reply, and for helping us understand your response.

(This request is being redirected through the portal)

David Routh
Vice Chancellor for University Development
Office of University Development
University of North Carolina at Chapel Hill
P.O. Box 309
Chapel Hill, NC 27599-0309
drouth@email.unc.edu

June 18, 2021

Dear Mr. Routh,

Under the North Carolina Public Records Law, G.S. §132-1, we are requesting copies of the following:

* The signed Gift Agreement that resulted in changing the name of the UNC-Chapel Hill School of Media and Journalism to the Hussman School of Journalism and Media.
* Any signed Pledge Payment Agreement related to the signed Gift Agreement that resulted in changing the name of the UNC-Chapel Hill School of Media and Journalism to the Hussman School of Journalism and Media.

Because North Carolina law specifies requesters can obtain public documents "in any and all media in which the public agency is capable of providing them," please send the information in electronic form, and specifically in Excel (.csv) format where possible. As the law requires, please release all reasonably segregable nonexempt portions of documents.

We request a waiver of all fees for this request because this request is made as part of the process of news gathering and not for commercial use. Disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of government, namely the University of North Carolina.

State law requires that you respond to and fulfill this request "as promptly as possible." If you expect a significant delay of over three working business days in responding to and fulfilling this request, please contact me with information about when we might expect copies or the ability to inspect the requested records. Please provide records as they are processed.

If you deny any or all of this request, please cite each specific statutory exemption you feel justifies the refusal to release the information and notify me of the appeal procedures available to me under the law. If you contend that a responsive record contains confidential personnel information under North Carolina law, please redact the record for the purposes of protecting confidential information and produce the responsive portion of the record.

If you have any questions regarding this request, please contact us at 336-278-5506 or reply to this email address.

Thank you in advance for your facilitation of this request.

Best,

Brooks Fuller, Director, N.C. Open Government Coalition, Elon University

Bill Adair, Knight Professor of the Practice of Journalism and Public Policy, Duke University

Shannan Bowen, Executive Director, N.C. Local News Workshop, Elon University

Neal Caren, Associate Professor of Sociology, UNC-Chapel Hill

Paul Cuadros, Associate Professor, UNC Hussman School of Journalism and Media

Victoria Smith Ekstrand, Associate Professor & Caroline H. and Thomas S. Royster Distinguished Professor for Graduate Education, UNC Hussman School of Journalism and Media

Jordan Green, adjunct faculty, Journalism Program, Wake Forest University and staff reporter at Raw Story

Calvin L. Hall, Department Chair & Associate Professor, North Carolina Central University Department of Mass Communication

Pam Kelley, freelance journalist and former higher education reporter, The Charlotte Observer

Daniel Kreiss, Edgar Thomas Cato Distinguished Associate Professor, UNC Hussman School of Journalism and Media and Principal Researcher, Center for Information, Technology, and Public Life; Faculty Affiliate, Information Society Project at Yale Law School

Mandy Locke, adjunct faculty, Journalism Program, Wake Forest University

Trevy A. McDonald, Julian W. Scheer Term Associate Professor, UNC Hussman School of Journalism and Media

Erin Siegal McIntyre, Assistant Professor, UNC Hussman School of Journalism and Media

Kate Murphy, Higher Education Reporter, The News & Observer

Kate Sheppard, Senior National Editor, HuffPost, and Teaching Associate Professor, UNC Hussman School of Journalism and Media

Melanie Sill, founder, N.C. Local News Lab and former executive editor of The News & Observer

Praveena Somasundaram, Editor-in-Chief, The Daily Tar Heel

David Squires, Adjunct Lecturer, Journalism, N.C. A&T University

Ryan Thornburg, Associate Professor, UNC Hussman School of Journalism and Media

Kyle Villemain, Editor-in-Chief, The Assembly

Barry Yeoman, freelance journalist, Adjunct Instructor of Journalism and Public Policy at Duke University and Adjunct Instructor of Journalism, Wake Forest University

Phoebe Zerwick, Director of the Journalism Program, Wake Forest University

Dear Public Records Office,
In correspondence dated July 21, 2021, regarding our request #21-335, you wrote to our group, "There are no existing or responsive University records subject to disclosure under the North Carolina Public Records Act. This request has been fully processed and is closed."

We would like some clarification on your response. Your response can be interpreted one of two ways: 1) that there are no existing or responsive documents within the scope of our request; or 2) that there are responsive records, but they are not subject to disclosure because of a legal exemption or privilege under the North Carolina Public Records law.

The former amounts to a denial that records exist. The latter amounts to a denial to produce responsive records. We would like to know which is the position of the Public Records Office related to this request.

If you deny any or all of this request on legal grounds, please identify the records that exist and please cite with particularity each specific statutory exemption you feel justifies the refusal to release a record within the scope of our request. As the law requires, please release all reasonably segregable nonexempt portions of documents. Please also notify us of the appeal procedures available to us under the law.

We look forward to your response.

Thank you,
Brooks Fuller
Director, NC Open Government Coalition

Dear Public Records Office,

Thank you for your message. Your most recent message does not clarify your position with respect to the requested records. You restate that there are "no University records subject to disclosure under the North Carolina Public Records Act." This remains subject to multiple reasonable interpretations, including: 1) no responsive records exist that are within the scope of our request; 2) the University has responsive records, but the records are not subject to disclosure because of an applicable exemption; 3) responsive records exist, but they are not University records and thus the University is the custodian of the records. We would like you to accompany your denial with a written explanation of the basis of your denial and do so as promptly as possible (See N.C.G.S. 132-6.2(c)).

Please cite with particularity each specific statutory exemption you feel justifies the refusal to release a record within the scope of our request. If no statutory exemption exists, please provide the records.

As you know, the North Carolina Supreme Court has made it clear that the Public Records Law must be construed broadly in order to effectuate public policy in favor of open and transparent government. Exemptions and exceptions to disclosure under the Public Records Law must be strictly construed. The government bears the burden of establishing that an exception permits them to withhold records from public disclosure (Maready v. City of Winston-Salem, 342 N.C. 708 (1996)). In the interests of efficiency and transparency, please provide us with a written explanation regarding your denial of our public records request.

Brooks Fuller
Director, North Carolina Open Government Coalition

Public Records Office
University of North Carolina at Chapel Hill
Campus Box #6205
Chapel Hill, NC 27599-9050

November 12, 2021

Dear Public Records Office,

I write to follow up on several outstanding matters regarding public records requests filed with the University of North Carolina at Chapel Hill during the past five months. The Public Records Office has substantially complied with some of our requests. However, several requests remain unfulfilled or production incomplete or insufficient under the North Carolina Public Records Act. Below you will find a list of nine requests filed by the North Carolina Open Government Coalition and a coalition of partners from journalism, education, and the public interest sector from June 2021 to present. Each request is accompanied by a status update and/or follow-up, many of which require the attention of the Public Records Office or University counsel.

Request #21-328 (UNC-Chapel Hill Board of Trustees Calendars). The Public Records Office responded to this request on October 13, 2021 and produced two documents: 1) a series of screenshots from the Apple iPhone of an unidentified member of the Board of Trustees, and 2) copies of Clayton Somers’ calendar, presumably from a service such as Microsoft Outlook. This production is incomplete. We would like the Public Records Office to produce the calendars for each of the accounts requested in our initial public records request. Further, we request clarification regarding whose calendar is shown in the screenshots produced. Keep in mind that the nature of a public record is governed by the substance of the record and not the device on which it resides. Calendars showing a public official’s activities related to their service on the Board of Trustees are public records regardless of whether the calendars are on their personal devices or a device paid for by the University (See UNC School of Government, Text Messages as Public Records, https://canons.sog.unc.edu/text-messages-as-public-records/).

Request #21-329 (UNC-Chapel Hill Board of Trustee Phone Logs). The Public Records Office responded to this request on October 13, 2021 claiming that there are no responsive records. We take this response to mean that the Public Records Office is claiming that there are no phone records that document phone calls made by any publicly funded phone line for any member of the Board of Trustees. This would includeClayton Somers, who is a University employee with an office in South Building and who has a direct line at (919) 962-6331. Please confirm whether this is your position regarding the phone records.

Request #21-330 (UNC Agreements With NextRequest). The Public Records Office produce three purchase orders covering years 2017-2021. The Public Records Office did not produce any other contracts or related documents and did not produce any training materials related to UNC’s procurement of the NextRequest platform. Please confirm your position that UNC is not in possession or control of any training materials related to its initial purchase order in November 2016 and its training session provided by NextRequest.

Request #21-332 (UNC-Chapel Hill Instructions for Submitting Requests to Name Facilities and Units). This request was completed and documents produced on July 8, 2021.

Request #21-333 (Request for Responsive Documents to Prior Requests). This request was completed and documents produced on August 2, 2021.

Request #21-334 (Logs of UNC-Chapel Hill Public Records Requests). No documents were produced in response to this request. Our understanding of your position is that the Public Records Office maintains that all requests are processed through NextRequest and that there are no responsive records related to this request except those that you assert the Public Records Office would have to create or compile. We are asking for a copy of the underlying database upon which the NextRequest platform rests, which is a public record under N.C.G.S. 132-6.1. This does not necessitate the creation or compilation of a record. It merely necessitates the Public Records Office copying the database or making it open to public inspection as required by the Public Records Act. If you deny this request, please state so explicitly.

Request #21-335 (Hussman Gift and Pledge Payment Agreements). The Public Records Office has failed to respond to a substantive question regarding the basis of the denial of this request. Despite repeated request for clarification, the Public Records Office has responded that “there are no University records subject to disclosure under the North Carolina Public Records Act.” We sent a response on August 13, 2021 asking for the basis for your denial. The University continues to maintain that the records are not subject to disclosure, but will not cite a reason as required by the Public Records Act. Please cite some statute, case law or other substantive legal argument that permits the University to withhold these documents from production under a public records request. The public deserves to understand the University’s basis for its denial of these records.

Request #21-336 (Emails Between UNC Employees and UNC Public Records Office). This request was completed and documents produced on August 2, 2021.

Request #21-436 (Approval Documents for Monitoring of Hussman Faculty/Staff E-mail). We filed this request on August 12, 2021 requesting documents related to University approval to monitor faculty email after news organizations reported that University officials were indeed monitoring faculty email. The Public Records Office responded on November 11, 2021 that, “We are working to identify public records responsive to your request, but are unable to provide you with a specific time-frame for providing documents.” The Public Records Office has not fulfilled this request within a reasonable time as required by the Public Records Act. If the University has approved a request to monitor faculty email, records documenting that approval should be readily available and should take little effort to locate and produce. If the University did not document such approvals, please have a representative from the University or University counsel confirm so.

As a courtesy, we have filed this follow-up communication on the NextRequest platform via MuckRock. However, we would appreciate a direct response via e-mail at ncopengov@elon.edu especially where the University has declined to produce records, has produced incomplete records, or has failed to respond to a request within a reasonable period of time.

Respectfully,

Brooks Fuller
Director, North Carolina Open Government Coalition