A University of Texas System regent’s extensive requests for records from the University of Texas at Austin have been a point of interest for higher-education observers and legislators, who have scrutinized the regents during the legislative session. But the requests have also triggered internal strife between the system and its flagship institution, according to emails between UT-Austin’s chief financial officer and the Board of Regents’ general counsel.
The communications — obtained by the Tribune through an open records request — also reveal some of the legal questions prompted by Regent Wallace Hall’s requests.
In two messages, roughly one month apart in early March and April, Kevin Hegarty, the university’s chief financial officer and custodian of records, questioned the process through which Hall made some of his requests, the legal relationship between the board and the university officers, and even the regent's right to access privileged records.
Hall’s requests were not without purpose. Some of his findings prompted him to call for an investigation into the way in which the University of Texas Law School Foundation used to supplement university faculty salaries. But according to a March 7 email from Hegarty to Francie Frederick, the general counsel to the Board of Regents, it also created “an unanticipated hardship” for UT-Austin staff.
“I’m going to let the emails speak for themselves,” UT-Austin spokesman Gary Susswein told the Tribune when asked about them Friday.
Hegarty was responding to a note Frederick had sent asking if the university could send the system original documents to replace, as they had sent in some cases, copies of the records. Because of production delays, the university had already turned over some original documents in order to expedite their response to Hall's request, and he preferred examining those.
“If we can assist with transportation or in any other way that would be helpful, I will assign the two lawyers and other staff members in my office to assist,” Frederick offered.
The demand for original documents in lieu of exact copies apparently did not sit well with Hegarty. He told Frederick, “Providing you copies avoids the need for us to retrieve the originals from you when we receive requests for which the records may also be responsive.”
He also said, because original documents were being held at the system, that he felt “increasingly uncomfortable” telling people that their requests were being completely fulfilled. “Once they leave campus I have no idea whether any original documents have been removed,” he said.
Hinting at the deteriorating trust between the administrative offices of the board and the university, Hegarty turned down Frederick’s offer to help transporting the records. Hegarty said he did not want people “who are not familiar with them going through them.”
Before any further original copies were to be provided, Hegarty asked for advice from the general counsel to the system, which reports to the chancellor rather than the board, as Frederick does. “Because you are counsel to the Board I would not think that such legal advice could be provided [by] you to me," he asked her. "Am I correct?”
He did not get a response. Several boxes of the original documents turned over to the system have since been returned to UT-Austin, but that apparently did not cool things down.
Another, more formal letter was issued to Frederick on April 3, this one prompted by a phone call to a member of Hegarty’s staff from a member of Frederick’s staff verbally indicating that Hall had “strongly reiterated” a desire for UT-Austin to turn over their open record files for December 2012 and January 2013.
Hegarty demanded that all requests be directed to him in writing. He further demanded that, if the request is made as a matter of regent privilege rather than through the public open records process, then that request should be accompanied by a letter from a system lawyer ready to defend his handling of the records. Hegarty also called for a written explanation for turning over any information that might infringe on students’ privacy.
Hegarty is not the typical liaison to the board on legal matters. That would be Patricia Ohlendorf, the university’s vice president for legal affairs, who is copied on Hegarty’s March 7 email but otherwise is seemingly absent.
“Although not trained in the law or legal ethics, I do understand that an attorney is prohibited from advising two clients with potentially adverse interests,” Hegarty wrote, further distancing himself from Frederick. “As such, I do not feel that the Board’s legal counsel can also serve as my counsel and that of the UT Austin campus.”
Hegarty further questioned Hall’s right to have privileged access to the documents in question. “Regent Hall appears to be acting on his own behalf, and to my knowledge, is not acting at the request of the Board of Regents,” Hegarty wrote. “This raises a question about whether he should have access that exceeds that of the general public and/or the Legislature.”
He closed with a jab that would take on more resonance as, just days later, Board of Regents Chairman Gene Powell launched a since-abandoned attempt to withhold some documents from lawmakers. Hegarty wrote, “I do not want this or any correspondence to Regent Hall’s requests for records to be withheld from the public, if requested.”
Dan Sharphorn, the system’s interim general counsel, responded to Hegarty on Friday. Sharphorn, who is taking over for departing vice chancellor and general counsel Barry Burgdorf, reports to the chancellor rather than the board. The system has not made his response to Hegarty available, but Sharphorn responded to questions via email.
Sharphorn indicated that all future requests by the board or individual members would be processed through the chancellor’s office and be made directly to Hegarty by a system office designated by the chancellor. They will be in writing and include an expected timeframe for response. And Sharphorn’s office will advise Hegarty on issues related to documents covered by the Family Education Rights and Privacy Act, and “any other specific confidentiality.”
With regard to regents seeking records for their own edification, Sharphorn noted that the system has no rules that prevent such requests. Absent any specific laws, he wrote that individual members could have complete access “so long as they are acting in good faith in the performance of their duties as members of the Board.”
Those duties, as laid out in the Texas Education Code, are very broad, including the obligation “to govern, support, and maintain each of the component institutions.”
And Sharphorn observed, the regents’ rules specifically include the following passage: “Members of the Board of Regents are to be provided access to such personnel and information as in their individual judgments will enable them to fulfill their duties and responsibilities as Regents of The University of Texas System.”