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Kyle Potter, Published November 22 2013

Stenehjem: University System broke open records law over deleted emails

FARGO – It may forever be a mystery how 40,000-plus emails were deleted from North Dakota State University President Dean Bresciani’s account earlier this year.

In an opinion released Friday, Attorney General Wayne Stenehjem said the North Dakota University System office violated state open records laws by not coming forward with their cache of Bresciani’s deleted emails earlier, but said he can’t determine how and when they were deleted in the first place.

School officials have maintained for months that the president’s emails were wiped by a new auto-purge feature on the school’s email system. Staff in the North Dakota University System office – which oversees NDSU and the state’s 10 other public universities and colleges – say they were purposefully deleted before an open records request, as some state lawmakers have suggested.

Stenehjem dinged the University System office for not immediately obtaining backup files, which he said could have helped determine how emails were deleted sometime in the two weeks leading up to an open records request for Bresciani’s email.

“The only way to resolve this difference in opinion would be to know the exact date President Bresciani’s computer files were purged,” he wrote. “Without the back-up tape, this office has been provided only with contradictory opinions and theories.”

“I can categorically say ... the idea that Dr. Bresciani’s emails were intentionally deleted is not reflective of the official position of this office,” Larry Skogen, the interim chancellor, said in a statement. “I do not know what the former chancellor may have believed, but there is no evidence that Dr. Bresciani, or anyone else at NDSU, intentionally deleted emails after receiving an open records request.”

Bresciani did not respond to a request for comment on Friday.

The debate over how and when Bresciani’s emails were deleted became an extension of the ongoing battle between university presidents (and their allies) and former Chancellor Hamid Shirvani, plus his supporters in the University System office and the Legislature. After months of turmoil, Shirvani was ousted in June.

The months-long email saga started in late April, after The Forum published a story with excerpts of behind-the-scenes conversations between Bresciani and other university presidents about Shirvani and his policies. Those emails were obtained through an open records request. The Legislative Council made a similar request for emails on behalf of an unnamed legislator the next day.

After the request turned up fewer emails than expected, it was eventually revealed that a University System employee discovered on May 1 that more than 43,000 emails had been deleted from Bresciani’s account and slated for permanent deletion. The council asked Stenehjem to issue an opinion as to whether that deletion violated open records laws.

The only violation Stenehjem found was on the part of the NDUS, which he said “did nothing with the 43,604 emails and only provided the copies of the emails” more than a month after they were initially discovered by an IT staff member. He noted those emails were searched for messages responsive to the Legislative Council’s request – 1,950 pages of deleted emails were eventually turned over to the council.

Rep. Bob Skarphol, who said he was one of several lawmakers behind the Legislative Council’s request for an opinion, criticized Stenehjem’s opinion, which he said he felt ignored critical facts and individuals.

“Obviously he hasn’t done his job,” said Skarphol, a Tioga Republican and a fierce supporter of Shirvani in the Legislature. “To blame this on the system office is absolutely ludicrous.”

Skarphol noted that Stenehjem’s office did not interview Randall Thursby, then-chief information officer for the University System. Stenehjem’s opinion says Thursby and his office did not approach Microsoft to get backup tapes, despite an IT employee’s insistence.

Reached in Georgia, to where he has since retired, Thursby confirmed he had not been approached by the attorney general’s office and said “no backup tapes exist except for the files [of emails] themselves.”

The Legislative Council also asked Stenehjem to determine whether NDSU had gone too far in blacking-out names of students and others from Bresciani’s email. Despite Stenehjem’s insistence that the school’s redaction was legal, Skarphol said it “stretched the limits” of the law.

The opinion’s release brings a five-month-long process to a close, but Skarphol said it’s not the end. He emphasized that for an auto-purge feature to have been the culprit, Bresciani – or someone with access to his account – had to have clicked the delete button in the first place.

“There will be a great deal of work done on this,” Skarphol said.

Readers can reach Forum reporter

Kyle Potter at (701) 241-5502