Univ. of Illinois fails to explain missing Salaita memo

Phyllis Wise, former chancellor of the University of Illinois at Urbana-Champaign. (Ronald Woan/Flickr)

On 9 October, the Public Access Bureau of the Illinois attorney general’s office asked the University of Illinois to respond to my complaint regarding its failure to locate a “two-pager” about Steven Salaita that I had requested under the Freedom of Information Act.

Salaita had been hired by the university for a tenured position in the American Indian Studies program, but he was fired last summer after an outcry by pro-Israel donors and activists over his tweets critical of Israel’s massacre in Gaza.

The university sent its response on 24 October, in the form of a letter from its Chief Records Officer Thomas Hardy, and a sworn affidavit from Phyllis Wise, chancellor of the university’s Urbana-Champaign campus (the documents are attached below).

I sent the letter below to Assistant Attorney General Steven Silverman in response to the university’s submissions. Separately, Salaita this week filed a lawsuit against the university alleging that it is wilfully refusing to release emails related to his case in violation of the Illinois Freedom of Information Act.

Letter to the Public Access Bureau

3 November 2014

Sent via US Postal Service and Email

Mr. Steven Silverman
Assistant Attorney General
Public Access Bureau
Office of the Attorney General
500 South Second St.
Springfield, Illinois 62706
**********@atg.state.il.us

RE: FOIA Request for Review – 2014 PAC 31467

Dear Mr. Silverman,

I received, on 1 November, your letter dated 27 October, regarding my above referenced request for review. I am writing to exercise my right of reply.

In a 9 October letter to Mr. Thomas Hardy, Chief Records Officer of the University of Illinois, you determined that my request for review into the university’s failure to produce a “two-pager” handed to Chancellor Phyllis Wise about Dr. Steven Salaita warranted further inquiry.

You asked Mr. Hardy to provide “a detailed description of the measures taken by the university to search for the requested record, including a description of the specific recordkeeping systems that were searched and the specific individuals who were consulted.” You also asked Mr. Hardy to “explain the manner in which the university maintains records received by the chancellor and how it concluded that it does not possess the record in question.”

With your 27 October letter to me, you enclosed the response from the university, which includes a letter from Mr. Hardy, dated 24 October, and a sworn affidavit from Chancellor Wise, dated 23 October.

I had hoped that these documents would provide a full and frank response to your request and to my concerns, but this was sadly not the case.

The university’s response raises a number of important and troubling matters that I believe require further action from your office.

Failure to find the “two-pager”

In her affidavit, Wise acknowledges receiving the record in question – the “two-pager” – from an individual she does not name, at a meeting on 23 July, in the course of her conduct of official business on behalf of the University of Illinois.

She affirms that her “duties as chancellor include engaging in activities for the financial stewardship of the University of Illinois, including meeting with donors and potential donors.”

Wise acknowledges that in the course of the meeting, the individual spoke to her about a university hiring decision that was within her remit to forward to the Board of Trustees for final approval – the appointment of Dr. Steven Salaita. Wise declares that the individual “said he had reviewed a number of statements by Dr. Salaita on social media which he considered to be anti-Semitic and hateful in nature.”

She acknowledges that this individual “provided me with two pages of printed material regarding Dr. Salaita’s statements on social media.”

It is a matter of public record that subsequent to this meeting, Wise rescinded the appointment of Dr. Salaita. This also came after an organized campaign of external pressure expressing what the News-Gazette termed “donor fury” (“[Salaita prompted donors’ fury],” News-Gazette, 2 September 2014).

“To the best of my recollection,” Wise asserts in her affidavit, “these two pages consisted of an article or a printout from a website. I do not recall the website or the materials beyond that other than recalling that none of the information contained in the material was new to me.”

Wise acknowledges that “in a written summary of that meeting provided in an email to my staff later that evening, I referred to these two pages of printed materials.”

Recall that in that email, dated 24 July, Wise wrote that the individual “gave me a two-pager filled with information on Steven Salaita and said how we handle this situation will be very telling.”

In her affidavit, Wise describes her attempts to locate the document:

“I have conducted, along with my staff, a careful review of all of my office files as well as any home files that relate to the transaction of university business, and I have been unable to locate the two pages of printed materials referenced in my email.”

She adds: “In the regular course of my activities on behalf of the university, it is not my normal procedure to maintain a file of all printed materials I receive from third parties. It would have been unusual in my practice and experience to have saved a copy of these printed pages, especially considering they did not contain any new or unique information.”

Finally, Wise states, “I am not aware of anywhere that these printed pages could be located other than the diligent search I have conducted along with my staff.”

Chancellor Wise makes these declarations in her affidavit “under penalty of perjury.” Yet this response is inadequate in a number of respects.

Wise’s response indicates that, as one of the highest officials of the university, she does not apparently maintain an orderly system for the preservation of public records that may or may not also be state records.

Moreover, Wise’s affidavit and Hardy’s letter are completely unresponsive to your request to “explain the manner in which the university maintains records received by the chancellor.”

Wise states, for instance: “It would have been unusual in my practice and experience to have saved a copy of these printed pages … .”

But nowhere does she state what her usual practice is.

She does not, for instance, make any declaration to the effect that she made a determination according to established recordkeeping procedures that the record did not need to be preserved and therefore disposed of it lawfully. She simply wants us to accept that she has no clue where it went and to be satisfied with that answer.

How is it possible that Wise can simply lose records handed to her in a high-level meeting with a major donor or potential donor? Were there any other records produced from that meeting? Did she take notes? Did she receive any other documents? Did those documents survive? Did only the “two-pager” go missing? If so, how did the “two-pager” become separated from any other records potentially produced by that meeting?

It is simply impossible to believe that Wise can exercise her lawful duties under the Freedom of Information Act and the State Records Act without a basic system of recordkeeping in which all records collected in the course of meetings with major donors or potential donors are maintained until they can be systematically assessed to determine whether they are appropriate for preservation.

While Wise is undoubtedly a busy person, it is difficult to believe that she has so many meetings with donors, or that these meetings produce so many records, that her office cannot maintain a simple file-keeping system to preserve these records until such time as they can be properly assessed or made available to the public.

Moreover, in this specific case, Wise already knew that her decision over Salaita would be closely watched and would likely have profound implications. Indeed, the suggestion in her email of 24 July is that she understood that it would have fundraising implications for the university.

Despite her apparently chaotic and unsystematic manner of handling records, Wise should have taken special care to preserve all the records from this meeting.

Attempt to minimize potential significance of the record

As noted above, Wise describes the requested record in terms calculated to minimize its potential influence on her decision-making over the Salaita hire: “these two pages consisted of an article or a printout from a website. I do not recall the website or the materials beyond that other than recalling that none of the information contained in the material was new to me.”

I find the timing and circumstances of this statement – in a sworn affidavit given only after the intervention of the Office of the Attorney General – to be troubling and suspicious in light of the following facts.

I received a letter from Mr. Hardy on 18 September informing me that the record I requested under FOIA could not be located and inviting me to contact his office with any questions.

As a member of the media who had been covering the Salaita matter closely, I took that invitation for engagement in good faith.

That same day, I wrote to Chancellor Wise and to Mr. Hardy posing the following questions:

  • Who gave you the document?
  • Did the person who gave you the document tell you who prepared it?
  • Did the document bear any indication of who prepared it, whether an individual or individuals or an organization?
  • From your best recollection, please characterize the contents of the document.
  • Did you share the document with anyone else?

Although my query was acknowledged by Virginia Hudak-David, associate director for University relations, I never received any further reply.

If Chancellor Wise considered the record to be so insignificant, why could she or the university relations staff not have given me a simple and straightforward answer at the time of my inquiry? It is only now that we have reached this point that Wise is eager to describe the document as nothing more than an inconsequential “printout.”

Wise has an obvious self-interest in minimizing the significance of the record in order, perhaps, to present it as falling outside the remit of the State Records Act and regulations concerning university records. Given this interest, Wise’s belated characterization of the document in these terms should be treated with skepticism.

In light of this, the presumption should be made that the record should have been preserved at least until such time as another party could determine impartially whether it was appropriate for preservation.

Significant public interest

My interest, as a citizen of Illinois and a member of the media, is in collecting all evidence regarding individual and organized efforts to influence a hiring decision of the University of Illinois. All such records are potentially significant and may contain information whose value only becomes apparent when combined with information from other sources.

Previous public records releases, reported in the media (see News-Gazette story cited earlier), have revealed that once the organized campaign against Salaita had begun, Wise was willing to reorganize her schedule to meet with at least one major donor specifically to discuss the Salaita matter prior to her taking the decision to rescind his appointment.

In light of this revelation, Bruce Rosenstock, University of Illinois religion professor and president of the Campus Faculty Association, commented to the News-Gazette that the university should never allow any donor to have any say whatsoever over the nature of a hire or their philosophical or political viewpoints.

“If any donor told a faculty member in the Jewish Studies program that they will give money but they want veto power over who is hired, we would reject the money no matter how large a sum it is,” Rosenstock added. “I would hope that any university administrator would tell a donor who wishes to influence the university about a hiring decision it has made that it is inappropriate for that individual to attempt to influence in any way whatever.”

Rosenstock said that Wise ought to have responded to all donor contacts regarding Salaita with something like, “It’s inappropriate for donors to have any influence on hiring and dismissals. Respectfully, Phyllis Wise.”

But that is not what Wise did and the extent to which donors had an influence remains a matter of the utmost public interest. I therefore believed and I still believe that the missing record may have contained information that could have assisted my inquiries.

Chancellor Wise’s decision to reverse the appointment of Dr. Salaita remains a matter of enormous statewide, national and international controversy. It raises serious questions about First Amendment rights and academic freedom, the inappropriate influence of donors on hiring decisions, the use of vague and arbitrary standards of “civility” to enforce political conformity, and the inappropriate role of trustees – who are political appointees – in overruling decisions made by academic units.

These matters will likely not be resolved for years to come and are likely to have a high cost for individuals, the University and the State of Illinois.

Chancellor Wise is the official primarily responsible for the Salaita decision. It is a matter of public record that, as a consequence of her decision, thousands of scholars from other universities have pledged to boycott the University of Illinois, leading to the cancelation of numerous conferences and lectures; and the faculties in more than a dozen departments have voted no confidence in the chancellor, president and the board of trustees.

The damage done to the university and to Illinois is likely to continue to mount. And yet, through all of this, Chancellor Wise has failed to offer a clear and transparent accounting of the reasons for her decision.

Wise herself has acknowledged the lack of a proper process, stating on more than one occasion that she should have consulted more widely before taking the descision to rescind Dr. Salaita’s appointment (see for example, “[University of Illinois chancellor: Hiring process should change],” Associated Press, 4 September 2014).

At the very least, citizens ought to be able to avail of their right to access information that could help them to understand these decisions.

Remedies

My concerns now go beyond the “two-pager.” I now fear that other records relevant to this and other matters may be at risk of loss given the university’s inability or refusal to describe – as you requested – “the manner in which the university maintains records received by the chancellor.”

I therefore request that you use your mandate to its full extent to take specific actions to address these matters, including:

  • Determining whether Chancellor Wise and other university officials should preserve records produced in the course of meetings with major donors seeking to influence university decisions, and whether failure to do so violates the law or the public trust;

  • Ensuring that the university take all necessary steps to prevent the destruction or loss of any other records related to the Salaita matter, especially those that may shed light on efforts by donors or other parties to influence hiring decisions;

  • Assisting me and other members of the public to obtain full disclosure from the University of Illinois of all public records related to the Salaita matter;

  • So that there is proper accountability and transparency in future, ensuring that the university institutes, implements and publicly discloses as soon as possible a process for maintaining and properly assessing public records received by the Chancellor in the course of her duties.

Sincerely,

Ali Abunimah

cc: Thomas Hardy, Executive Director and Chief Records Officer, Officer for University Relations, University of Illinois

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Comments

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The circumstances also raise the issue of possible spoliation of evidence in "reasonably foreseeable" litigation, such as a wrongful discharge suit by Prof. Salaita:

"The duty to preserve evidence begins when litigation is 'pending or reasonably foreseeable.' Thus, '[s]poliation refers to the destruction or material alteration of evidence or to the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation.' This is an objective standard, asking not whether the party in fact reasonably foresaw litigation, but whether a reasonable party in the same factual circumstances would have reasonably foreseen litigation."

Micron Technology v. Rambus, 645 F. 3d 1311 (Fed. Cir. 2011), http://scholar.google.com/scho...

Sanctions can be imposed on the party who destroys evidence, ranging from an adverse inference that the destroyed evidence should be regarded as harmful to the destroying party's position to default judgment. (The case law on spoliation of evidence is fairly uniform throughout the federal and state courts.)

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Chancellor Wise states, in regard to the "two-pager", "none of the information... was new to me." This implies that either she was independently reading Steven Salaita's tweets during the war on Gaza or that someone (maybe a donor---maybe not) had already taken this information to her. How come this information was not new to her? I'm not willing to claim that Cary Nelson was the culprit in this regard, but, in truth, he has admitted to following the course of Salaita's appointment process way BEFORE the summer tweets which ostensibly got him "fired."

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A law abiding and fully ethical m.o. (method of operating) is key to respect of and for any and all state and private universities. Lobbying of massive numbers of politicians by AIPAC is egregious, and Chancellor Wise's decision making re. Salaita's firing, lack of respect by Wise of Rule of Law, i.e. lack of understanding of need to preserve evidence in what should have been reasonably considered a pending legal action, and Wise's current unwillingness to truthfully co-operate and respond to viable inquiries re. Salaita's firing, is extremely disturbing.

This firing of Salaita sets an anything but good example for students re. responsible, proper, ethical conduct needed in their years to come.

Ali Abunimah

Ali Abunimah's picture

Co-founder of The Electronic Intifada and author of The Battle for Justice in Palestine, now out from Haymarket Books.

Also wrote One Country: A Bold-Proposal to End the Israeli-Palestinian Impasse. Opinions are mine alone.