The Seemingly Endless Repercussions of the Katehi Affair

Endless

We have received the following communication from the UC-Davis Academic Senate dated August 15, 2016:

Academic Senate Members

University of California, Davis

RE: Non-Consensual Access to Electronic Communications

Dear Colleagues:

During the course of the investigation of Chancellor Katehi, the UCOP Office of Ethics, Compliance and Audit Services asserted that under the University audit policy they had the right to non-consensual access to the entire Senate Chair email account to conduct their own search of Senate communications regarding the Chancellor. I had earlier complied with a request for communications and {sic of?} three members of the UC Davis administration, but I refused to consent to full access to Divisional Senate records and UCOP declined to authorize an additional request from the President’s outside investigator for full access.

At my request, Academic Council Chair Dan Hare asked Chief Legal Counsel Charlie Robinson to give an opinion as to whether investigations of policy violations are considered “audits” within the meaning of the Internal Audit Management Charter and describe the circumstances under which non-consensual access to Senate records may be obtained. To date Mr. Robinson has not fully answered the inquiry and is analyzing Regents policy.

In my opinion the potential for nonconsensual access to confidential Senate communications undermines the functioning of the Senate and therefore the practice of shared governance. For that reason I proposed the following resolution to the Academic Council which was adopted at the July 27, 2016, council meeting and communicated to the President on August 10, 2016:[1]

WHEREAS:

Shared governance with the Academic Senate is a cornerstone of the University of California; and The expectation of privacy in internal communications among members of the Senate is fundamental to the effective functioning of the Academic Senate,

BE IT RESOLVED THAT:

A search of the electronic records of the Academic Senate, a Divisional Senate, or of any committee thereof without consent is an extreme and excessively intrusive measure. It is warranted only in the most extraordinary circumstances and is to be avoided whenever possible, even if permitted by the Electronic Communications Policy or other University policy. No non-consensual search of such electronic records should be undertaken without notice and consultation with the Chair of the Academic Council, or, in the case of a search involving a Division of the Academic Senate, the Chair of the affected Division.

To date there has been no response from the President’s office. I bring this matter to your attention to make the faculty aware that under the auspices of the University audit policy, a question is pending as to the standards and procedures for non-consensual access to Senate e-mail records.

Sincerely,

André Knoesen
Chair, Academic Senate
Professor: Electrical and Computer Engineering
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[1] Note this resolution relates to access of records of the Academic Senate and its committees. Under UC Davis policies, access without consent to electronic records of a UC Davis faculty member, as defined in APM 110-4(14), requires that the Provost & Executive Vice Chancellor must consult, in writing, with the Chair of the Academic Senate prior to approving access or inspection of electronic records without consent (http://manuals.ucdavis.edu/PPM/310/310-24b.pdf). Other UC campuses do not have such a requirement. It is not clear what impact the Davis policy would have if non-consensual access to a Davis faculty member’s electronic records were sought by OP auditors or others in OP.
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Note: This is probably a good place to remind our blog readers that you should not think of your emails as "private," particularly if you are at a public university. Even if you use some outside service such as gmail, you likely will communicate with folks at public universities. And, in any case, any email you send to anyone can be forwarded - deliberately or inadvertently - to someone else with a press of a key.