THE OFFICE OF THE PRESIDENT

December 28, 1983

EXECUTIVE MEMORANDUM No. C-2

TO: DEANS, DIRECTORS, AND HEADS OF SCHOOLS, DIVISIONS, DEPARTMENTS, AND
OFFICES, AND REGIONAL CAMPUS CHANCELLORS

RE: DISCLOSURE OF UNIVERSITY RECORDS: PROCEDURES FOR USE IN CONNECTION
WITH THE "ACCESS TO PUBLIC RECORDS" LAW, AND IN RESPONSE TO THIRD-PARTY
SUBPOENAS

1. PURPOSE

A. Because Purdue University is a state institution, many of its files and
records are public in nature, and properly subject to inspection and
copying by members of the public. Over the years, informal procedures have
evolved at the various campuses through which interested persons have been
given access to various types of University records and information (e.g.
staff salary listings; financial reports; media access to newsworthy
campus events; etc). However, there are also many University records which
are confidential in nature as to which a privilege against public
disclosure properly can be asserted. Indiana for many years has had a
"public records" statute governing such matters, but the General Assembly
has now enacted a new statute dealing with this subject, which becomes
effective 1 January 1984. It is more complex than the former statute and
may be expected to present new issues and questions. Accordingly, this
memorandum provides centralized procedure for dealing with disclosure
requests arising
under the statute.

B. Like all other public and private entities, and individuals, Purdue
University, and its employee, are of course subject to the subpoena powers
of our state and federal courts. Through the issuance of subpoenas, third
persons involved in claims and lawsuits to which the University is not a
party, often seek to compel production of University records which they
consider relevant to the issues involved in such cases. Such third-party
subpoenas, like requests made under the "Access to Public Records" law,
may present issues of confidentiality and may also be subject to other
valid objections in some cases. Accordingly, this memorandum is also
intended to provide a centralized procedure, for reviewing and making
appropriate responses to demands for access to University records
presented through such subpoenas by third persons, in claims or lawsuits
to which the University is not a party.

(Procedures to be followed in responding to discovery requests in cases to
which the University and/or University officers or employees are directly
involved as parties are not within the scope of this memorandum and will
necessarily continue to be conducted pursuant to consultation with the
University's trial counsel.)

2. GENERAL SCOPE OF THE NEW "ACCESS TO PUBLIC RECORDS" LAW

The new statute (compiled as IC 5-14-3) is based on the premise that, in
general, the public is entitled to have access to, and to inspect and
copy, any public record. The term "public record" is given the following
broad statutory definition (but as noted below, many specific categories
of public records are not subject to mandatory disclosure):

". . . any writing, paper, report, study, map, photograph, book, card,
tape recording, or other material that is created, received, retained,
maintained, used, or filed by or with a public agency and which is
generated on paper, paper substitutes, photographic media, chemically-
based media, magnetic or machine readable media, or any other material,
regardless of form or characteristics." (IC 5-14-3-2)

The scope of the statute is sharply narrowed by the listing of six general
categories of public records which are expressly excepted from disclosure
requirements of the act, and 16 further categories which ". . . shall be
excepted . . . . at the discretion of a public agency". The six categories
of records which are expressly excepted form disclosure are as follows:

1. Records "declared confidential by state statute";

2. Records "declared confidential by rule adopted by a public agency"
possessing statutory authority to do so;

3. Records "required to be kept confidential by federal law";
4. "Records containing trade secrets";

5. Records containing certain "confidential financial obtained from third
persons; and

6. "Information concerning research (including actual research documents)
conducted under the auspices of an institution of higher education".

The 16 additional categories of records which can be excepted from
disclosure on a discretionary basis cover a wide range of subject matter,
and may be briefly summarized as follows (categories (v), (xii), and (xiv)
are listed here only for general information, since they are not
applicable to Purdue):

(i) Certain "investigatory records of law enforcement agencies".

(ii) The "work product'' of an attorney for a state agency, in
representing that agency or an individual.

(iii) "Test questions, scoring keys, and other examination data used in
administering a licensing examination, examination for employment, or
academic examination before the examination is given or if it is to be
given again."

(iv) "Scores of tests. . . if the person is identified and has not
consented to the release of his scores.

(v) Records as to negotiations involving certain state agencies, including
the Corporation for Science and Technology, with "industrial, research or
commercial prospects", but only during the negotiations.

(vi) Internal records (essentially memos) which contain "advisory or
deliberative material", involving opinions or speculations, and which are
communicated for the purpose of decision making.

(vii) Diaries, journals or other equivalent personal notes.

(viii) Certain portions of "personnel files of public employees".

(ix) Patient medical records if the patient consents; minutes of hospital
medical staff meetings.

(x) "Administrative or technical information that would jeopardize a
recordkeeping or security system."

(xi) Computer programs, codes, filing systems and software.

(xii) Records relating to "executive sessions" the Open Door Law.

(xii) Work product of the Legislative Services Agency.

(xiv) Work product of members of the general assembly and their "partisan
staffs".

(xv) Identity of a donor, if the donor requires non-disclosure.

(xvi) "Library records which can be used to identify any library patron".

Records covered by discretionary items (iii), (x), and (xii) above are
hereby absolutely excepted from disclosure by the Public Records Officer.
No disclosures will be approved in these categories.

The possible exception of the other discretionary items is to be given
appropriate consideration by the Public Records Officer (designated
below), in considering and responding to requests for disclosure of
records within such categories.

As provided below, all decisions as to disclosure or non-disclosure in
response to statutory requests are to be made only by the Public Records
Officer or his/her designated representatives, acting in the light of the
complete statute and the particular factual situation, with legal advice
and assistance if deemed necessary.

3. GENERAL SCOPE OF SUBPOENAS FOR PRODUCTION OF RECORDS:

Court rules of procedure permit parties to a lawsuit to obtain subpoenas
directing third persons, not parties to the lawsuit, to produce records
and document in their possession. However, in certain circumstances (such
as where the information sought is considered privileged or confidential,
or where gathering all the records requested would be unduly burdensome,
or where the rules governing the use of subpoenas have not been fully
complied with), subpoenas can be challenged by the persons to whom they are
 directed. To protect the interests of the University, and of any
University employee who is served with a subpoena, it is important that
the subpoena be promptly reviewed in the manner provided below, and a
decision made as to whether any challenge is appropriate, before any
response is made. As provided below, all such decisions as to the
appropriate responses to subpoenas are to be made only by designated
University officers, acting in the light of the particular legal and
factual situation presented, w
ith legal advice and assistance when necessary.


4. PROCEDURES TO BE FOLLOWED BY ALL UNIVERSITY PERSONNEL IN RESPONSE TO
ANY REQUEST FOR DISCLOSURE OF RECORDS UNDER THE INDIANA "ACCESS TO PUBLIC
RECORDS LAW"
A. The new "access to public records" law provides that a public agency
may designate a particular person ". . . . as being responsible for public
records release decisions". The person so designated for Purdue
University, with the title of Public Records Officer, shall be the Vice
President for Business Services and Assistant Treasurer. He or she may
assign other persons to assist in carrying out such responsibilities, and
to act as the designated Public Records Officer at campuses other than the
West Lafa
yette campus, or to so act in the absence of unavailability of such
officer.

B. The Public Records Officer shall be responsible for preparing an
appropriate uniform "Record Request'' form, to be used in all requests for
access to records.

C.  1. Any person who contacts a particular department in person or by
telephone to request access to any public records within such department,
should be advised that such requests are to be made in writing by filling
out a "Record Request" form, which can be obtained from the office of the
Public Records Officer.

    2. Any "Record Request" form, or any letter or other writing
containing a request for access to any public record, which is delivered
in any manner to any department, should immediately be taken to the
office of the Public Records Officer for review and response.

    3. Any person employed within any department of the University who has
any conversation with a party requesting access to any records within that
department should clearly state that such employee has no authority to
receive, grant, or deny any request for such access, and that any such
request should be submitted instead to the Public Records Officer.

D. The Public Records Officer, or an authorized representative, shall
review all Record Requests promptly upon receipt; shall identify and
review, to the extent deemed necessary, the records to which access has
been requested; shall consult with legal counsel of the University as to
any legal issues involved whenever such consultation is deemed desirable;
and shall prepare a response to the requesting party by the close of the
next business day following the day on which the request is received,
where rea
sonably possible, or as soon thereafter as is reasonably possible under
the circumstances of the particular request. If the response permits
access, in whole or in part, to the records described in the "Record
Request", the response shall include in formation as to where and when the
requested inspection may take place, and the charges for making
photocopies if so requested, which charges shall not exceed the
University's actual costs such copying. If the response denies access, in
whole or in part, to the
records described in such request, the response shall include a statement
of reasons for such denial.

5. PROCEDURES TO BE FOLLOWED BY ALL UNIVERSITY PERSONNEL IN RESPONSE TO
ANY SUBPOENA DISCLOSURE OF UNIVERSITY RECORDS.

A. Any University employee who is served with a subpoena requiring
production of any University records in any manner whatever, should
immediately notify the office of the Public Records Officer, and arrange
to forward the subpoena to such Officer for review. In no event should the
subpoenaed person undertake to comply with or respond in any way to the
subpoena without having so notified the Public Records Officer and without
having received instructions from such officer.

B. The Public Records Officer, or an authorized representative, shall
review all subpoenas demanding production of any University records
promptly upon receipt from the subpoenaed person; shall identify and
review, to the extent deemed necessary, the records which are the subject
of the subpoena; shall consult with legal counsel of the University as
deemed desirable, as to any legal issues involved, including procedures to
be followed in either complying with or filing motions to quash or modify
the subpoen
a; and shall give timely instructions to the subpoenaed person; all within
the relevant time constraints under the circumstances of the particular
situation.

Steven C. Beering
President