FOIA Management Guide for Colleges & Universities: COVID-19 Edition

September 13, 2021

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As the new school year begins the Delta variant is keeping most university operations up in the air while officials do their best to continue forward. There are new testing requirements, masking requirements, and some schools are continuing with remote hybrid models of classes both in-person and online.

When the pandemic hit in March 2020, college students were about to go on spring break. But faculty and staff didn’t get a break when they needed to quickly pivot to a remote model. How has COVID affected how universities operate? We sat down with UNC at Chapel Hill’s Senior Director for Public Records to talk about university records retention policies, what are considered public records and what isn’t, and how working remotely has changed the technology used on and off-campus. What this school year and beyond will look like can be answered by looking back on the last year. Questions about how operations have changed and what comes next can be answered by looking back on the last year.

Universities & FOIA During COVID

Unlike a number of government agencies, most colleges were prepared for the transition to remote work. University records officers made new recommendations for staff to keep records compliant with the introduction of new tools like Slack, Microsoft Teams and using email more frequently to communicate.

A key thing for faculty and staff to be aware of is their university’s record retention schedule, as well as what is and isn’t a record in terms of retention. Each school will have a different retention schedule, as public universities are subject to their state’s public records laws. So why do university employees need to keep records? Gavin Young, the Senior Director for Public Records at UNC at Chapel Hill, says, “For the most part, what needs to be retained is something that is relevant to your work as an employee, such as decision-making communication relevant to your work as an employee, you probably need to retain that. If it's just what I like to refer to as ‘transactional communication’, then it’s probably not something you need to retain.”

Young warns against doing university business over instant messaging channels like Slack or Microsoft Teams, so it can be more easily accessed in your email inbox or shared drive. An easy analogy to use is the equivalency of doing formal university business on official stationery with the college’s letterhead that contains a memo would be a record to retain as opposed to a sticky note left on a colleague’s desk telling them about the time of an upcoming meeting.

Another recommendation Young stresses on the faculty at UNC at Chapel Hill is to do document edits with colleagues using a shared drive like OneDrive, instead of emailing different versions of the same document back and forth. If a public records request comes in for emails pertaining to a subject with those documents, every document draft that is sent back and forth is subject to be included in the records request. However, if the attached document is simply in the OneDrive folder, it is only the most recent version of the document that will be included in the records request.

Shifting University Operations

It can’t be ignored that COVID-19 has changed the way schools have been run. In March 2020 just as spring break began, universities started pivoting their operations to a remote model for both faculty and students.

Many colleges and universities were left scrambling trying to find ways to collaborate when working from home. Department meetings, office hours, group projects, lab work, and other activities could no longer continue in person. Some schools, like the University of North Carolina at Chapel Hill, had been testing out remote learning and collaborating tools prior to the pandemic and were well prepared. Tools like Office365, Google Docs, Slack, and Zoom became essential to the new norm. Some internal university policies provided flexibility for different grading scales or time off for staff to avoid burnout. External proceedings, like fulfilling Freedom of Information Act requests, had to continue regardless of the pandemic.

Gavin Young, the Senior Director for Public Records at UNC at Chapel Hill, told NextRequest, “Our [North Carolina FOIA] law has stayed the same and the expectation has been that we continue to fulfill records requests and continue to maintain our responsibility under the statute. Here at Chapel Hill, we like to say we’re three hours from the beach and three hours from the mountains and I’ve long said that I suspected we could do public records from either of those locations.”

What Types of Records Requests Do Higher-Educations Get?

Public universities like UNC at Chapel Hill, the University of California at Los Angeles, the University of Washington, and the University of Minnesota are some of the top institutions in the United States with scientific research and published studies pertaining to the coronavirus. At the start of COVID-19, many of their public records requests had been targeted at the researchers and less so at the operational aspects of the college.‍

However, as institutions begin their third year of commencing classes during the pandemic, more requests are aimed at COVID procedures: testing, vaccination requirements and exemptions, masking routines, quarantine, and more. These requests are not only being fielded from parents and the communities in which the colleges reside, but also from journalists.

COVID’s Impact on State FOIA Laws

State colleges and universities receive funding from the states they reside in and are therefore subject to state FOIA laws. Initially, some states and government agencies made temporary changes to their public records laws, citing the pandemic as an extenuating circumstance for processing requests. In New Jersey, Gov. Phil Murphy signed legislation that eliminated deadlines for records custodians to approve or deny records requests. Philadelphia issued notices stating the city was “suspending the deadlines of all pending and incoming Right-to-Know requests until normal operations resume.” In March 2020, the Federal Bureau of Investigation was not accepting electronically submitted public records requests and advised requestors to submit written FOIA requests through the mail.

These excused deadlines and other waived statutes didn’t last long when the planned two weeks of nationwide lockdown continued through the spring into summer and beyond. On May 28, 2020, the Office of Information Policy issued guidance to federal agencies that the timeframes required for responding to records requests still applied despite the pandemic. Just as companies and universities had pivoted to remote work, the government also adapted. For example, the FBI is now accepting electronic submissions via their new eFOIPA submission portal. Temporary measures that were made as response exceptions for state agencies and in extension, state universities, have resorted to their original deadlines. Colleges and universities must be prepared to respond to requests in a timely manner despite extenuating circumstances like COVID infections.

Remote Work is the Way of the Future

The University of North Carolina at Chapel Hill was able to transition so easily to a remote working and learning environment because they had tested it out in 2019. Gavin told us, “Our volume slows down a bit in the summer, so… we implemented it [work from home] on a regular basis every Friday and it worked really well. In our old office setup, we were not in a space altogether and we had started using an instant message program at that time and it was really helpful for us to communicate on basic functions like checking in about who was going to take what requests, checking in on basic progress… routine questions but not decision making questions.”

During this remote work trial run, UNC was testing out Skype and Microsoft Teams for instant messaging purposes but now uses Slack. Young said that because UNC at Chapel Hill had had this chance to get a routine going prior to the pandemic, the transition to working from home has been so much smoother. As a result of COVID, he hopes that working remotely will continue to speed along document collection and has made everyone more comfortable with how records officers collect documents electronically.

“It’s only been two years, for example, since we’ve started collecting emails ourselves using the Microsoft See (C?) Discovery tool that’s included in Microsoft365 as opposed to begging individuals on campus to search their emails. Increasing people’s comfort level with that---and people being more comfortable with a Cloud situation, I think it gives you a more long-term shared document feeling. And I also think people just long-term are more comfortable working from home. I think it’s going to be something we do more and more in the future.”

Gavin sees that his staff in the Public Records department will be spending at least part of their time working from home beyond COVID-19.

Having a records request management system that can be accessed from any browser securely with built-in tools like redaction, automated routing, and task management is key to completing records requests, manageable and secure, even when working from home. Universities from New Mexico to North Carolina manage their public records requests with NextRequest’s FOIA software. Find out more at nextrequest.com/features.

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