Response to AG probe, account log off by 1,771 emails

FARGO – So just how many emails were deleted from North Dakota State University President Dean Bresciani’s account earlier this year?

Add that to the list of questions Attorney General Wayne Stenehjem may look into as his office reviews whether the deleted emails amount to a violation of state open records laws.

In a joint letter to Stenehjem’s office late Thursday, the top lawyers from NDSU and the North Dakota University System said they recovered 43,604 emails from Bresciani’s account that had been deleted – likely inadvertently, they said, by a new auto-purge function.

That’s 1,771 fewer than the 45,375 of Bresciani’s emails that were deleted, according to a log of his account performed by a University System employee and obtained by The Forum newspaper. The North Dakota Legislative Council also cited that number when asking Stenehjem for an opinion on whether open records laws were broken.

Why the discrepancy? Officials from both NDSU and the University System don’t have answers, but said Friday they’re looking into it. The attorney general’s office declined to comment on the differing numbers.

Marc Wallman, NDSU’s interim chief information officer, acknowledged the possibility there may be more missing emails out there than the school recovered.

And some of those unaccounted-for emails perhaps should have been turned over to the Legislative Council, which on April 29 requested Bresciani’s correspondence mentioning then-Chancellor Hamid Shirvani. Though he didn't express his concerns publicly, Bresciani criticized Shirvani in emails in the months before the final two years of the chancellor’s three-year contract were bought out for more than $900,000 in June.

“That (log of Bresciani’s account showing 45,375 deleted emails) would suggest there’s more information out there, but I don’t have it,” Wallman said. “There’s enough leeway in what that could mean that I can’t really speculate.”

On June 28 – about a week after the North Dakota Legislative Council request for an opinion – Assistant Attorney General Sandra Voller asked NDSU and the University System to answer several questions about what had been deleted from Bresciani’s account, and how.

The state’s open records law gives the public the right to inspect the correspondence – including emails – of all public officials, including university presidents such as Bresciani.

If Stenehjem determines the emails were deleted to avoid public disclosure, he could refer the matter to a state’s attorney for consideration of criminal charges, including a felony for destroying public records. There’s no timetable for Stenehjem’s opinion.

In his response that was also on behalf of University System General Counsel Claire Holloway, NDSU General Counsel Christopher Wilson wrote that “a snapshot of President Bresciani’s account” taken May 1 revealed 43,604 items in a folder that stores deleted emails for an extra 14 days before erasing them forever.

That snapshot was taken at 10:12 p.m. May 1, Wilson wrote – about 90 minutes after the email log that shows 45,375 deleted emails in Bresciani’s account.

NDSU took the 43,604 emails and ran a search to pluck out the messages the Legislative Council should have initially received.

Wilson wrote to the attorney general that the recovered emails “have the hallmarks of being the Microsoft ‘auto-purge’ process” because the most recent email is from March 29, a month before the Legislative Council’s request.

Microsoft implemented a new feature sometime in April that automatically dumps any emails in a user’s trash bin that are more than 30 days old. Email for North Dakota’s 11 public universities and colleges is outsourced to Microsoft.

An attorney for the Legislative Council, in asking for an opinion from Stenehjem, suggested that Bresciani’s emails were deleted after NDSU received the open records request from legislative staff, which was made on the behalf of an unnamed legislator.

By law, the opinion will be based on the responses from NDSU and the University System, not an independent investigation.

In his letter, Wilson wrote that University System staff can’t determine exactly when the emails were deleted because Microsoft had not yet turned on “the audit functionality feature.”

That function was activated May 2 – three days after the Legislative Council’s request for Bresciani’s correspondence.