Last updated on 2014.01.10
Northern State University has been raising some challenges to accessing records relating to the state's EB-5 program, which operated on the NSU campus under the banner of the South Dakota International Business Institute until the end of 2009. But in response to an ongoing public-records request, Northern State University President James M. Smith appends one important paragraph concerning EB-5 coordinator Joop Bollen's handling of state records:
Joop Bollen resigned his employment at NSU on December 21, 2009; he took virtually all records in his office relating to his EB-5 activities with him and he requested no permission of NSU to do so [Dr. James M. Smith, president, Northern State University, letter, 2014.01.06].
Read those words carefully:
- Joop Bollen was a Northern State University/Board of Regents employee.
- As a Regental employee, Bollen created and curated many documents.
- Documents created by Regental employees belong to their employer, the Board of Regents. (See BOR Policy 4-34 on Intellectual Property... or if you're really picky, go see BOR Policy 4-34 as it existed on December 21, 2009, before the Regents next amended that policy, at their August 11, 2011 meeting.)
- When Bollen stopped working for NSU/the Board of Regents, Bollen took state records that weren't his to take.
Documents created by Regental employees are also subject to the BOR Record Retention Regulations. Among those regulations is REG-23 on Correspondence, Federal, which one would assume comprised part of the records of a federally authorized immigration-related program:
This series contains both copies and originals of letters and memorandums sent to and received from any federal agency. This record series is maintained for reference and possible use when federal litigation, claims, or audits are pending. This record series is an open record.
RETENTION: Retain 1 year in office, then transfer to storage for 3 years. Destroy after 4 years provided all litigation, claims, and audit findings involving the records have been resolved and final action has been taken.
(Note: When litigation, claims, or audits are complete maintain for an additional 3 years, then destroy.)
[South Dakota Board of Regents, Records Retention and Destruction Schedule, REG-23, revised 2012]
You'll need to pay me $73.30 an hour (that's what NSU claims for legal fees) to page through the files and figure out if the records retention policy in effect on December 21, 2009 was significantly different from the current policy cited above. But Dr. Smith does not appear to have designated Bollen's garage or storm shelter as an official NSU records storage site.
If the above records retention policy does apply, then arguably, now that it's 2014, NSU would have disposed of those records, anyway. But consider: Governor Dennis Daugaard ordered an audit of the Governor's Office of Economic Development on November 27, 2013. That audit covers GOED activities back to Fiscal Year 2010. SDIBI worked with GOED (then the Department of Tourism and State Development, DTSD) in Fiscal Year 2010. GOED's activities with SDIBI during its last six months of work are thus subject to that audit. REG-23 says don't throw out documents subject to audits...
...all of which means that, under REG-23, whoever runs the NSU paper shredder would have gotten a memo on or about November 27, 2013, telling them hold off on their normal shredding of four-year-old records on campus that might relate to GOED.
But records relating to GOED in the SDIBI office are no longer on campus, thanks to the error—or foresight?—of Joop Bollen.
Whether Bollen's removal of files is tied to the "records gap" GOED investigators have encountered is an open question. But there's little question about the impropriety of removing state records from a state facility without state permission.