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Colleagues,

 

Are any of you struggling with how to handle discovery issues related to the use of personal phones for university use when employees are receiving a stipend for cell phones?  In particular, how would employees and the university handle requests for information on university activities conducted on personal phones as related to a FOIA request and subpoena? 

 

Our legal counsel believes that employees should proactively retaining records (text, email, etc.) associated with personal communication device use related to business activities.  In particular, it seems that producing records will be the responsibility of the employee, should a FOIA request be made or subpoena enacted.  On the flip side, it is the responsibility of the university, in legal counsel estimation, to indicate what records would be exempt from discovery (e.g. my text messages from my son, phone calls from partner, etc.) on personally owned devices. 

 

Do any of you have a policy or procedures to handle this?  Are your institutions seeking a measure of protection for employees so that personal records are not collected related to university activities?  A different interpretation? General thoughts?

 

Thanks in advance for your thoughts!

 

Sharon

 

Sharon P. Pitt
Interim Deputy CIO

Interim Executive Director, Technology Systems Division
George Mason University

http://www.gmu.edu

Executive Director, 4-VA

http://www.4-va.org


351 Aquia Building
MS 1B5
Fairfax, VA  22030
703.993.3548 (W)
703.993.1509 (F)
spitt@gmu.edu

Twitter@sppitt

https://itservices.gmu.edu/


 

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Comments

Hi,
I double-checked our legal opinion on this.  Our legal counsel specifically believes that the move to a stipend removed the obligation to keep records associated with personal communications.  The heart of the discussion is that under IRS rules, if the stipend is added to the employees' wages, and therefore the employee is taxed, then now individual communications records need to be kept.  If the structure is that employees are reimbursed, then the records need to be kept or attached to the reimbursement request.  One of the reasons we intentionally went with the stipend model here was to eliminate the need for the accounting, and hence the need for supporting documentation, creating a separation that does not put on in the position of providing this information on FOIA or subpoena requests.  We had a very public incident this spring and summer that tested this, and there were no issues with not having this information to respond to FOIA and subpoena requests.

Theresa



Sharon,

We had about 100 university owned phones prior to 2007 then moved all of them to employee owned phones and gave a stipend of about $40 per month (you can imagine how happy that made everyone). Two years ago we did away with the stipend entirely and there wasn't much if any push back from employees.  I am not sure how other departments deal with this but I put "availability via cell phone" as a requirement in their offer letter.  

Curtis

Curtis White
Vice President, Information Technology
Ashland University
Ph: 419.289.5777
Cell: 419.606.3582
Skype: cltrwhite


Excellent Theresa.  Thanks. 

 

Sharon P. Pitt
Interim Deputy CIO

Interim Executive Director, Technology Systems Division
George Mason University

http://www.gmu.edu

Executive Director, 4-VA

http://www.4-va.org


351 Aquia Building
MS 1B5
Fairfax, VA  22030
703.993.3548 (W)
703.993.1509 (F)
spitt@gmu.edu

Twitter@sppitt

https://itservices.gmu.edu/


 

From: The EDUCAUSE CIO Constituent Group Listserv [mailto:CIO@listserv.educause.edu] On Behalf Of Theresa Rowe
Sent: Friday, October 11, 2013 11:03 AM
To: CIO@listserv.educause.edu
Subject: Re: [CIO] Phones Supported Via Stipend - FOIA/Subpoena

 

Hi,
I double-checked our legal opinion on this.  Our legal counsel specifically believes that the move to a stipend removed the obligation to keep records associated with personal communications.  The heart of the discussion is that under IRS rules, if the stipend is added to the employees' wages, and therefore the employee is taxed, then now individual communications records need to be kept.  If the structure is that employees are reimbursed, then the records need to be kept or attached to the reimbursement request.  One of the reasons we intentionally went with the stipend model here was to eliminate the need for the accounting, and hence the need for supporting documentation, creating a separation that does not put on in the position of providing this information on FOIA or subpoena requests.  We had a very public incident this spring and summer that tested this, and there were no issues with not having this information to respond to FOIA and subpoena requests.

Theresa

 

Theresa -

Your response engendered some interesting conversation here.  I want to ask you for a hopefully quick clarification of one word within your post.  Specifically, you state that "… if the stipend is added to the employees' wages, and therefore the employee is taxed, then now individual communications records need to be kept."  Is it possible that you meant to say "no" instead of "now".  I read "now" to mean that you feel that employees now have to keep communication records.  Whereas, "no" would put your thinking in line with ours here at IC, that no personal records need to be kept if the stipend is paid as taxable income.  

Ah, the nuances of the English language.  Please advise, thanks.



Ed Fuller
Associate Vice President for 
Information Technology Services

Ithaca College
953 Danby Road | Ithaca, NY  14850
P: (607) 274-7000 | F: (607) 274-1484
efuller@ithaca.edu | http://ithaca.edu







On Oct 11, 2013, at 11:03 AM, Theresa Rowe <rowe@OAKLAND.EDU> wrote:

Hi,
I double-checked our legal opinion on this.  Our legal counsel specifically believes that the move to a stipend removed the obligation to keep records associated with personal communications.  The heart of the discussion is that under IRS rules, if the stipend is added to the employees' wages, and therefore the employee is taxed, then now individual communications records need to be kept.  If the structure is that employees are reimbursed, then the records need to be kept or attached to the reimbursement request.  One of the reasons we intentionally went with the stipend model here was to eliminate the need for the accounting, and hence the need for supporting documentation, creating a separation that does not put on in the position of providing this information on FOIA or subpoena requests.  We had a very public incident this spring and summer that tested this, and there were no issues with not having this information to respond to FOIA and subpoena requests.

Theresa



Oh, geez,not sure how that happened.  The actual quote from our attorneys, which we use for our procedures:

 

There are applicable IRS rules that talk about such issues relating to expense accounts, etc.  Under IRS rules, if the stipend is added to the employees’ wages and the employee is therefore taxed, then no records need be kept.  If the structure is that employees are reimbursed, then the records need to be kept (or attached to the reimbursement request).  And, based upon the foregoing, the purpose of the stipend mechanism at OU was to eliminate the need for the accounting of the bifurcation between OU and personal use, and hence the need for supporting documentation.




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