Bowling Green State University has rejected the Register's public records request for photographs of a controversial sculpture removed from the Little Gallery at BGSU Firelands.
The university's response raises questions about whether university officials are complying with the school's policy for keeping public records, says a Cleveland attorney who is an expert in public records.
All state agencies, such as BGSU, are required by law to establish a reasonable policy for keeping public records, and to set up a schedule for disposing of old records that are no longer needed, said David Marburger, a Cleveland attorney who specializes in media issues and represents the Register.
The Register sent a public records request on March 27 to BGSU, asking for copies of images of "The Middle School Science Teacher Makes a Decision He'll Live to Regret" by sculptor James Parlin. The sculpture has been described as implying a female figure performing an act of oral sex upon a male figure.
The university responded that any images it has are not a public record.
"The University does not have a public record of any images of 'The Middle School Science Teacher Makes a Decision He'll Live to Regret' in its possession," Dave Kielmeyer, Bowling Green's senior director of communications, replied in a written statement. "You may wish to contact the artist, James Parlin, to request an image."
Kielmeyer wrote that the photographs submitted to the University as part of the exhibit application process were returned to Parlin by professor David Sapp, the gallery director.
"The only images that the University does have of the sculpture are privileged attorney work product which are not public records subject to disclosure," he stated. "There are the photographs that Mark Gromko (the university's interim provost) and our legal counsel reviewed. The photos were taken by Dean Smith with his cell phone at the request of the legal department."
Marburger said when a public office receives an application for something, the office cannot return or destroy it unless the office has a records retention schedule.
He said he does not understand the explanation, either, that the cell phone photographs are "privileged attorney work product." That usually refers to work being prepared for a trial, so it would not apply in this case unless the school had been sued, he said.
"Privileged attorney work product" usually means work produced by an attorney, not a university official such as interim Dean James Smith, said Tim Smith, a public records expert at Kent State University's Media Law Center.