How a Senator Turned Exxon Lobbyist Limits Access to His Public University-Based Archives

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Emails and documents obtained from Oklahoma State University (OSU) under the state’s open records law depict an arrangement in which former U.S. Sen. Don Nickles (R-OK) donated his U.S. Senate papers to OSU, a public university, but still maintains full control of the papers and who getsย permission to viewย them.ย 

A high-level staffer of Nickles at the time who was arranging the deposit of his records to OSU, GT Bynumย โ€” now running for Mayor of Tulsa, Oklahomaย โ€” wrote in a November 2004 email that a large part of the rationale for the set-up was โ€œbecause Senator Nickles is dramatically younger than your average retiring senatorโ€ and there exists โ€œpotential forโ€ฆsomething in the archive which might embarrass the senator, his staff, or aย colleague.โ€

Nickles, now 67 and principal of the lobbying firm Nickles Group, currently lobbies for ExxonMobil, Anadarko Petroleum, Exelon and other companies. He formerly served on the Board of Directors of Chesapeake Energy and currently serves on that of Valero Energy.ย 

This year alone, Nickles has lobbied for exports of gas obtained via hydraulic fracturing (โ€œfrackingโ€), expedited permitting for domestic oil and gas and other oil and gas-related policy issues on behalf of those threeย companies.

Don Nickles Archives

Image Credit: Oklahoma Stateย University

According to a 964-page inventory list provided by OSU, Nickles’ Senateย papers now warehoused at OSU‘sย Edmon Low Libraryย contain folder topics such as Interstate Oil and Gas Compact Commission (IOGCC) (this author’s original interest in the archives), theย Resource Conservation and Recovery Act (RCRA), federal lands issues (which generally center around energy production) and numerous oil-, gas-, petroleum- and coal- and climate-relatedย documents.

A previous DeSmog investigation revealed that Nicklesย played a vital role in securing the oil and gas industry’s exemption from U.S. Environmental Protection Agency (EPA) regulatory enforcement of RCRA as applied to the industry’s waste by-products. The RCRA loophole, the push for which was spearheaded by IOGCC, is now being challenged in federal court by the Environmental Integrity Project. The loopholeย can be tied directly to the proliferation of earthquakes caused by the waste by-products of fracking for oil andย gas.

The public can view none of these historical records and perhaps learn more about theseย pieces of history through the lens of Nickles’ papers, though, without the written permission ofย Nickles.

โ€œExemptions Have Not Beenย Madeโ€

Though stored at a public university, Nickles’ papers are not open for the public to view under anyย circumstance.

โ€œWhile we have Senator Nickles Papers in storage they have not been turned over to us for access,โ€ said David Peters of OSU‘s Edmon Low Library of the status of Nickles’ papers. โ€œIf you would like access to the papers you will need to contact Senator Nickles office requesting permission from him. He then sends us a letter authorizing your use. We will be happy to assist you once we hear from Senatorย Nickles.โ€

After learning of this arrangement, DeSmog contacted Nickles via his Nickles Group email address and received a response from his public relations assistant, Amy Lee of 133 Public Affairs. Nickles’ office denied DeSmog the opportunity to inspect hisย records.

In fact, Lee confirmedย no one has ever been allowed to view theย records.

โ€œExceptions have not been made to date and will not be made now,โ€ Lee, who formerly worked for Nickles as a Senator, wrote in anย email.

Exceptions are not made, it turns out, due to the contract signed between Nickles and OSU. The terms of that contract concerned some as it was being hashed out, the documents obtained by DeSmogย reveal.

OSU also denied access to the records when requested under the state’s open records law, saying the contract it had signed with Nickles has an exemption which can be found within theย statute.

The open records officer pointed to Section 24A.11 of the Open Records Act, titled โ€œConfidential Library, Archive, or Museum Materials.โ€ That clauseย permits public agencies to โ€œkeep confidential library, archive, or museum materials donated to the public body to the extent of any limitations imposed as a condition of theย donation.โ€

Theย Contract

The terms of the Nickles papers contract sat atย the center of the conversation between Nickles’ office and OSU.

It mostly came down to whether Nickles would give a deed of gift or would only sign off on a deposit agreement. Deeds of gift give most of the control over the archives to the institution receiving the gift, while deposits ensure full control by the depositor, in this caseย Nickles.

Nickles eventually chose to transmit his papers via a deposit agreement signed in December 2004 just as he left office and passed through the revolving door to become a lobbyist. His contract stated that he ultimately has the intention to make his papers a deed of gift โ€” but he also is not contractually bound by thatย intention.ย 

Don Nickles Archives

Image Credit: Oklahoma Stateย University

The deposit agreement further allows for Nickles to reclaim his papers at any time from OSU until he dies, as opposed to the conventional ten-year time period, giving him de facto total control of the recordsย stored at the public university. Nickles has yet to turn his deposit agreement into a deed ofย gift.

In an email, Jenniferย Pastenbaugh, then an OSU librarian and now employed by Brigham Young University (BYU), expressed โ€œalarmโ€ over the terms of the contract as it was being hashed out. Pastenbaugh said a deposit ย โ€” as opposed to a deed of giftย โ€” is something OSU had never done, making it โ€œuncharted territoryโ€ for the school’sย library.ย 

Pastenbaugh had a call with Bynum days later in which she expressed her concerns and those of OSU,ย and she debriefed her colleagues on what the two of them discussed in a subsequent email. Bynum had conveyed toย Pastenbaugh that Nickles’ desire for a deposit agreement and not a deed of gift centered around a then-pending piece of federal legislation (the bill number went unspecified in the emails) their office claimed they hoped wouldย pass.

At the time, a bill called the CARE Act (S. 476) had been introduced by U.S. Sen. Charles Grassley (R-IA) and awaited House approval, which it never got. Oddly enough, Nickles voted down the legislation that never passed through the U.S. House of Representatives and was one of only five Senators to doย so.ย 

Section 110 of the bill titled, โ€œEnhanced deduction for charitable contribution of literary, musical, artistic, and scholarly compositions,โ€ called for tax benefits for those who give their artistic, musical, literary and scholarly materials to public collections. This would have included the papers of members of the U.S.ย Congress.ย 

The contract also calls for Bret Bernhardtย โ€”ย former Nichols chief-of-staff and now executive vice president of the influential right-wing think-tank, Heritage Foundation โ€”ย to serve as the โ€œdesignated representative in the administration of thisย Agreement.โ€

Despite the terms of the deal being stacked in favor of Nickles, OSU promised from the get-go that the Senator would receive pristine handling of hisย papers.ย 

Image Credit: Oklahoma Stateย University

University of Oklahoma, the state’s flagship university, actually only does deeds of gift and not deposit agreements for its Carl Albert Congressional Research and Studies Center. Carl Albert maintains archives for the papers of dozens of former members ofย Congress.ย 

โ€œWe require a deed of gift. That is pretty standard in archives across the country,โ€ said Cindyย Rosenthal, the director and curator of the Carl Albert Center. โ€œThe terms of a deed of gift may vary widely depending upon the donor. An archive is taking on a responsibility in perpetuity and therefore is making a long-term financial commitment to the care and maintenance of aย collection.โ€

โ€œIt Can Breedย Mistrustโ€

Unlike the president under the National Archives and Records Administration and the laws falling underneath its umbrella, members of Congress are not required to make their papers open to the public once they leave office and do so on a voluntary basis. Furthermore, unlike most executive branch agencies, their records are not subject to the Freedom of Information Act (FOIA).

Put another way, Congress has carved out a total exemption for itself with regards to its records serving as a primary source repositoryย of history, closing them off to the public for review. Adding to the labyrinth, IOGCC also has claimed an exemption to state- and federal-level open recordsย law.ย 

The Society of American Archivists, the professional organization for U.S.-based historical archivists, writes in its โ€œGuidelines for Access to Original Research Materialsโ€ that โ€œThe repository should discourage donors from imposing unreasonable restrictions and should encourage a specific time limitation on restrictions that areย imposed.โ€

Bill Young, president of the FOI Oklahoma, also sees the dynamics in this particular case asย problematic.

โ€œOfficials may be following the letter of state or federal law when they elect to restrict access to particular government information, but there is often a price to pay for that, because it makes the public question the integrity of their government, and it can breedย mistrust.โ€

Photo Credit: Wikimediaย Commons

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Steve Horn is the owner of the consultancy Horn Communications & Research Services, which provides public relations, content writing, and investigative research work products to a wide range of nonprofit and for-profit clients across the world. He is an investigative reporter on the climate beat for over a decade and former Research Fellow for DeSmog.

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