A group of Wyoming news organizations largely prevailed in a lawsuit against the University of Wyoming to shake loose public records related to the dismissal of former UW president Laurie Nichols, records the outlets contended were improperly withheld.
In a 55-page ruling filed Friday, Albany County District Court Judge Tori Kricken ruled that the vast majority of the records sought by the Casper Star-Tribune, WyoFile and others will be released with some redactions to protect sensitive personal information. She wrote that 18 documents be withheld in full because they met an attorney-client standard.
“There is a well-known expression applied to those in public office, ‘If you can’t stand the heat, you’d better stay out of the kitchen,’” Kricken wrote, quoting another court case.
She rejected a number of UW’s overarching arguments for blocking release of records related to the Nichols decision, which was made in March and shocked both campus and Nichols.
“Quite simply, public figures, especially those who, by nature of their position, are subject to increased scrutiny and notoriety … (and) have a decreased interest in privacy,” Kricken wrote.
The judge also ruled in favor of the organizations on their request for the university to provide a log of withheld documents that detailed why they couldn’t be released. The university had refused to provide such a log.
UW had made sweeping use of attorney-client privilege to avoid disclosing communications among UW board members. But the inclusion of UW general counsel Tara Evans on communications with board members does not “automatically make the communication privileged,” Kricken wrote. She ordered the release of most of those records.
The judge ruled against the news organizations on the question of whether fees charged by the university to produce records were reasonable. UW charged more than $700 for a Star-Tribune request made in the spring.
The Star-Tribune, WyoFile, the Wyoming Tribune Eagle and the Laramie Boomerang filed the lawsuit in June. The Wyoming Press Association declined to join the effort. Originally, the suit was between the outlets and UW, but in October, Nichols intervened, largely agreeing with UW and asking that the records not be released.
Cheyenne-based attorney Bruce Moats, who represented the news organizations, called the ruling “a victory for the public.”
“It’s not a victory for these news organizations really because what makes what they do valuable is that they make this information available to the public so the public can evaluate by themselves,” he said.
“This is a courageous decision by the judge that democracy should persist,” he said.
It’s unclear when the records the judge ordered released will be turned over to the news organizations. In a conference call with attorneys Friday afternoon, Kricken said she would keep the records confidential until Nichols and UW had a chance to appeal the decision. The judge said the log detailing the withheld documents must be provided to the outlets by Jan. 13.
Messages sent to Nichols’ attorney and to the university’s attorney were not immediately returned Friday. Nichols was recently announced as the new president of Black Hills State University.
“Judge Kricken’s decision is a victory for transparency — the Wyoming public’s right to know how its tax dollars are spent and its institutions managed,” WyoFile chief executive and editor Matthew Copeland wrote in a statement. “It’s worth noting, however, that innumerable work hours and thousands of dollars were required to defend — to simply maintain — those rights.
“If the precedent set here precludes similar stonewalling the next time an institution or official wants to avoid scrutiny, it will have been effort well spent,” he said. “You can rest assured, we’ll put that to the test.”
Dale Bohren, the publisher of the Star-Tribune, also hailed the ruling.
“As important as it is for residents of Wyoming to know and understand how the state’s only university is managed,” he wrote in a statement, “this suit was about a larger and even more important issue, and that is about how public information is curated by publicly funded institutions and how that information is disseminated to the public, including newspapers.”
Throughout her order, Kricken repeatedly stated that the Wyoming public had an interest in how its sole four-year university is run. She dismissed the notion, argued by Nichols, that the former president wasn’t a public figure. She quoted heavily from past court cases, including one that declared that, generally, “state agencies must act in a fishbowl.”
“The public has a legitimate concern and great interest in the actions of the University Board and the University President,” she wrote.
Transparency advocates have worried about overuse of the personnel exemption to deny public records requests, overuse that improperly catalogs decisions as belonging in a private personnel file. Moats said he hopes Kricken’s ruling will push against such a trend.
“I would hope that not only the university but other governmental entities would take this decision to heart,” he said. “I have seen more willingness [recently] to withhold information than maybe there has been in past years.”
While the content of the documents is unclear, previous court filings suggest they pertain to an investigation into Nichols. The university’s Board of Trustees secretly undertook that probe in the weeks before the school announced Nichols wouldn’t continue as president.
In September, WyoFile and the Star-Tribune reported as much, citing anonymous sources who were contacted as part of the investigation. The news outlets also cited a document that provided significant details of the investigation.
In court filings when joining the case, Nichols argued that she was never contacted in regards to an investigation. Her attorney has suggested that Nichols not being contacted or notified of the investigation was an omission that violated UW policies. The university’s lawyers challenged that suggestion.
The news of Nichols’ demotion shocked campus; she was popular and had helped the school navigate turbulent times in her three years at the helm. To add to the confusion, virtually no information was released about the decision after it was announced in late March. The board declined to provide any detail, and Nichols repeatedly said she was given no explanation for why she wouldn’t continue. She said — and her attorney confirmed in emails filed with the court — that she and the board were “marching” toward a contract renewal.
That renewal was apparently derailed by the investigation launched in February and March. It’s unclear exactly what the investigation was seeking to uncover. One source told the Star-Tribune and WyoFile that the subject of the inquiry was Nichols’ conduct.
The Star-Tribune filed multiple records requests in the spring seeking records related to the decision, including documents pertaining to an investigation into Nichols. The investigation request was denied completely while another was only partially filled. The university refused to acknowledge that any investigative records even existed, and the board’s chairman, Dave True, declined to comment. Those denials triggered the lawsuit.
In October, after WyoFile and the Star-Tribune reported that Nichols was investigated, the university turned over more documents to the court, apparently in relation to the investigation. The university argued that any investigation was privileged and couldn’t be released. Kricken disagreed.
“Other states faced with similar issues have found that the public’s interest in monitoring the disciplinary operations of public institutions outweigh the personal privacy concerns involved, especially after sensitive personal information has been redacted,” she wrote.
UPDATE, December 6: The UW board of trustees is likely to appeal Kricken’s ruling, according to UW spokesperson Chad Baldwin. “The board has not made a final decision on whether it will appeal,” Baldwin said in response to inquiries on Monday, “but that is the intent at this point.” The appeal would go to the Wyoming Supreme Court.
In a statement, Casper Star-Tribune publisher Dale Bohren said he regrets the delay an appeal would cause, but looks forward to continuing the case.
“The public is anxious to learn why a popular president was demoted,” Bohren wrote. “But we need to be patient and let the process work because the larger issues, like the public’s interest in understanding how our top contracted employees behave in their professional capacities, even at risk of their professional reputations, is a vital point of the judge’s ruling with far reaching consequences for every citizen of our state. An indisputable ruling with clarity on the issues in this suit, regardless of the time that takes, will be most important in the long term.” — Ed.
1:3 Ruling in UW Records Case (PDF)