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The battle for the Kroll records goes on

By   /   February 1, 2017  /   No Comments

Part 72 of 72 in the series Trouble in Texas
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TRY, TRY AGAIN: The Supreme Court of Texas will get another chance to do the right thing in a case involving UT records.

In his concurring opinion knocking down Wallace Hall’s lawsuit against University of Texas Chancellor Bill McRaven, Justice Don Willett wrote last week that the Texas Supreme Court is “where the years-long saga ends.”

Not quite.

The reason the Kroll investigatory records weren’t destroyed shortly after the Kroll report was published is that Watchdog.org filed a public records request for them.

The state attorney general ruled that some of the records had to be released, while others didn’t, so McRaven had the UT System sue the AG in late 2015, seeking to block them all.

That lawsuit stalled under governmental inertia, so last fall, Watchdog’s parent organization, the Franklin Center for Government and Public Integrity, and this reporter intervened in that lawsuit, seeking not just the records that the attorney general had said we could have, but the records we believe UT is wrongly hiding behind pretexts such as attorney-client privilege and the Family Educational Rights and Privacy Act.

Our first hearing in Travis County District Court last month didn’t go well at all, but we have reason to believe we’ll prevail.

The fact that Kroll Associates provided UT no legal services is just one obvious reason attorney-client privilege shouldn’t apply.

We also believe it’s obvious from case law that FERPA doesn’t actually restrict universities from disclosing records.

State law makes “student records” private, so we understand that information from the students’ permanent record is likely off-limits. But we reject the idea that emails between administrators are somehow protected, much less records of a completed investigation, or that all “personally identifiable information” should somehow be redacted because an educrat in Washington, D.C., has decided to misinterpret the law, and universities prefer the misinterpretation.

We’re saying, in other words, that the Supreme Court of Texas is going to get another chance to get this right.

We have one big reason to be optimistic, and two reasons to doubt.

Of the nine justices, only Debra Lehrmann unambiguously sided with UT on the merits of the case; her concurring opinion could have been written by UT’s attorney, former justice Wallace Jefferson.

The other eight voted based on jurisdictional considerations, holding that the Legislature had given the UT board a broad grant of authority do whatever it liked. While we could write another couple thousand words on why we think that’s wrong, it has no legal bearing on our case.

The court decided it didn’t have the authority to overrule the Board of Regents, but there’s no question it has the authority to make final determinations on what records should be public.

It might seem counter-intuitive that the public could have more access to records than a regent, but that is the reality the court has created. A member of the UT Board of Regents now has zero independent authority as a regent to demand a record.

The public still has its rights under the Texas Public Information Act.

So we think we’re on solid ground in both the intent of the law, and on the technicalities. The problem is that when it comes to public records, this court’s devotion to “judicial restraint” has taken several holidays.

In 2010 and 2011, the court wrote new laws into existence during litigation involving the Dallas Morning News, the Austin American-Statesman and the San Antonio Express-News.

Without getting into the good reasons the papers needed the information they’d requested – state employee birthdates and the governor’s travel vouchers, respectively – the court wrote new privacy exceptions for the information into state law based on its own speculation that the information could somehow be used to endanger somebody. There are several other recent rulings that are just as troubling.

The idea that information is dangerous and best kept away from the public is what concerns us more than anything.

Well, that and the court’s new holding that officials are free to misinterpret the law. If the court doesn’t realize its mistake there and fix it, the rule of law in Texas is done for.

Conveniently enough, our case could be just the vehicle to fix it if the court doesn’t find one sooner. The court could make it clear that “collateral law” in its consideration just means law that isn’t directly binding, such as FERPA, which is enforced through the power of federal purse strings.

It simply cannot be that state officials are free to disregard state law. If the court rules that state agencies are only free to disregard federal coercion, it could save the day yet. As it stands, we’ll get chaos.

Contact Jon Cassidy at @jpcassidy000 or [email protected]

Part of 72 in the series Trouble in Texas
  1. Texas’ Rep. Pitts announces retirement after improper influence story
  2. University of Texas regents show support for Wallace Hall
  3. Case against UT regent Wallace Hall is a sham — here’s proof
  4. Texas senator got $477k for supposed ‘cameo’ appearance in Wallace Hall lawsuit
  5. Lawmaker admits pulling strings on UT admissions
  6. Trustee accused of crime for rejecting dodgy accounting
  7. Longhorns: Senator used clout in UT law school admissions
  8. Children of Texas lawmakers get into UT School of Law, but struggle to pass bar exam
  9. Chancellor is probing favoritism in UT admissions
  10. UT report: Charge against Hall is legally ‘absurd’
  11. Attorney in UT case hides six-figure charges despite terms of contract
  12. University of Texas clout scandal grows as new e-mails surface
  13. Four more get into UT Law despite low LSATs
  14. Reports on UT favoritism, impeachment expected soon
  15. Attorney: Secret tape covered up by lawmakers proves regent’s innocence
  16. Dozens of UT Law’s least qualified students are connected politically
  17. University of Texas uncovers admissions corruption, halts investigation
  18. UT admissions: Straus, Branch, Pitts pulled strings
  19. Who got the 128? UT Law admits students with bad LSAT scores
  20. Patrick’s win may doom Hall impeachment effort
  21. Chancellor promises complete investigation of UT admissions
  22. Board to decide UT president’s fate Thursday
  23. Texas politicians smarten up, ditch UT pres this time around
  24. Tribune story may have doomed UT’s Powers
  25. Academics condone the privilege they denounce
  26. Three essential stories on the UT admissions scandal
  27. Texas AG Greg Abbott embraces Roe v. Wade
  28. Roe v. Wade is AG’s new pretext for blocking Texas law school investigation
  29. Two UT regents pressed for records destruction
  30. New crime invented for Hall: assisted guesswork
  31. Texas lawmaker failed to disclose his own clout letter in UT flap
  32. Texas legislator Fischer insists on role in UT investigation
  33. Hutchison pulled strings for friends’ kids and grandkids at UT
  34. Ex-UT Law dean’s credit card bill: $400k in four years
  35. Abbott’s UT picks are pro-affirmative action
  36. Report: University of Texas showed favoritism to thousands
  37. Kroll ignored hundreds of weak UT applications
  38. Billionaire defends UT admissions privileges for ‘leaders’
  39. Weak admissions to University of Texas Law increased after Sager’s ouster
  40. Kroll report takes dig at Watchdog.org
  41. Hicks won’t stop UT’s backdoor admits
  42. Texas governor’s wife was on UT nominee’s payroll
  43. Bill to limit UT oversight clears committee
  44. UT regent blasts speaker for ‘abuse of office’
  45. Texas politician rebuts himself with apparently plagiarized letter
  46. Pay-to-play scandal involves UT dean, Texas Exes
  47. Supreme Court asked to look at UT’s backdoor admissions program
  48. Lawmakers want UT applications shielded from scrutiny
  49. McRaven makes UT scandal his own
  50. An open letter to Attorney General Ken Paxton on the UT cover-up
  51. Chancellor Bill McRaven’s UT cover-up has no defenders
  52. UT’s back door still open, but can’t stay secret, AG rules
  53. Whitewash: Kroll left dozens of bad LSATs out of UT report
  54. McRaven’s defense to Hall lawsuit refuted by own words
  55. Ready for the end of affirmative action?
  56. UT admissions scandal is 10 times bigger than official report
  57. McRaven trolls Dallas Morning News
  58. Powers to get top salary at UT Law
  59. UT sues to block Watchdog access to admissions investigation
  60. UT approves ‘Spinal Tap’ policy for backdoor admissions
  61. Admissions survey: No, UT, everybody doesn’t do it
  62. UT admissions scandal prompts new investigation
  63. Ticket scandal a black mark for UT, DA
  64. Showdown over UT cover-up nears end
  65. McRaven’s rationale for UT cover-up denounced by regents, AG
  66. High court to decide if University of Texas can deep-six investigation
  67. High court hears arguments on whether UT can bury investigation
  68. Testimony by UT contradicts story fed high court
  69. These ‘horns ain’t loyal, McRaven finds
  70. UT’s Hall challenges Abbott over board picks
  71. Texas Supreme Court nullifies rule of law; impunity to reign
  72. The battle for the Kroll records goes on

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Jon Cassidy was a former Houston-based reporter for Watchdog.org.