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.”
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]
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