Judge nears decision on Nichols UW records lawsuit
Laurie Nichols visits with an audience member during a public meeting at the University of Wyoming before she was selected to be the next president of the university. (Gregory Nickerson/Wyofile)
By Andrew Graham, WyoFile.com
Judge Tori Kricken heard arguments Tuesday over whether records related to the demotion of former University of Wyoming President Laurie Nichols should be released to the public, and indicated she could soon issue a decision in the case.
At issue is the public’s right to examine the paper trail leading to the board of trustees’ decision not to renew Nichols’ contract, including any investigative reports regarding Nichols’ performance or conduct and associated financial records. The university has denied requests from WyoFile and the Casper Star-Tribune for those records and consistently declined to confirm whether such an investigation took place.
The trustees announced they would not renew Nichols’ contract in March, shocking the campus and UW stakeholders. The board has since declined to comment on its reasoning, the process it followed, the criteria it considered and what, if any, event prompted the unexpected change of course. University representatives have maintained that such deliberations, and any records thereof, are protected from public scrutiny because they involve personnel matters.
Nichols was UW’s fourth president in six years and the first woman to fill the top job in the university’s 130-year history.
WyoFile, Lee Publications, Inc. and APG Media of the Rockies, LLC, sued to make the records public in June. Lee publishes the Casper-Star Tribune and APG publishes the Laramie Boomerang and Wyoming Tribune Eagle.
A lawyer for the university agreed Tuesday to deliver financial records related to any investigation of Nichols to the court by Friday morning. The Albany County District Court judge had previously ordered the university’s counsel to provide her with records UW withheld from public records requests The judge indicated she had reviewed both sides’ legal arguments and would move quickly to issue a decision.
The issues present a “complex” question of public interest, personal privacy and public records law, argued Robert Jarosh, an attorney with the law firm Hirst Applegate, which is representing UW in the case. “Very often it’s not a black and white issue,” Jarosh said of the decisions government entities make in regards to the Wyoming Public Records Act. “There’s no formula that a custodian will use,” he said.
The university’s lawyers had argued earlier that the public interest in the case was not clear. UW has “insufficient knowledge regarding the public’s interest in the University president’s performance,” the firm argued in its July 11 response to the complaint filed by the media organizations, which are represented by Cheyenne attorney Bruce Moats. But on Tuesday, Jarosh, who said he was a former journalist, said he could “sympathize” with the effort by media organizations to unveil the reasons behind the trustees’ decision.
“I empathize with the public interest I really do,” he said. However, the public interest is not a legal consideration in the university’s decision to deny the public access to personnel records about Nichols and other related documents, Jarosh said.
Moats argued that UW’s blanket denial of records requests is an abuse of the personnel exemption. Such exemptions don’t cover all documents related to personnel or employment matters, he argued in a brief. Rather the exemption from disclosure only applies under a narrow and clearly defined set of circumstances — only when disclosure “would constitute a clearly unwarranted invasion of privacy.”
“An investigation into the conduct or performance of the leader of the state’s only university is clearly a matter in which the public has legitimate interest,” the brief states.
Furthermore, Moats argued Tuesday, the denial has made it difficult for news organizations to scrutinize a momentous decision by a critical public institution — the state’s only four-year university. Not knowing what specific records are being withheld by the university has also made it difficult for news organizations and himself to evaluate and contest the worthiness of the denials.
“We’re arguing from this side in the dark,” he told Kricken on Tuesday.
Reporting has unveiled investigation
The University of Wyoming has consistently argued that any documents related to an investigation into the former president, even financial records, would fall under an exemption to the public records act for “personnel matters.” At the same time, the university general counsel has declined to provide a log of the records being withheld that would allow news organizations to evaluate the reasons each record was denied.
The denials have made it difficult for the public to gain understanding into how the decision not to renew Nichols’ contract was made. But on Sept. 26, WyoFile and the Casper Star-Tribune published an investigative report into the Nichols decision, revealing that documents obtained by the news organizations and interviews with three sources close to the matter indicate an outside law firm, Employment Matters LLC Flynn Investigations Group, conducted an investigation into Nichols’ conduct in the weeks before the trustees made the contract decision.
Invoices obtained by the news organizations show the outside firm billed $8,550 for the investigation. It remains unclear whether that invoice, which was sent to board chairman Dave True’s business address, was paid out of the university’s budget or other funds.
Jarosh on Tuesday morning continued to neither confirm nor deny an investigation had occurred. Indeed, the lawyer argued that any log of records that had been withheld in response to the records request shouldn’t be disclosed because it could offer insight into how the Nichols decision was made.
“An entire class of documents that should be exempt should not be logged,” Jarosh said. Reporters want a log to “prove something they think happened,” he said.
Jarosh argued the use of anonymous sources in the Casper Star and WyoFile investigation was indicative that the inquiry into the board of trustees’ decision was an unwarranted invasion of privacy. “Individuals they attempted to interview or talk to would only talk to them,” under the guise of anonymity, Jarosh said. The sources “don’t want anything to do” with the inquiry, he said.
WyoFile and the Casper Star spoke to sources who were contacted about Nichols by outsider investigators — reporters provided sources anonymity so they could discuss affairs the board of trustees had deemed secret.
Moats argued the university’s denials have made it difficult to scrutinize the actions of the governing body for the public institution and evaluate the propriety of the actions taken by the board.
“Is it an investigation that was called for in the regulations of the university?” Moats asked. “We don’t even know that.” Though reporting has revealed that outside investigators were involved in a series of phone calls where the trustees appear to have made the Nichols decision, there is no clear evidence that a report was written.
“Was there a report or was it delivered orally? We don’t know,” Moats said.
Kricken asked few questions during the 45-minute hearing, saying both sides had provided thorough briefings of their arguments. However, she indicated the case carried weight and was worthy of a judge’s attention.
“It’s appropriate for this matter to have come before this court,” Kricken said. The arguments made both for and against disclosure “are serious,” she said.
WyoFile is an independent nonprofit news organization focused on Wyoming people, places and policy.