Days before the NCAA closed hearing on alleged infractions by the University of Louisville, we are learning more about the recently decided Jefferson Circuit Court case —Courier Journal v University of Louisville — a case brought in order to shed at least some sunlight on this secretive process.
Our thanks to Courier Journal sports columnist Tim Sullivan for sending us a copy of the circuit court opinion in the case as well as a subsequent motion filed by UofL asking the court to alter, amend, or vacate the opinion.
We have also learned that the Courier is seeking substantial penalties — along with attorneys’ fees and costs which the court already awarded
There are several key takeaways:
• UofL badly mishandled Sullivan’s requests. Needless delays, coupled with misrepresentations and bureaucratic red tape necessitated multiple requests over a period of months, none of which UofL adequately resolved.
(“The record reflects that the University of Louisville denied the existence of the records expressly referenced in the Amended Notice of Allegations, claiming the requested attachment ‘does not currently exist and is not in anyone’s possession,’ which forced Sullivan to contact the NCAA itself to confirm the documents existed and could be accessed by the University of Louisville. The record also reflects that the University of Louisville repeatedly ignored Sullivan’s requests to come and inspect the records in the same manner that the University of Louisville viewed them”).
• The 1992 Kentucky Supreme Court case on which the Jefferson Circuit Court based much of its analysis is not factually identical.
https://law.justia.com/cases/kentucky/supreme-court/1992/91-sc-000034-d…
An appellate court will likely decide whether the factual dissimilarities warrant a different outcome in the current case —as well as whether the imposition of attorneys’ fees, costs, and — perhaps — penalties was appropriate.
Both the current UofL case and the 1992 UK case involved records relating to an NCAA investigations. But there the resemblance ends.
In 1992, the Courier requested the entire •University of Kentucky response (“report”)• to NCAA allegations that the university’s athletic staff improperly mailed $1000 to a recruit on the West Coast •after• the response was filed. The dispute centered on whether the trial court properly divided the response into three parts and required only one part released to the public. The Supreme Court said “no.”
Emphasizing that the NCAA is not a public agency subject to the Kentucky open records law, the Court concluded:
“The submission of the report to the NCAA by the University constitutes final action of the University, an agency subject to the disclosure requirements contained in the Act. Further, investigative materials that were once preliminary in nature lose their exempt status once they are adopted by the agency as part of its action.
“Once the University made full and complete disclosure of the materials contained in the Response to the NCAA, it subjected these documents to full disclosure once the University's action became final.”)
At issue in 2022 are •NCAA investigative records (“exhibits”)• attached to the NCAA’s Amended Notice of Allegations that the Courier requested •before• UofL submitted its final response to the NCAA. Those exhibits were expressly incorporated into the Amended Notice of Allegations but were stored by the NCAA on a “secured portal” to enable UofL to prepare its response, but otherwise limit access.
This is •not• a distinction without a difference since the propriety of a public agency’s response to an open records request is assessed at the time of the request and not in light of subsequent events.
As noted, Sullivan submitted his open records requests before UofL filed its response to the NCAA allegations. During the pendency of the Jefferson Circuit Court case, UofL filed that response.
The Jefferson Circuit Court ruled:
“The documents the University of Louisville argues are ‘preliminary’ could not have been so, since they were interviews conducted by the NCAA and were never materials that could constitute preliminary records under KRS 61.878(1)(i) and (j). Thus, the University of Louisville was obligated in the Open Records Act to make the records available through the secure portal system if that was the only way to view the interviews. The record reflects that the University of Louisville has refused to provide the Courier-Journal access to the records and continues to do so.”
The court’s analysis is likely to come under close scrutiny on appeal.
• The Family Educational Rights and Privacy Act ( FERPA) was not at issue in the 1992 case that pitted the Courier against UK. As noted, the NCAA allegations there focused on an incident in which the UK athletic staff mailed cash to a recruit in California.
FERPA is central to UofL’s position in the 2022 case.
The Jefferson Circuit Court rejected UofL’s reliance on FERPA, citing University of Kentucky v Kernel Press, Inc, in which the state Supreme Court declared that FERPA “was clearly not intended as an ‘invisibility cloak’ that can be used to shield any document that involves or is associated in some way with a student.”
https://casetext.com/case/univ-of-ky-v-kernel-press-inc
The circuit court did not examine the nature of the records for which UofL claimed FERPA protection, but instead may have fallen into the same trap that the Supreme Court admonished UK for falling into generally in The Kernel case: treating all of the exhibits as if they were one single non-FERPA protected record.
It is likely that the appellate courts will do a deeper dive into the nature of the exhibits UofL withheld — or remand the case to the circuit court for a deeper dive. UofL has already released some of those exhibits — specifically, those involving recruits who did not attend UofL and to whom FERPA protection did not extend.
• Central to the 2022 dispute is public access to the exhibits through the “secured portal.” From a broader open records perspective, this is the most critical issue before the courts.
It is the issue that prompted Tim Sullivan to express hope that the case will “set a precedent other media can follow to pursue records the NCAA and member schools are trying to conceal through a secure portal.”
It is the issue that prompted WDRB sports columnist Eric Crawford to pen an “open letter” to the NCAA on the eve of UofL’s hearing, declaring:
“This is all taking place in secret, so of course, it’s all legit. (Pausing to roll eyes).
“It should be taking place in public. It should be taking place without all the cloak-and-dagger. But it’s your show.
“I’d just be interested in knowing, at this point, what justice looks like? How is it handed out?”
https://www.wdrb.com/sports/crawford-an-open-letter-on-the-eve-of-louis…
And finally, it is the issue that prompted the Kentucky Supreme Court to observe — in a footnote to the 1992 case involving UK’s response to the NCAA investigation — “[T]he NCAA and the University's preference for confidentiality in investigating rules violations cannot supersede the clear mandate of the Open Records Act.”
We are unable to locate any clear rationale for the enforced secrecy the NCAA demands. Nor, frankly, can we imagine what the rationale is. The argument that transparency would deter full cooperation and candor in future investigations is specious. Certainly, it has been rejected in open records cases in which a public agency advanced the argument that disclosure would have e a “chilling effect” on future investigations.
One thing is certain. In 1992, there were no “secured portals” to which the NCAA limited access. The NCAA Notice of Allegations was transmitted in paper form and was possessed, retained, and used by UK in drafting its response. It was a public record of a public agency.
The use of a “secured portal” to transmit the records to a public university should not alter this analysis. “Technology should illuminate the halls of government, not darken them.”
https://www.courthousenews.com/first-amendment-action-filed-against-col…
The exhibits attached to the NCAA Amended Notice are, in our view, public records for open records purposes. As the Kentucky Attorney General regularly said — until Daniel Cameron took office — “In the end, it is the nature and purpose of the documents, not the place where they are stored, that determines their status as ‘public records.’”
https://cases.justia.com/kentucky/court-of-appeals/1999-08-12-1998-CA-0…
Whether they were exempt public records — as UofL claimed — or nonexempt public records — as the Courier claimed and the Jefferson Circuit Court held — may yet be resolved by the appellate courts.
It’s likely the newspaper will not, the university cannot, and the court is not inclined to, yield on its position.
But what was true in 1992 remains true today. Secured portal or no secured portal, “the NCAA and the University's preference for confidentiality in investigating rules violations cannot supersede the clear mandate of the Act.”
