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The Daily Tar Heel

Records suit goes to court

A hearing will be held in Raleigh on Thursday to determine whether UNC must release documents related to the 2010 NCAA investigation of the University’s football team.
The hearing is almost two years after The Daily Tar Heel, The Raleigh News & Observer, The Charlotte Observer and five other media organizations filed a lawsuit in October 2010 against the University seeking all documents resulting from the investigation.
The University released 64 pages of redacted documents late Tuesday, just two days before the hearing. Thhe documents show that multiple former football players met at the apartment of a former tutor, believe to be Jennifer Wiley, the night before their first interview with investigators.
An attorney representing former football coach Butch Davis submitted a brief on Tuesday arguing that a subpoena for the coach’s personal cell phone records should be quashed and a protective order entered because they are not public records. The brief also argues that Davis was not an agent of the state as a coach of a competitive athletics team.
In an April 2011 hearing that was part of the lawsuit, Wake County Superior Court Judge Howard Manning ruled that the University should have released complete phone records of key officials involved in the investigation and student athlete parking tickets.
The University had argued that these records were protected by the Family Educational Rights and Privacy Act, known as FERPA.
Amy Herman, associate athletic director for compliance at UNC, gave a deposition in September 2011 as part of the lawsuit.
Herman said in her deposition that the University deliberately tried to create as few records as possible during the NCAA’s investigation.
“It is not unlawful to not create a public document,” Melissa Trippe, an attorney with the N.C. Department of Justice representing the defendants, said in the deposition.
“Some would even say that’s good advice, to not create public documents.”
Frank LoMonte, executive director of the Student Press Law Center, said avoiding the creation of public records does not violate the state’s public records law.
“There’s no honest and legitimate explanation for consciously avoiding creating public records,” LoMonte said.
The DTH and other plaintiffs submitted another public records request in October 2011 for all documents related to the NCAA investigation the University had not yet released.
The University released more than 200 pages of heavily redacted documents in response to the request last week.
The documents included statements of fact and reinstatement requests submitted by the University to the NCAA in 2010 and bills the University received from the Kansas law firm, Bond, Schoeneck & King.
The documents show that the University spent more than $66,000 in outside legal fees from June 2010 until September 2010.
Karen Moon, University spokeswoman, said the University has spent more than $467,000 in outside legal fees since the NCAA investigation began in 2010.
Moon said the documents were redacted to protect confidential information related to students, personnel and the services provided by outside counsel.
Ryan Thornburg, a professor in the UNC School of Journalism and Mass Communication who has worked to make public information available online, said he expects at least some of the redactions in the documents released by the University to be overruled in court.
Amanda Martin, an attorney representing the DTH and other plaintiffs in the lawsuit, submitted a legal brief in which she argues the University should release the records.
In the brief, Martin said the court must decide whether the DTH and other plaintiffs are entitled to copies of the documents created by The University during the investigation, copies of the University’s written interaction with the NCAA, certain documents and correspondence between the University and its outside counsel, and records of the personal cell phone of Davis.
Martin argues in her brief that the records the Universty has withheld are business records, rather than educational records, and therefore not protected by FERPA.
Marc Bernstein, special deputy attorney general, submitted a legal brief on Tuesday in support of the defendants, who he listed as Chancellor Holden Thorp, Athletic Director Bubba Cunningham, head football coach Larry Fedora and Director of Public Safety Jeff McCracken.
Bernstein said in the brief that the University has complied with FERPA and that it was right to withhold records of investigations regarding potential misconduct by state employees and communications made within the scope of the attorney-client relationship.
Judge Manning will preside over Thursday’s hearing.
“We’ve got a good indication that this judge will look skeptically at attempts to apply FERPA broadly,” LoMonte said.
“most courts agree that FERPA only applies to educational records that would be kept in a student’s permanent record. Records filed with the NCAA would be unlikely to fall into that category.”
University spokesman Mike McFarland said the University is not granting interviews related to the lawsuit before the hearing.
Public recrds requests made to UNC must go through Regina Stabile, director of institutional records and report compliance.
Stabile was out of the office and unavailable for comment. Several other University officials declined to comment on the procedure for handling public records requests.

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