{"id":5276,"date":"2016-09-02T17:58:30","date_gmt":"2016-09-02T21:58:30","guid":{"rendered":"http:\/\/www.khpi.org\/blog\/?p=5276"},"modified":"2016-11-08T14:42:38","modified_gmt":"2016-11-08T19:42:38","slug":"attorney-general-finds-university-of-louisville-violated-open-records-law-in-ncaa-basketball-scandal","status":"publish","type":"post","link":"http:\/\/www.khpi.org\/blog\/attorney-general-finds-university-of-louisville-violated-open-records-law-in-ncaa-basketball-scandal\/","title":{"rendered":"Attorney General Finds University of Louisville Violated Open Records Law In NCAA Basketball Scandal."},"content":{"rendered":"

Last February, I submitted an open records request to the University of Louisville for documents and information used by then-President James Ramsey underlying his decision to withdraw from postseason basketball play in 2016. \u00a0[I was reacting to media reports and a formal statement<\/a> by UofL\u00a0that\u00a0University President Ramsey had received updates and information upon\u00a0which he acted. \u00a0I asked for that information.] \u00a0 My request was summarily dismissed and I filed an appeal with the Attorney General of Kentucky.\u00a0 After much back and forth between that office and the University, it was determined that the University had indeed violated the requirements of Kentucky’s Open Records Act.\u00a0 Even before I was able to read the opinion, it was being published by traditional media including the Courier-Journal<\/a>, and WDRB<\/a>. Here is the best summary<\/a> to date. Here is another<\/a>. \u00a0A shorter version from the Associated Press<\/a> appeared in dozens of newspapers nationally before the end of day yesterday.\u00a0 Because of the presumed general public interest in this matter, I believe it is appropriate to explain my motivation and make to make public the correspondence and documents that led up to the AG’s decision<\/a>.<\/p>\n

The decision may have been correct.<\/strong>
\nLet me say at the outset, I have no opinion about whether the decision to withdraw was appropriate or not.\u00a0 It may well have been the best path forward.\u00a0 I did not have any interest in learning the names of any of the students involved nor would I have made their names public. [Similarly I am not interested in any salacious details.] \u00a0I do however have an interest in how the University does its business.\u00a0 I have written often over the last few years about the lack of appropriate transparency and accountability within\u00a0the administration of Dr. Ramsey.\u00a0 I have argued that many of the University’s problems, and certainly those of its its public relations image stem from its penchant for non-disclosure or secrecy.\u00a0 Discussions with traditional journalists and my own experience led me to believe that the University is\u00a0often a reluctant participant in the Open Meeting or Open Records requirements.<\/p>\n

Many others wanted to know at the time.<\/strong>
\nThe circumstances of the post-season play decision were unclear if not confusing to the public.\u00a0 Few facts were given.\u00a0 It was ambiguous or contradictory who else besides the President (such as coaches, the Athletic Director, or the Boards of Trustees of the University or the Athletic Association) was\u00a0involved, consulted, or informed about his decision.\u00a0 Some were even concerned that the decision was made to distract attention from other scandals and issues surrounding the University and its President.<\/p>\n

From the beginning, there was skepticism that the process taken by President Ramsey breeched Kentucky’s Open Meeting law. \u00a0It was then, and is now my opinion that the background necessary to interpret and judge the eventual outcome at the hands of the NCAA required that the public know more than was being offered.<\/p>\n

Therefore, on Wednesday, February 10, 2016 I made the following submission to the Custodian of Records of the University:<\/p>\n

Feb. 10, 2016
\n<\/em>From: Peter Hasselbacher
\n<\/em>To: Sherri Pawson
\n<\/em>Open records request: suspension of tournament and postseason basketball play.<\/em><\/p>\n

Dear Ms. Pawson.<\/em><\/p>\n

Last Friday, University of Louisville President James Ramsey took definitive action to suspend tournament and Post season play for the University of Louisville men’s basketball team. Since such action cannot by definition be said to be based on preliminary documents, because the Board of Trustees was convened to hear the matter from President Ramsey, and because the matter is not one of litigation, I am requesting all the documents, reports, and other information president Ramsey had in hand to cause him to take this action on behalf of the university. If the decision was made or supported by another party such as an administrator or program director in the athletics department, I also request all records used by such a representative to endorse or support the final action by president Ramsey.<\/em><\/p>\n

Thank you for your assistance.
\n<\/em>Peter Hasselbacher M.D.<\/em><\/p>\n

A response within three working days is required by statute and appropriately on Monday, Feb 15 I received the following response by e-mail.<\/p>\n

Monday, February 15, 2016
\n<\/em>From: Sherri Pawson
\n<\/em>To: Peter Hasselbacher
\n<\/em>Re: Response to Open records request: 16-061 <\/em><\/p>\n

On behalf of the custodian of the records of the University of Louisville, I am responding to your application to inspect university records. I respond on behalf of the university to all requests made of UofL employees under the Kentucky Open Records Act and the federal Family Educational Rights and Privacy Act, as well as to subpoenas and other requests for the inspection of university records. This includes internal as well as external requests.<\/em><\/p>\n

The university has no records responsive to your request. \u00a0Please let me know if you think I can be of further assistance.<\/em><\/p>\n

Sherri Pawson
\n<\/em>Senior Compliance Officer
\n<\/em>Archives and Special Collections
\n<\/em>University of Louisville<\/em><\/p>\n

Ms. Pawson has always been polite, professional, and responsive to me, but she does not decide what gets released.\u00a0 Perhaps you might have felt, as I did, that I had been brushed off. Therefore, I responded that same day with the following:<\/p>\n

Feb 15, 2016
\n<\/em>From: Peter Hasselbacher
\n<\/em>To: Sherri Pawson
\n<\/em>Re: Response to Open records request: 16-061 <\/em><\/p>\n

Hi Ms. Pawson.<\/em><\/p>\n

The University\u2019s response to my request makes no sense to me as its leadership must have had some information available to support its definitive action.<\/em><\/p>\n

Should I assume that this email to me represents the University’s final written response to my request? \u00a0If so, this is the document I will submit to the Kentucky Attorney General for the review of that office.<\/em><\/p>\n

Respectfully.
\n<\/em>Peter Hasselbacher<\/em><\/p>\n

The above was the last direct correspondence I had with UofL on this matter. \u00a0Surely, I thought, the decision to withdraw from post-season play would not have been made on-the-fly or off-the-record \u2013 or was it? \u00a0I assumed that I was being given the stone wall treatment. Many hearts were broken by the decision and I felt the need for a little push-back in the name of accountability. Therefor on February 27 I submitted the following appeal to the Office of the Attorney General. You can read the document in its entirety<\/a> here, but here are some excerpts:<\/p>\n

It begins:<\/p>\n

Please review my attached open records request to the University of Louisville and the final written response by that institution denying that there are responsive documents.\u00a0 It is difficult for me to believe that this is tru<\/em>e.<\/p>\n

and continues:<\/p>\n

It beggars the imagination that such a serious action would have been taken without any documentation.\u00a0 In my opinion, not to document what happened behind closed doors up to the point of definitive action would be a dereliction of institutional responsibility, leaving history to speculate about the justification, or possible institutional or personal motivations for a definitive decision and action that affected so many and has aroused so much public concern. I cannot believe this happened. \u00a0…<\/em><\/p>\n

\u00a0I am not an attorney and my request to the University may have been flawed in some way allowing the University to fairly deny it, but I see this as one example of the current University administration\u2019s reflexive posture of secrecy, one that has led to one embarrassment after another for this public institution.<\/em><\/p>\n

Thank you for your consideration.
\n<\/em>Respectfully,
\n<\/em>Peter Hasselbacher, M.D<\/em><\/p>\n

On March 3d, I learned that the Attorney General’s office was taking up the matter<\/a> and which asked the University to respond to my appeal. On March 8 the University did so. Most of the response related to issues of Open Meeting requirements by arguing that the Investigative Committee had no policy-making role and did not fall within the designation of a “public agency.”\u00a0 I had not restricted my Open Meeting concerns to the Investigative Committee but had the meeting of the Boards of Trustees in mind in this regard.\u00a0 In any event, as yesterday’s opinion noted, because I did not submit an Open Meeting complaint in the manner required by statute (as opposed to my Open Record complaint which was acceptable), the Attorney General was not rendering an opinion on the former. Excerpts from the UofL response of March 8<\/a> follow:<\/p>\n

Dr. Hasselbacher responded that the University leadership “must have had some information available to support its definitive action.” However, the absence of records does not necessarily equate to an absence of information.<\/em>\u00a0 and<\/p>\n

Finally, Dr. Hasselbacher incorrectly presumes that there are records which President Ramsey had “in hand” which caused him to take action vis-a-vis post-season play. As the University stated in its initial response, there are no records responsive to Dr. Hasselbacher’s request. The University does not deny that President Ramsey had information; but there are no records. For the above reasons, the University submits that Dr. Hasselbacher’s Appeal should be denied<\/em>.<\/p>\n

The Office of the Attorney General replied on March 11<\/a> requesting additional information from the University asking it to:<\/p>\n

… describe how it conducted its search for records in President Ramsey’s custody, and records in the custody of other parties “such as an administrator or a program director in the athletics department,” that are responsive to Dr. Hasselbacher’s request. Bearing in mind that the Attorney General has long recognized that an agency must make a good faith effort to conduct a search using methods which can reasonably be expected to produce the records requested,” please document the efforts that were made to locate responsive records.<\/em><\/p>\n

The University was asked to reply by March 21. \u00a0In a letter dated March 22,<\/a> the University reiterated that President Ramsey had no documents in hand on February 4;<\/em>\u00a0and that Chuck Smrt, the University’s contracted\u00a0NCAA Investigator,\u00a0confirmed that he brought a copy of NCAA Bylaw provisions to his meeting with the President, and he maintained that copy following the meeting.<\/em><\/p>\n

On March 30th, Attorney General’s Office gave notice that additional time would be required before it would render an opinion on the appeal. \u00a0Things had gotten more complicated. \u00a0Apparently there had been additional correspondence between Frankfurt and Louisville. \u00a0 I was not the only one filing an appeal related to Open Records requests on this matter. As early as April 14, the Attorney General had asked the University to provide for in camera<\/em> review of a variety of records, the response to which was material containing no reference to the matter under investigation by the NCAA. \u00a0Excerpts from the AG’s June 15 letter<\/a> relevant to my appeal include the following:<\/p>\n

The University’s response is based on an erroneous belief that Dr. Hesselbacher’ s request was confined to “document, reports, and other information” that Dr. Ramsey had “in hand on February 4 when the decision was made.<\/em>”\u00a0 and.<\/p>\n

We are, therefore, compelled to request additional information and further<\/em> in camera review of records. and … please describe in detail the search method used to locate responsive records, including but not limited to the search method used to locate “records in the custody of other parties such as an administrator or a program director.” … In responding, please bear in mind that records in the custody of an attorney, investigator, or other agent of the University are not thereby excluded from the reach of the Open Records Act. A public agency cannot avoid producing records responsive to an open records request by placing public records in the hands of a contracted employee or a non-public entity<\/em>.<\/p>\n

On June 21, the University asked for an extension to be able to reply, and on July 8 submitted a response<\/a>.\u00a0 Excerpts relevant to my appeal are as follows:<\/p>\n

With respect to the Hasselbacher request, the University promptly responded in a letter to the Attorney General’s Office on March 8, 2016, stating that the University does not have any records responsive to this request. The University explained, and again emphasizes, that it does not deny that President Ramsey had information available to him in making the decision to impose the post-season ban; it simply denies that there were any records used in making that decision<\/em>.\u00a0 and<\/p>\n

The University provided a response on March 22, 2016, explaining that President Ramsey, himself, confirmed that he did not have any documents, records or other information in his possession when the decision was made to suspend post-season play. \u00a0In addition, Chuck Smrt, the University’s contracted NCAA investigator, confirmed that he did not provide any written documents, records or other information to President Ramsey<\/em>. and<\/p>\n

\u00a0<\/em>… the University spoke to President Ramsey and Chuck Smrt, both of whom confirmed that there were no documents, reports or other information that President Ramsey had in his possession that led him to suspend the University men’s basketball team from postseason play, nor were there any such documents, reports or other information used by any other University “administrator or program director in the athletics department.<\/em><\/p>\n

In footnotes to the University’s response was the following:<\/p>\n

1 As additional clarification, the University states that President Ramsey did not have any “documents, reports or other information” in his possession at the time of the decision to impose the post-season ban nor at any time leading up to the decision to impose the post-season ban. <\/em><\/p>\n

2 As additional clarification, Chuck Smrt did not provide written “documents, reports or other information to any University “administrator or program director in the athletics department.”<\/em><\/p>\n

The next and most recent document available to me was yesterday’s opinion letter<\/a> from the Attorney General’s Office which is now available all over the web.\u00a0 It speaks for itself. Excerpts include the following.<\/p>\n

Summary: University of Louisville violated the Open Records Act by not providing non-exempt records related to decision to ban the men’s basketball team from post-season play….<\/em><\/p>\n

The University acknowledged that records related to the allegations of the men’s basketball team exist. Its correspondence with this office implies that the University’s contracted investigator Chuck Smrt is in possession of these records. Thus, the question is whether or not the records in Mr. Smrt’s possession are encompassed by, and thus responsive, to the request. After careful review, we find that they are….<\/em><\/p>\n

The University records in Mr. Smrt’ s possession are clearly contemplated by Dr. Hasselbacher’s request. They were used by Mr. Smrt to assist Dr. Ramsey in making his final determination. We must note that to assist us in this analysis, we requested to review these records in camera. However, the University refused this request, arguing that it was beyond the scope of the initial open records request. \u00a0While the University’s failure to provide this office with these records for <\/em>in camera review hampers our ability to substantiate the existence of various records, the clear implication from the University’s correspondence with this office is that Mr. Smrt was in possession of records on February 4, 2016 that formed the basis of the University’s decision to ban the men’s basketball team from post-season play.<\/em><\/p>\n

Therefore, the University violated the Open Records Act by not providing Dr. Hasselbacher with non-exempt records in the possession of its investigator? The University also gives no indication that it questioned other “parties” about the existence of records in their custody endorsing or supporting the action. Clearly, the University did not conduct a search directed at all places which could reasonably be expected to produce the records Dr. Hasselbacher requested. It can best be described as a cursory search. We find that its search was inadequate. The University should conduct a more comprehensive search aimed at locating the records identified in Dr. Hasselbacher’ s request and not just the primary players in this event. Until it has done so, its duties under the Open Records Act will not be fully discharged.<\/em><\/p>\n

Concluding remarks<\/strong>.
\nThe narrative above\u00a0may be\u00a0overly long or\u00a0detailed, but I think it is best to have the “data” out there. \u00a0I have no doubt that many will disagree with the opinion of the Attorney General or will seek to criticize me for asking for the information in the first place. \u00a0It cannot, however, be denied that the desire to know what was going on at the time of the decision to withdraw from post-season play was both widespread and intense.\u00a0 Potential embarrassment on the part of the University is not a justifiable reason for keeping the decision-making process secret. “Who knew what and when” is generally an acceptable question to ask when accountability is on the table. \u00a0Making the original documents available will allow the reader to formulate their own opinions.<\/p>\n

The University has indicated that it will appeal this decision.\u00a0 The concurrent appeal by the Center for Investigative Reporting<\/a> was denied.\u00a0 It may yet be that some of the facts behind this unhappy matter may never come to light. This\u00a0would be a bad outcome. \u00a0For example, not to know who put up the money to pay for the entertainment of prospective student athletes in the athletic dorm would be a travesty, no matter how embarrassing to individuals or the University this revelation might\u00a0be. \u00a0How the decision was made and communicated is highly relevant in an institution that has been buffeted by misconduct and scandal and has made a habit of non-disclosure. It is important to know that the community was not mislead by the explanations given last February.<\/p>\n

The University of Louisville has a new acting President and a new acting Provost.\u00a0 I have been\u00a0impressed by both individuals who have promised both transparency and accountability.\u00a0 How they handle this matter and other issues left over from the previous administration will be telling.\u00a0 They should not be afraid of the sunshine.<\/p>\n

Peter Hasselbacher
\nEmeritus Professor of Medicine, UofL
\n2 September 2016<\/p>\n

[Addendum 10-11-16: \u00a0The University of Louisville appealed the opinion of the Attorney General. \u00a0Their petition in Jefferson Co. Circuit Court is 16-CI-4800<\/a>\u00a0– University of Louisville vs. Peter Hasselbacher.]<\/p>\n

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