By Nick Reynolds
Via Wyoming News Exchange
CASPER — Several news outlets in Wyoming — led by the Casper Star-Tribune — filed a lawsuit Friday against the University of Wyoming and its board of trustees, charging the institution with failing to properly disclose public records relating to the demotion of former University of Wyoming President Laurie Nichols earlier this spring.
Friday’s lawsuit marks the latest in a long string of developments since the sudden — and highly scrutinized — announcement of Nichols’ demotion back in March.
However public the demotion was, the reasons for it have been kept private, with the university’s board of trustees and legal counsel refusing to answer questions on the matter, citing personnel and privacy concerns.
After months of attempts to obtain documents related to the demotion of UW’s first female president, the Star-Tribune and three other publications are asking the courts to decide the issue.
“The university’s board and their attorney have denied multiple reasonable requests for a variety of information about this situation, mostly using personnel policies and attorney-client privileges as their shield,” Dale Bohren, publisher of the Star-Tribune, said in a statement.
“The Star-Tribune believes the reason for Nichols’ demotion is a legitimate public interest and that the university’s interpretation of the laws surrounding this question is overly broad. We think it is appropriate and helpful for a judge to review the university’s use of personnel policies as a shield to keep the public from learning the truth, and we look forward to this judicial review.”
The news website WyoFile and Adams Publishing Group — which owns the Laramie Boomerang and the Wyoming Tribune-Eagle — joined the Star-Tribune on the lawsuit.
“Access to public records — the public’s right to examine the evidence of how officials and institutions behave under their authority, in their name and with their money — is too fundamental to our democracy to let unwarranted denials go unchallenged,” WyoFile chief executive and editor Matthew Copeland said in a statement. “We’d much prefer such transparency didn’t require intervention by the courts, but we owe it to our readers, our community and the ideals of self-governance to pursue the facts, no matter what. This is about much more than one board’s decision-making. It’s about defending Wyoming’s right to know.”
Adams Publishing Group’s Rocky Mountain Group president and Tribune-Eagle/Laramie Boomerang publisher Rory Palm said in a statement that it is “every newspaper’s responsibility” to fight for the access to public records.
“In this specific case, my concern is with the University of Wyoming’s lack of transparency in its decision making,” Palm wrote in a statement. “The dismissal of a university president is a big deal, especially in a state with only one four-year public university, and I believe the students, the faculty and residents throughout this great state deserve answers.”
The university did not respond to requests for comment about the lawsuit.
The lawsuit, filed Friday in Albany County District Court, argues the university unlawfully withheld documents requested by the Star-Tribune following Nichols’ surprise demotion to a faculty position in March. These included requests for records detailing “any investigation into the performance or conduct” of Nichols, as well as a number of other records, including those outlining the terms and conditions of Nichols’ employment at the university and any records relating to an outside investigation of Nichols during her time at the university.
According to the lawsuit, the university declined to provide a number of those records — citing a potential violation of personnel issues and attorney-client privilege — though an attorney for the Star-Tribune, Bruce Moats, wrote that the reasons provided by the university’s legal counsel for doing so were vague. In a letter denying portions of the Star-Tribune’s public records request, Tara Evans — the university’s general counsel — wrote that state law prohibits records custodians from permitting the inspection of “personnel files,” a definition for which is not clearly defined under the Wyoming Public Records Act.
“The term is most commonly defined by courts of other jurisdictions to include ‘performance evaluations,’” Evans wrote in her response. “Hence, any documents responsive to (Star-Tribune education reporter Seth) Klamann’s request are, by definition, specifically prohibited from disclosure.”
Additionally, the lawsuit also states the university refused to provide a list of the records it was withholding — a potential violation of the law, the lawsuit states — because it keeps the petitioner from being able to discern for themselves whether the particular documents being withheld were subject to either exemption.
Though such a log is required under federal law, Evans wrote, there is nothing in state law — as well as no legal precedent in Wyoming — to require a similar log under current statutes, making the disclosure of any such privilege log “specifically prohibited from production” by the terms of the Wyoming Public Records Act.
Friday’s lawsuit comes amid months of tensions over public records law in Wyoming.
Despite passing an upgraded version of the state’s public records law during the 2019 session, state lawmakers have already begun weighing potential changes that could be made to the law, despite Gov. Mark Gordon’s efforts to increase transparency through a public records task force that has convened throughout the year.
The Wyoming Press Association — of which the Star-Tribune, the Tribune-Eagle and the Boomerang are members — declined to sign onto the lawsuit against the university, according to WPA director Darcie Hoffland, citing unspecified concerns.
“Initially, (the association) was in favor of joining the lawsuit,” Hoffland said. “However, there were some initial concerns expressed by some of the board members that the entire membership of the association should be consulted regarding the decision.”
In response, a poll was cast and, out of the 19 newspaper publishers to respond to the poll, only five members of the association voted in favor of joining the lawsuit.
Earlier last week, the Wyoming Tribune-Eagle filed a separate lawsuit against Laramie County School District No. 1 in Cheyenne after the district failed to disclose public records detailing an investigation into racist and homophobic behavior allegedly exhibited toward students at a local middle school by peers and staff at the school.
With these events in mind, Friday’s lawsuit marks an effort by the Star-Tribune to try to “set the tone” for how public records law will be handled in the future, Bohren said.
“When an organization like the University of Wyoming doesn’t give public information, then they set the tone for the next time there’s something that we want to know,” Bohren said. “They’ll never give us any information ever again. So you have to sort these things out; you have to be willing to go to the line. You don’t have to be a jerk about it, but you have to go — you have to enter the fray, and you have to finish. That’s all we’re doing here.”
Unlike states like New York, Wyoming does not have a process in place to appeal the denial of certain records, Moats said, leaving the courts as the only solution available to entities seeking public records.
Only by establishing precedent in the courts, he added, can Wyoming’s public records law truly be defined.
“Law is essentially not only made by the courts but by the practice of government which, in essence, makes law,” Moats said. “If we didn’t contest this action, then we’d basically be allowing that practice of withholding documents we don’t believe should be withheld to not only be used by that particular entity but are likely to be adopted by others as well.”