Judge: UW must give Nichols docs to media

LARAMIE — Albany County District Court Judge Tori Kricken ruled Friday that the University of Wyoming must turn over, within 30 days, numerous records related to former UW President Laurie Nichols to several news organizations, including the Laramie Boomerang, the Casper Star-Tribune and Wyofile.

If upheld by the Wyoming Supreme Court, Kricken’s ruling could give the public a glimpse into the reasons the university’s board of trustees opted not to renew Nichols’s contract after negotiating one in 2019.

However, the records — including emails among trustees regarding a drafted contract extension for Nichols and investigatory materials concerning the ex-president — are unlikely to be made public within the next month; UW spokesman Chad Baldwin told the Boomerang that the university plans to appeal Kricken’s ruling.

The news organizations had united to petition a court review of UW’s denial of several public records requests made by Star-Tribune reporter Seth Klamann.

After UW announced in March that Nichols would not return as president for the 2019-2020 academic year, Klamann started requesting numerous records related to Nichols’s outing, beginning with a March 28 request for emails including the board of trustees’ four most powerful members that included the keywords “Nichols, Laurie, president, seep, scrape, renewal, evaluation, Steve Portch, Portch.” Portch had conducted Nichols’s performance review in 2017.

UW’s attorneys found 2235 emails related to that search, and released just 157 pages of which to the Star-Tribune.

The university had argued the rest of the emails were not public records as defined by Wyoming law.

UW claimed a “deliberative process privilege” for emails regarding proposed terms of a contract renewal for Nichols, citing Wyoming statute that says governments can withhold from the public “intraagency memoranda or letters” on the “ground that disclosure to the applicant would be contrary to the public interest.”

However, after she privately reviewed those withheld emails, Kricken ruled that deliberate process privilege is not relevant to any of the withheld emails, citing a Wyoming Supreme Court ruling that says such deliberative process privilege can only be used to withhold documents that would give a misleading pictures of a governments’ position.

That is not the case with the trustees’ emails regarding Nichols’s proposed contract renewal.

“The documents include suggestions for amendments to the proposed renewal contract under negotiation, and suggestions for amendments to the proposed renewal contract  under negotiation,” Kricken said.

“No deliberation is reflected; no methods of reasoning, and, in fact, no discussion at all is included in the communications. They simply include proposed text to attach to a draft of Dr. Nichols’ renewed employment contract during negotiations, with some changes noted within the contract itself. Nothing within the communications is ‘so candid or personal in nature that public disclosure is likely in the future to stifle honest and frank communication within the agency.’

“The public has a compelling interest in knowing the employment details of the President of the only university in the state of Wyoming and how public funds are being used, and, while the contract was never finalized, the communications in dispute contain little or no private deliberative information regarding the discussion or decision-making process on the part of the board.”

Kricken also ruled that UW’s invocation of attorney-client privilege was an inappropriate reason for the university to not provide copies of emails that involved UW’s general counsel. The judge will, however, allow the university to withhold a few requested emails that Kricken ruled are, in fact, eligible for attorney-client privilege to be invoked.

“However, the fact that general counsel is a party to, or even the author or recipient of, a communication does not automatically make the communication privileged when it does not seek to offer legal advice,” Kricken said.

For the emails that UW doesn’t need to release because Kricken determined attorney-client privilege applies, the university will still need to provide news organizations with a “privilege log” for those withheld records.

A privilege log is a list of individual records that attorneys are having withheld, including the grounds for which each record is being withheld.

When UW had originally denied much of the Star-Tribune’s record requests, the newspaper requested a privilege log, citing Wyoming Supreme Court precedent.

UW refused that request and contested the newspaper’s interpretation of the case law.

Ultimately, Kricken sided with the petitioning news organizations, saying that that a privilege log needs to be provided in order to give “a meaningful chance to evaluate the basis for the denial and to test the denial in a fair and adversarial manner.”

Kricken also ruled that records regarding investigations of Nichols are also public.

On April 10, Klamann had requested “all public records of reviews or investigations into President Laurie Nichols’ performance or behavior conducted by the University of Wyoming’s Board of Trustees or at their direction…that was conducted earlier this year by an independent investigator, group or firm and that contracted current and former employees.”

Additional reporting by the Star-Tribune and Wyofile published in September indicated that the trustees did, in fact, have Nichols investigated by an outside law firm shortly before her dismissal. The news organizations made more specific records requests regarding that investigation; those requests were also denied.

Nichols continues to say she was unaware of such an investigation, and her inability to participate in such an investigation means any investigation was conducted in violation of UW’s regulations, her attorney claims.

UW contended that records regarding investigations of Nichols are not public records because the Wyoming Public Records Act states that governments “shall deny the right of inspection” of “personnel files.”

Wyoming statute does not define “personnel files” but does list “applications, performance ratings and scholastic achievement data” as things that documents subject to the “personnel files”-exemption.

In turn, “employment contracts, working agreements or other documents setting forth the terms and conditions of employment of public officials” are all listed as examples of public records not subject to the “personnel files”-exemption.

Kricken said the documents UW is withholding are more aligned with the examples of records that state law says are not subject to the “personnel files”-exemption.

And because state law does not define “personnel files,” Kricken said that not every document that resides within an employee’s personnel file can be withheld regardless.

“This Court finds that the personnel filed exception…exempts from disclosure only those records within a personnel file the disclosure of which would constitute an unwarranted invasion of privacy,” Kricken ruled. “In practicality, if the personnel files exception were to be interpreted without limiting its application to documents implicating a personal privacy interest, the state government and its agencies would have the unfettered ability to withhold almost any document from inspection simply by placing it within an employee’s personnel file.”

Kricken did say she intends to protect against unwarranted invasions of privacy in the case by redacting the private information of “third-party individuals” that aren’t Nichols or trustees.

Kricken also rebuked another one of UW’s arguments for withholding the investigatory files: That the Wyoming Public Records Act states that ”records or information compiled solely for purposes of investigating violations of, and enforcing, internal personnel rules or personnel policies the disclosure of which would constitute a clearly unwarranted invasion of personal privacy” should be withheld.

In this case, Kricken said the public interest in the case means that the release of the investigatory materials would not constitute such an “unwarranted invasion.”

“Quite simply, public employees, especially those who, by nature of their position, are subject to increased scrutiny and notoriety, such as Dr. Nichols and the board, have a decreased interest in privacy,” Kricken ruled.

“Because of the public’s great interest in understanding why governmental and public employees behave in their professional capacities and how they conduct the business of the state, access to such public records generally is permitted even at the risk of injury to official reputation or the private interests of those individuals in keeping information confidential.”

One issue on which UW did prevail in Kricken’s court was regarding how much the Star-Tribune was charged for the records requests to be fulfilled.

After spending the time to review and redact the initial 2235 requested emails, the university billed the Star-Tribune for $720.

As part of the court review, the news organizations argued those costs to the newspaper were unreasonable. Kricken ruled otherwise and said UW’s billing was appropriate under state law.

Bruce Moats, the Cheyenne attorney who represented the new organizations in the case, said that Kricken’s ruling “once again reaffirms the public interest in these kinds of matters and the importance of that public access to our democracy.”

Star-Tribune Publisher Dale Bohren said in an email that the ideas at debate in the case have greater implications than just how UW is managed.

“This suit was about a larger and even more important issue, and that is about how public information is curated by publicly-funded institutions and how that information is disseminate to the public, including newspapers,” Bohren said.

“I believe every single member of the UW Board of Trustees wants what is best for the university and for Wyoming. That is why this precedent-setting District Court ruling is so important; it gives clarity to the good faith behavior we can and should expect from public institutions with respect to the records of how they fund and perform the public’s work.”

In December, Nichols was named the permanent president of Black Hills State University in Spearfish, South Dakota.

Months after the news organization was first filed in Kricken’s court, Nichols joined as a party to the case and argued Kricken should deny the records request, saying that access to those documents would constitute a “unwarranted invasion” of her privacy.

“The Court is not persuaded by Dr. Nichols’ assertion that Petitioners’ “curiosity” does not give rise to public interest,” Kricken wrote.

“Petitioners comprise several news organizations who are in the business of disseminating information for public consumption, and given the frequent appearance of this litigation in local and state-wide news media, the Court is quite convinced that this is a matter of general public interest, to say the least. …The Court notes that Petitioners, as news agencies, are members of the public and represent an important facet of the public’s ability to disseminate information.”