Tuesday, January 31, 2017

UNC Puts Public Records Requests to Its Advantage


The public has been granted a rare glimpse into some of the interim dialogue in the pending NCAA infractions case involving the University of North Carolina at Chapel Hill (UNC-CH). Some illuminating emails between NCAA Enforcement, the Committee on Infractions and UNC's legal defense team of Bond, Schoeneck & King (BSK) have given the public the opportunity to see the arguments UNC is making as it defends itself against allegations of rules violations.

UNC has boasted of its "openness and transparency" over the last several years as it has addressed, and sought to resolve, past academic misconduct issues and the resultant NCAA infractions case. Though constrained by NCAA bylaw 19.01.3 regarding public disclosures about the case pending a final decision, North Carolina Public Records Act, G.S. §132-1 supersedes the internal rules of a voluntary membership organization like the NCAA; and since UNC-CH is a public institution and is subject to state open records legislation, it must release certain created documents in response to requests (with certain limitations).

To its credit, UNC-CH has responded, and in some cases anticipated, some of the public requests by creating Web-based resources for such requests. Its public records request page allows private citizens and media to see existing (and find instructions for submitting) requests for public records disclosure. The CarolinaCommitment portal is an outlet where UNC has provided access to many documents and information throughout most of the scandal coverage, particularly those related to reviews and investigations such as the current NCAA enforcement case.

UNC has been understandably strategic in how, or even if, it shares information, whether voluntarily or in response to public requests for disclosure. There has undoubtedly been a public relations element to the timing and choice of release of information, which is evidenced in this latest phase of the NCAA Infractions Case.

Last Summer (2016), after UNC responded to the NCAA's Amended Notice of Allegations, the case followed an unusual course before taking an unexpected turn in December. The infractions process clock was reset, yet again, when a 2nd Amended Notice of Allegations was presented to UNC.

The following is a chronological summary of the communications between UNC and NCAA during this time frame, and when those documents were made public, with public records request information noted where applicable. My critique follows the chronology.

Chronology of Communications and When Released


Monday, August 1st

  • UNC Responds to ANOA


 Tuesday, August 2nd



 Monday, September 19th

  • NCAA Enforcement responds to UNC Response
  • NCAA Enforcement issues Statement of Case


 Monday, September 26th

  • OCOI notifies All parties of scheduling and agenda for a 10/28 hearing 


 Friday, September 30th

CarolinaCommitment.unc.edu


 Friday-Wednesday, October 14th - 19th

  • UNC, OCOI and Enforcement exchange series of communications re. procedural issues for the 10/28 hearing


 Tuesday, October 25th



 Friday, October 28th

  • COI procedural hearing (minutes not made public)


 Monday, November 28th

  • COI Chairman letter announces hearing panel's decisions to All Parties


 Tuesday, December 13th

  • NCAA Enforcement notifies UNC of AANOA 


 Wednesday, December 21st

  • UNC responds to COI chair on November 28th letter and December 13 2nd Amended NOA


 Thursday, December 22nd

Critique


While UNC is to be commended for being responsive to these public requests, it strikes me that it is also very judicious in how and when it chooses to respond.

For instance, the release (and posting on its CarolinaCommitment update page) of many documents on October 25th came three days before the scheduled COI hearing, and included the contentious documents that the COI had ruled were not going to be entered into evidence before the panel. Perhaps the unusual alacrity of fulfilling the requests had no strategic public relations intent and was merely the priority UNC should give to requests from media outlets. The public requests did provide UNC the necessary cover to make its case public, before the hearing panel convened, overriding the usual cloak of secrecy required by NCAA rule 19.01.3.

Likewise, the flood of information the University released on December 22nd was also managed to present UNC's rebuttal in public view at the same time the public learned of the hearing panels rejection of UNC's jurisdictional/procedural arguments and release of the third Notice of Allegations. Again, UNC cited relief from rule 19.01.3 due to public records requests. Perhaps UNC was, for once, grateful for Dan Kane's persistence in seeking records from the University.

NCAA Enforcement and the Committee on Infractions are not returning fire in the court of public opinion. The NCAA is not subject to public disclosure laws and must abide by NCAA rules and protocols regarding public disclosure. As a result, we've seen a real campaign, both official and unofficial, to present UNC's complaints to the public about NCAA's "breaking protocol" and "overreaching" conduct, but none from NCAA sources in rebuttal. 

There then are the unofficial contributions to this campaign from which the University can claim insulation.

Thursday, December 22nd, 2016
Thursday, January 19th, 2017

Wednesday, January 25th, 2017

And since we're on the subject of public release requests, here are few that UNC has not yet fulfilled (and one that it had denied):

On December 3rd, 2015, News & Observer investigative reporter Dan Kane requested transcripts of interviews conducted by UNC and NCAA in August/September 2011. UNC denied the request, citing personnel and privacy laws. Kane's story ran in October 2016. 

On April 26th, 2016, News & Observer investigative report Dan Kane requested
  1. "All correspondence between UNC-Chapel Hill, its attorneys, consultants and other agents on its behalf and the NCAA from May 20, 2015, to April 26, 2016, relating to the first Notice of Allegations in the academic-athletic scandal and the second Notice of Allegations."
  2. "All bills related to legal and public relations work involving the scandal since the last bills were provided."

A private  individual named Erv Thompson requested, on April 28th, 2016:
 "... copy of all communications of any nature between UNC and/or its agents and the NCAA from April 1, 2016 to April 11, 2016, inclusive. This includes but is not be limited to letters, emails, faxes, social media and electronic media, as well as notes and recordings or transcripts of telephone conversations. For the purpose of this request, “agents” refers to any individual or entity acting on behalf of the university. It also includes communications between UNC and any legal firm hired or retained by UNC and the NCAA, excluding of course any documents that meet the criteria for lawyer/client privilege."

On October 8th, 2016, News & Observer investigative reporter Dan Kane requested billing records related to the (about) 10 student-athletes who'd been provided attorney services in conjunction with the Special Bureau of Investigations (SBI) inquiry from 2012-2013. Also requested are claims in the UNC response to the ANOA that "NCAA enforcement division has agreed not to include information that came from [former employee name] and [former employee name]’s interviews with Ken Wainstein...”

A private individual named Anna Truax requested, on August 24th, 2016:
 "...all communications between the NCAA and UNC Compliance personnel, the [position title], and the [position title] and her staff related to the NCAA’s investigation of UNC-CH, including records related to either the original NOA or the amended NOA. The requested records are limited to those occurring between May 20, 2015 and April 25, 2016. The requested records include, but are not limited to, both written and electronically transmitted records, as well as notes and/or transcriptions of telephone and in-person discussions." 


Some of the correspondence released by UNC on October 25th and December 22nd, 2016 are responsive to these requests, but the requests remain open, presumably because the requested documentation is more extensive than what the University has chosen to release.


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