APG Media of the Rockies, the parent company of the Laramie Boomerang and the Wyoming Tribune Eagle, has joined the Casper Star-Tribune and WyoFile in asking Albany County district court Judge Tori Kricken to review the University of Wyoming’s refusal to release records regarding the demotion of outgoing UW President Laurie Nichols.
Cheyenne attorney Bruce Moats filed a petition on behalf of the three news organizations Friday. The media are exercising a portion of the Wyoming Public Meeting Act that states “any person denied the right to inspect any record covered by this act may apply to the district court of the district wherein the record is found for an order directing the custodian of the record to show cause why he should not permit the inspection of the record.”
The petition suggests that “the University hired a third party to investigation President Nichols in response to a complaint.”
The Casper Star-Tribune had “sought any records setting forth the terms and conditions of employing/retaining an individual and/or entity to conduct an investigation into the conduct or performance of President Nichols, as well as any records related to retaining an investigator.”
“We don’t know that there was an investigation, but we believe there was one around February and March,” Moats told the Boomerang. “But that’s one of the contentions here. The university won’t even acknowledge that they have such a report.”
Under Wyoming’s case law, a government agency that withholds documents must “provide a log” of the records “identifying the nature of each record withheld and the reasons why withdrawal of each record is legally permissible.”
Moat’s legal challenge states that UW has refused to provide that log of records and, as a consequence, a judge should order “automatic disclosure of the records,” as provided by the 1983 case of Sheridan Newspapers v. Sheridan.
“In the alternative, if the court decides not to order automatic disclosure of the withheld records, then it should order the respondents to provide the information required by law justifying the withdrawal of each record, submit the disputed records for in camera inspection by the court, then order respondents to show cause why the records should not be provided, and order those documents that do not fit any exemption released to the public,” Moats’s petition states.
When APG and WyoFile decided to join in the court action, neither had requested the records the Casper-Star Tribune had requested.
However, Moats told the Boomerang on Thursday that both organizations should have standing to be parties in the action because the Wyoming Public Records Act stipulates that if a record is provided to one media outlet, that record must be provided to all media.
“Thus, a denial to one requester is a denial to all,” Moats writes in his petition.
Moats said that the Wyoming Press Association has similarly been allowed to participate as a party in lawsuits regarding records access.
However, he acknowledged that that issue of standing hasn’t been challenged. In case UW does try to challenge the standing of APG and WyoFile, Moats decided to make a formal request to UW Thursday on behalf of the two news organizations for the records that Casper Star-Tribune had previously sought.
In the wake of the March announcement that UW would not renew Nichols’s contract, the Casper newspaper requested on April 10 any documents related to any investigation into the performance of conduct of Nichols.
“The university did not acknowledge whether it had such documents, but contended that if such an investigative report did exist, it would be exempt from public disclosure pursuant to the so-called ‘personnel files’ exemption to public disclosure,” Moats’s petition states. “In addition, the university vaguely cited attorney-client privilege as justifying non-disclosure.”
On April 2, the Casper newspaper had also sought “all public records of communications that include Dave True, Jeffrey Marsh, Kermit Brown and John McKinley that include any of the following keywords: Nichols, Laurie, president, sweep, scrape, renewal, evaluation, Steve Portsch, Portch” from the end of 2017 to April.
Steve Portsch was the person hired to conduct Nichols’s performance review in 2018.
The university did provide some of the documents while denying others June 6.
The newspaper had paid $720 for the 18 hours of work that UW said it took to compile the records.
UW did not complete the entire records request and said that “it would resume the process once the newspaper paid $720 for another estimated 18 hours of professional time.”
Under the Wyoming Public Records Act, governmental agencies can, but are not required to, withhold records that are part of a personnel file or investigative reports so long as releasing the documents “would be contrary to the public interest.”
Moat’s petition states that “public access to an investigation into the conduct or performance of the leader of the state’s only university is clearly a matter in which the public has a legitimate interest.”
When news organizations in 2013 successfully sued the university to turn over the names of finalists for the presidency, state leaders had tried to argue that publicizing information about the presidential search would prevent UW from securing the best candidates.
Moats said he feels it would be foolish if UW were to try using that same argument to contest that releasing information about Nichols’s demotion would prevent top candidates from wanting to succeed her.
“I think it would be logical to think that any candidate interested in the job would want to know what happened with Nichols,” Moats said. “I would respectfully argue that what took place here has the potential to discourage a candidate from being interested.”