Appeals court hears arguments in open records battle between UT and Statesman

An attorney for the American-Statesman, arguing in a state appeals court, insisted the newspaper has the right to see the disciplinary records of University of Texas students accused of sex offenses .

The Statesman requested the information two years ago as part of a larger USA Today Network investigation into sexual offenses by college athletes, then filed a complaint when UT refused to produce the records .

A trial court judge sided with the media organization, saying state law required the information to be disclosed because the UT failed to seek the opinion of the attorney general of Texas on whether the files could be withheld.

UT appealed, leading lawyers for both parties to the 8th El Paso Court of Appeals, where oral argument took place online Thursday after the case was transferred out of the Austin appeals court. .

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“The statesman brought this case under the Public Information Act for a reason, namely to uncover documents which had been illegally withheld from the public by the university,” he said. Maitreya Tomlinson, an Austin attorney representing the media organization, told the three appeals court judges. panel of judges.

The information, he added, was intended for a broader analysis of student-athletes who have been sanctioned for sexual assault but allowed to be transferred to another school and continue to compete. The investigation, released in December 2019 without UT documents, identified at least 28 current or former athletes who have been permitted to transfer to NCAA schools since 2014 despite having been penalized for an offense sexual in another college.

But Deputy Attorney General Melissa Mather, representing UT, argued the school was justified in withholding information because state law exempts student records from public disclosure.

Additionally, she argued, state law allows UT to draft student files without first seeking permission from the attorney general’s office to withhold the information.

“I’ll tell you what bothers me about this,” Judge Jeff Alley interrupted. “It looks like you could have responded to the statesman and said, OK, look, here are the 79 cases and we’ll tell you what the charge was and maybe what the decision was, but we’ll redact… personally identifiable But you didn’t. You didn’t give them anything. You just told them to go pound the sand.

How could the redaction exemption apply, Alley asked, if no redacted information was provided?

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State law, Mather replied, allows UT to draft or withhold information that is broadly defined as a student record.

“All they asked for was a student record,” she said. “Basically, if we were to give them anything, it would be a blank sheet of paper.”

But Tomlinson, the newspaper’s attorney, argued state law prohibited UT from withholding files because school officials failed to seek permission from the attorney general’s office. The only way around that is to show that withholding information trumps the public’s right to know – and UT has never tried to make that point, he said.

“You had your chance; you didn’t take care of it,” Tomlinson said. “You have to disclose this.”

Tomlinson also rejected UT’s argument that disclosure of the records could potentially identify victims of sexual offenses, saying the information should be able to be redacted. Still, with no documents released, even for private review by a judge, the argument is speculative, he said.

“At the moment, we can only guess what’s in there because it’s not on the record,” he said.

The statesman requested, under the state’s public records laws, disciplinary information including the name of the accused student, the violation committed, all of the university’s findings supporting his conclusion that a violation has occurred and all penalties imposed by the school.

While UT refused to release the documents, the University of Texas-El Paso released the requested information.

Mather argued that universities have the discretion to reveal or withhold student records.

“Both decisions are authorized under the law,” she said. “They could make a voluntary disclosure, but they also have the right to withhold under the specific exception for student records.”

The court of appeal has no time limit to rule.

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