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THE BURLINGTON FREE PRESS vs. THE UNIVERSITY OF VERMONT |
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WASHINGTON SUPERIOR COURT |
xxxxxThis matter is before the court on the plaintiff's "Motion for Preliminary Injunction" dated December 7, 1999. The Burlington Free Press [hereinafter Free Press] seeks an order compelling the University of Vermont to produce certain documents for inspection by the Free Press under the Vermont statute governing access to public records. See 1 V.S.A. 315, et. seq. At a hearing held on December 10, 1999, the court arranged to review the documents in camera, and this ruling follows.
xxxxxBeginning in September 1999, University of Vermont [hereinafter UVM] officials received word of hazing on its hockey team, and it understood certain steps to deal with it. In late October, it received a written complaint from the attorney for a member of the hockey team. In response, UVM initiated a formal investigation, and arranged that it be conducted by a local independent law firm. By early November 1999, the Free Press got wind of the allegations and on November 11 wrote UVM requesting a long list of documents it knew, or suspected, UVM had that would: 1) reveal the nature of the allegations, and; 2) UVM's actions as a result. UVM refused, and appeal to the UVM president, Judith A. Ramaley failed.
xxxxxAs an instrumentality of the State, UVM falls within the meaning of the term "public body" under 1 V.S.A. § 310 (3). See the Animal Legal Defense Fund v. Institutional Animal Care & Use Comm., 159 Vt. 133, 616 A.2d 224 (1992). That much does not seem to be disputed. UVM, however, claims that all of the documents sought by the Free Press may not be disclosed under exceptions in 1 V.S.A. § 317 relating to: student records, confidential and privileged attorney-client communications, or attorney work product. With respect to student records, the matter is further complicated by the reference in 1 V.S.A. § 317(11) to the "Federal Family Educational Rights and Privacy Act of 1974 (P.L. 93-380) and as amended" [hereinafter FERPA]. See 20 U.S.C. 1232g. Under FERPA, certain student records may be disclosed in certain circumstances, and the state and federal law on the subject is anything but clear.
xxxxxUVM is in something of a bind in this case because FERPA provides in part that:
No funds shall be made available under any applicable program to any educational...institution which has a policy or practice of permitting the release of educational records (or personally identifiable information contained therein...) of students without the written consent of their parents to any individual, agency or organization...
20 U.S.C. § 1232g(b)(1). There are a number of exceptions in FERPA, including the consent of the student's parents, see 20 U.S.C. § 1232g(b)(2)(A), and records furnished in compliance with a court order (with some exceptions), see 20 U.S.C. § 1232g(b)(2)(B).
xxxxxFERPA defines education records as records which "contain information directly related to a student and are maintained by an educational agency or institution..." 20 U.S.C. §1232g(a)(4)(A)(i)-(ii). One federal court has interpreted this language in the broadest possible way. See United States v. Miami Univ., No. C-2-98-0097 (D. Ohio Feb. 12, 1998) (Smith, J.) (order granting preliminary injunction) (see copy provided in tab 4B of UVM's brief). Any inclination to reveal information by a university in UVM's position, which has received information regarding allegations of hazing, would naturally be chilled in light of the FERPA provisions. Absent court order, or the consent of each individual member of the entire hockey team, one can hardly see what a university could do as a public body to shed light on the subject, and inform the public of the steps taken to deal with the problem. The law is insufficiently clear for UVM to run the risk of disclosure without resistance to the Free Press lawsuit in this case.
xxxxxAs stated, UVM has refused to provide information regarding rumors of hazing by members of the hockey team, citing the exceptions in 1 V.S.A. § 317, In particular UVM points to subsections: (3) attorney-client privilege and work product; (5) criminal or disciplinary investigation; and (11) student records. Since this court's hearing on Friday, December 10, 1999, the student whose attorney contacted UVM in September concerning alleged hazing on the hockey team, and who wrote a formal complaint to UVM President Judith Ramaley on October 28, 1999, has filed a Complaint in United States District Court in Burlington. The details of the allegations were widely reported over the weekend on local television and in the newspaper, before this court has viewed the documents at the UVM General Counsel's office on December 14, 1999.
xxxxxIn light of the allegations in the complaint, the following language in FERPA is of interest:
Nothing in this subsection shall be construed to prohibit an institution of postsecondary education from disclosing the final results of any disciplinary proceeding conducted by such institution against a student who is an alleged perpetrator of any crime of violence (as that term is defined in section 16 of Title 18), or a nonforcible sex offense, if the institution determines as a results of that disciplinary proceeding that the student committed a violation of the institution's rules or policies with respect to such crime or offense.
20 U.S.C. § 1232g(b)(6)(B).
xxxxxAs revealed by the federal court complaint, which this court received through counsel for UVM, the allegations fit with the above section. The allegations on their face suggest, if not actual force, unspecified threats amounting to unwelcome persuasion involving underage drinking, sexual acts, and nudity, some of which would rise to the felony level if detected by the police. The Vermont Attorney General is opening an investigation and Governor Dean was reportedly so motivated by the seriousness of the allegations that he attended his first UVM Board of Trustee's meeting on Saturday, December 11. Not a day goes by without a prominent article in the Free Press and a story on the local television news. Nevertheless, UVM has not, and probably cannot, respond voluntarily.
xxxxxThis court has spent many long hours reviewing the documents provided by the UVM General Counsel's office. In addition to those created by November 11, 1999, the date of the Free Press request, the court has reviewed documents through Friday December 10, 1999, the date of our hearing. This was done on the basis of judicial economy, knowing that while documents after November 11 are probably outside the Free Press' initial request, the court would just be back here next week reviewing documents under another request.
xxxxxThe court has chosen to order disclosure of some of the documents. Those to be disclosed reveal little about the students themselves but largely detail the actions UVM has taken since the student's lawyer, Gail Westgate, made her initial complaint to UVM officials in September 1999. Since all the details in the federal court complaint are now public, nothing is added by disclosing the written complaint of Attorney Gail Westgate to UVM President Judith Ramaley dated October 28, 1999. It is among the documents this court has ordered disclosed, including a sample of the findings and sanctions imposed by Coach Gilligan upon the hockey team. In addition, the court notes that the student who has made the complaint, and is not the plaintiff in the federal court case, has thereby abandoned any protection of his identity as it was revealed in the federal court documents and has been widely reported. The hockey team in general has been implicated and its membership is public knowledge.
xxxxxThis court has not ordered disclosure of the interview notes and transcripts of the interviews of each of the students on the hockey team taken by the law firm hired by UVM to conduct the investigation. These, in the view of this court, are student records, disclosure of which would shed little light on UVM responded to the situation. The court sees no source in the law to disclose them without the consent of the adult students or their parents. Other documents, in my view, were either work product or attorney-client communications. There are some documents, in recent weeks, that the court has not seen that were apparently communications between lawyers and UVM officials directly commenting upon and assessing UVM's legal position. These would, of course, be attorney-client communications, and therefore privileged.
xxxxxAttached is a list and identification of the documents I reviewed. I have ordered UVM to disclose some and not others, as indicated following a description of each document. It is imperative that every possible step be taken to carefully redact the names of individual students where necessary. To that end this court suggests that new photocopies of the redacted documents be made so that student names cannot possibly be discerned. In addition, the court notes that the student who made hazing complaint and is the plaintiff in the federal court case, has thereby abandoned any protection of his identity as it was revealed in the federal court documents, which has been widely reported.
xxxxxThis order is stayed until 4:30 p.m. Monday, December 21, 1999. At that time, if no appeal has been taken, the clerk is to return the sealed file containing the documents to the attorneys for UVM, who will then as soon as possible, consistent with the notice provisions of FERPA, disclose them to the Free Press and other media by making them available for inspection as public documents.
xxxxxIf prior to 4:30 p.m., Monday, December 21, 1999, an appeal is taken by either side, the clerk is instructed to deliver the sealed file containing the documents to the Supreme Court to be opened and reviewed as the Justices deem necessary. It is ordered that the file remain sealed pending the Supreme Court's review. In no event is the sealed file to be opened prior to its return to counsel for UVM or delivery to the Supreme Court. If an appeal is taken, a further stay is granted until 4:30 p.m. Monday, December 27, 1999, to allow the Supreme Court time to consider the question.
Dated at Montpelier, Vermont this 15th day of December, 1999.
[signed Alden T. Bryan]
Hon. Alden T. Bryan
Presiding Judge
Materials provided and represented to be responsive to the Free Press requests:
1. Letter from Attorney Gail Westgate, representing Corey LaTulippe, to Judith A. Ramaley, UVM President, dated October 28, 1999, outlining the complaints, and upon which the wording of the federal court complaint seems largely to be based. Copy enclosed under seal. (Disclose. Nothing new here that has not already been in the press, except possibly the date of the communication.)
2. November 4, 1999, memo from Coach Gilligan to each member of the hockey team regarding hazing allegations, notifying the player of the time and place of his scheduled interview with an attorney investigator looking into the allegations, and enclosing a copy of the Player Infractions of Rules and Regulations. Sample copy enclosed under seal. (Disclose sample copy of the letter. Redact student's name.)
3. Memo dated November 9, 1999 from David Nestor, Associate Vice President for Student Affairs, to coaching staff and two members of the athletic department. The memo is a notice that an attorney member of the investigative team would be calling to arrange an interview. Sample copy enclosed under seal. (As with the memos to members of the hockey team, disclose. No need to redact names.)
4. Contract letter dated November 4, 1999 sent by Francine Bazluke, General Counsel for UVM, to Daniel L. Burchard, Esq., attorney at McCormick, Fitzpatrick, Kasper & Burchard, P.C., Burlington, Vermont. No confidential information relating to the hazing allegations are discussed. Only that the firm is hired to conduct an investigation and the terms of the agreement as to payment, expense money, and the confidential nature of the investigation. (No reason not to disclose. Doesn't even disclose the rate per hour.)
5. Fax dated November 1, 1999 from Cynthia Jones, a lawyer at a Kansas law firm, to Pamela Heatlie enclosing a fax or e-mail (10/30/99) between Jones and a Dave Schnase at NCAA concerning what he might know of hazing as a violation of NCAA rules, and a fax from Jones to Heatlie (11/5/99) enclosing what appears to be an e-mail response (11/5/99) from Dave Schnase to Cynthia K. Jones. Jones is contacted by UVM General Counsel whenever NCAA issues come up. Heatlie knows Jones and contacted her for legal research on NCAA issues. Jones contact Schnase, a person she knows at NCAA, who is familiar with NCAA rules. Heatlie says in paragraph 10 of her affidavit that these are correspondence between attorneys at her direction and are attorney/client communications. (Clearly they are attorney work product relating to research issues that take the form of discussion between attorneys and others with knowledge of NCAA rules on the same side of the issue.) Copy enclosed in sealed file. (Do not disclose.)
6. Friday, November 24, 1999, copy of e-mail and response between Chief Gary J. Margolis of the UVM and Pamela Heatlie informing her that the Free Press sought a comment on the hazing investigation. Heatlie responded in a reply thanking him for the information. Heatlie then forwarded a copy of these communications to Attorney Jeff Nolan, UVM counsel. Copy enclosed under seal. (Not an attorney client communication as between Heatlie and Margolis. Only as between Heatlie and Nolan. Disclose.)
The following are from documents provided that are said to be outside the Free Press requests because they follow in time the Free Press requests (11/11/99), but in all probability will just be the subject of further Free Press requests for documents.
7. Interviews with the coaches conducted by the McCormick law firm on 11/11/99, with one being re-interviewed 11/22/99. The interviews cover what each knew about hazing on the hockey team. The interviews were of Gilligan, Schulman, Farnham, Gervais, Lovelette, Miller, and Digiulian. Few individual players are named, except Corey LaTulippe. Sample copy enclosed. (If student names other than Corey's are redacted, nothing would be revealed about any individual conduct on the part of any hockey player, except for Corey, and then only little about what went on and nothing about what happened on hockey night. Disclose without any names of students except Corey LaTulippe.)
8. Faxed letter from Pamela Heatlie to Gail Westgate of 10/29/99 acknowledging receipt of Gail's 10/28/99 complaint letter (noted above) and asking for more detailed information. Copy enclosed under seal. (Concerns UVM, not any student. Disclose.)
9. Letter of 11/4/99 from Pamela Heatlie to Gail Westgate about follow-up in getting more detailed information from Corey LaTulippe. Copy enclosed under seal. (Reveals nothing about the conduct of any other students. Disclose.)
10. Letter from Gail Westgate to Pamela Heatlie of November 8, 1999. Involves demands for compensation, restates plaintiff's legal positions and claims, encloses some copies of UVM Hockey Team Guidelines & Expectations, Player Infractions of Rules and Regulations, and copies of some court decisions. Copy enclosed under seal. (Not to be disclosed. Has nothing factual to do with any UVM response to the hazing allegations. Is only communications between counsel to the federal court case, the production of which would probably never be required in court.)
11. Letter of 11/8/99 to Gail Westgate from Richie Berger, outside counsel for UVM, concerning requests to interview Corey. Copy enclosed under seal. (Entirely concerns the litigation and communications between lawyers. Do not disclose.)
12. Letter of November 11, 1999, from Mary Kehoe, counsel for plaintiff, to Richie Berger, outside counsel for UVM related entirely to the litigation and their respective positions. Copy enclosed under seal. (Do not disclose.)
13. Memos of 11/16/99 from Pamela Heatlie to Gilligan, Schulman, Farnham, and the others simply transmitting copies of their statements for review and enclosing a correction sheet on which to note any errors. Filled out corrections sheets are attached to the statements. Copy under seal. (Irrelevant to any conceivable issue. No need to disclose.)
14. Memos from Pamela Heatlie in mid-November transmitting to those involved in the investigation on the UVM staff copies of transcripts and correction sheets regarding the student interviews by the McCormick law firm. The correction sheets are not attached to the statements. Copy under seal. (Irrelevant to any issue. No need to disclose.)
15. The statements taken by the McCormick law firm of all the available UVM hockey players. Some are notes of interviews where the student didn't want to be on tape. Others are transcripts. These reveal everything about the participation of each student, and of course, reveal his name. The only exceptions are Corey LaTulippe, who was not interviewed, and one player had left the team and UVM for reasons unrelated to the subject of the investigation by the time of the interviews. He was not interviewed. There are 24 statements or transcripts in all. There were 26 members of the hockey team. I did not read all of the statements, but read the significant parts of the freshman interviews and sampled some of the others. I didn't see the point in reading them all. I read enough to determine whether I thought they should be disclosed. Copies enclosed under seal. (In my view, these clearly are student records entitled to protection by law. Do not disclose.)
16. November 22 memo from Dean Batt regarding the preliminary investigation to each member of the hockey team saying the matter would not be referred to Judicial Affairs, that he was considering whether to invoke the student judicial process, and that the Coach (Gilligan) was reviewing the statements and transcripts and would be deciding what to do. Sample copy enclosed under seal. (Disclose sample with students' names redacted.)
17. Memo of 11/24/99 from Coach Gilligan to each member of the hockey team saying that he had read the transcripts and statements taken during the investigation, saying that he found violations of one or more team rules, and telling them that he would meet with them as a team on November 26, 1999, at which time he would have word on the rules violated and the sanctions to be imposed. Sample copy enclosed under seal. (Disclose sample with students' names redacted.)
18. Memo of 11/26/99 from Coach Gilligan to each member of the hockey team with regard to his conclusions and with the sanction involved Each letter is the same, and includes the same findings and sanction. This letter was apparently handed out at or after the meeting. Sample copy enclosed under seal. (Redact name and disclose sample.)
19. Copy of The Cat's Tale, the UVM student handbook and a planner, and a copy of the Men's Ice Hockey Media Guide. These were shown to me because they are materials that each student would have had. There is no issue as to disclosure. Can be obtained anywhere. No copy provided herewith. (Disclose if requested.)
Review was commenced about 9:00 a.m. Tuesday, December 14, 1999, and concluded about 2:00 p.m.
[signed Alden T. Bryan]
Alden T. Bryan
Presiding Judge, assigned.
Washington Superior Court