Judge: Decision will come later on UNC football records

Judge indicates he’ll hand down a decision at a later time

dkane@newsobserver.comJuly 19, 2012 

State Superior Court Judge Howard Manning reserved judgment Thursday in a public records battle related to the lengthy NCAA investigation into UNC-Chapel Hill’s football program.

“This is not going to be decided today by any means,” Manning said after listening to nearly two hours of legal arguments from lawyers representing the university, former football coach Butch Davis and a consortium of media companies seeking the records.

At issue is the release of bills for Davis’ personal cellphone, which the coach has admitted he used to make calls related to running the team, as well as other documents related to the investigation that would show who committed the violations that led to major penalties against the team and how the university handled them.

Davis’ attorney, Jon Sasser, contends the phone bills should not be made public because Davis was not a public official under the law, and the release might expose phone numbers of people not connected to the case. He also disputed the records’ informational value.

“It’s just like if (UNC basketball coach) Roy Williams wants to burn the midnight oil, is his Progress Energy bill a public record?” Sasser asked.

Manning questioned that line of reasoning, noting that it would be of public interest if Davis’ phone records showed, for example, that he had talked with a football player at a time when the player was receiving an improper benefit from a sports agent.

The university says it has released all that it considers to be public under the law. It says it can’t release more because of a federal law making many student records private and because some of the records are protected under attorney-client privilege.

“There has been plenty of detailed information about what these students have done,” said Marc Bernstein, a special deputy state attorney general representing the university.

Lawyers for the media companies, including The News & Observer and The Charlotte Observer, say the phone bills as they pertain to public business should be released. One of the attorneys, Hugh Stevens, said his clients would consent to allowing Davis to redact the personal information from the bills so long as he signed an affidavit attesting that he had provided all the calls related to public business.

He said the public records law holds that any record created as part of public business is public regardless of how it was created.

Amanda Martin, another attorney representing the media, said the university has interpreted the federal Family Educational Rights and Privacy Act too broadly to withhold records that do not pertain to educational matters. She said records showing impermissible benefits such as air travel, hotel rooms and other perks unrelated to academic help should not fall under the federal law.

Bernstein said FERPA’s reach goes beyond obvious academic records such as transcripts. He cited as an example a 1996 North Carolina case in which the courts ruled that FERPA allowed for closed hearings related to a misconduct case involving the confiscation of hundreds of magazines from racks on the Chapel Hill campus.

Kane: 919-829-4861

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