Judge allows access to business-related calls on Butch Davis' cellphone

dkane@newsobserver.comAugust 9, 2012 

A state Superior Court judge issued a decision Thursday that appears to pave the way for university-related calls that former UNC football coach Butch Davis made on his personal cellphone to be accessible to lawyers representing the media in a public records lawsuit.

Judge Howard Manning said in the decision that public business conducted by UNC chancellors and coaches on personal cellphones is public. But his decision allows Davis to keep private the cellphone bills to ensure that no personal matters become public.

His decision allows media lawyers to review those billing records to identify university-related calls. The decision, however, does not specifically state that such calls could then be released to the public.

Manning wrote: “(I) do not believe that our government officials, including University officials and coaches, are entitled to use the personal cellphone ‘dodge’ to evade the North Carolina Public Records law. If Chancellors of the UNC system are doing this thinking that they can avoid public scrutiny of their cellphone records by using their personal cellphones to conduct public business, they need to re-think their decision.”

The decision is in response to a public records lawsuit filed by The News & Observer, the Charlotte Observer and other media companies as part of their coverage of a long-running NCAA investigation that culminated in a one-year bowl ban and the loss of athletic scholarships for the football team.

Davis had a UNC-CH cellphone but never used it, acknowledging that he used his personal cellphone for university-related business. At one point, he agreed to make his personal cellphone records public, but he changed his mind after the university fired him.

Media request had been blocked

UNC-CH officials had brought in an outside lawyer to review the records – but not make copies of them – thereby preventing the media from getting the records through the university. They and Davis say the records do not reflect any improper behavior.

Davis’ attorney, Jon Sasser, said Manning’s decision does not mean Davis’ business-related calls will become public – just that the media attorneys will get to review them. He called the judge’s decision a victory because it quashes a subpoena filed by the media attorneys to produce the cellphone records. It also grants Davis’ request that the phone records be kept private, he said.

Sasser said he would also oppose any efforts to make the business-related calls public. He has contended that Davis and other university athletics coaches are not public officials subject to the public records law.

Amanda Martin, an attorney representing the media, said the decision is “a bit hard to decipher” on that point, but she thinks ultimately the business-related calls will be made public. Manning’s decision identifies “Coach Davis’ private calling records for non-public/job-related calls” as needing to be protected.

UNC-CH Chancellor Holden Thorp said the university is reviewing the ruling.

“We appreciate Judge Manning’s attention to this complex case, and we are reviewing his ruling,” Thorp said in a statement. “We are pleased that his decision affirms the privacy of student-athlete information related to academics and protects the important relationship between the university and its counsel.”

Manning told lawyers for both sides to work out an arrangement for the cellphone records review but did not provide a deadline.

Manning also said other records held by UNC-CH related to impermissible benefits received by athletes should be released if they do not involve academic matters – but other records that are part of an attorney-client relationship between the university and a law firm it hired to help with the NCAA investigation are not. Among those attorney-client records, Manning wrote, are recorded interviews of those involved in the NCAA investigation.

Academic records private

The decision means UNC-CH records in which football players were found by the NCAA to have received impermissible benefits such as money and gifts are public, but those pertaining to academic issues – such as cheating – are not. Manning also wrote that unfounded allegations of NCAA violations are not public record.

Student education records are largely protected by the federal Family Education Rights and Privacy Act, commonly known as FERPA.

Manning also found the media may be entitled to “some award of attorneys’ fees” from UNC-CH, but said that would have to be determined “by separate order and hearing if necessary.”

Kane: 919-829-4861

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