As demonstrated in Friday’s investigative report into Louisiana State University by the law firm Husch Blackwell, schools sometimes go to great lengths to shield sexual misconduct from public view.
I’ve spent the last four years investigating universities’ and law enforcement’s handling of campus sexual assault, including as a reporter on the team that uncovered the problems at LSU. (It was USA TODAY’s reporting that prompted LSU to hire Husch Blackwell to investigate.)
As part of my work, I have submitted hundreds of public records requests to colleges and universities across the nation for documents related to sexual misconduct. (For the LSU reporting alone, I’ve sent more than 100 such requests.)
And I’ve learned that not all institutions give up those records willingly. Here’s how those schools, including LSU, keep those records under wraps:
1: Using their “discretion”
Let’s start with school disciplinary records. In 1998, Congress amended the federal student privacy rights law known as FERPA to give colleges and universities permission to publicly disclose information about students found responsible by the school for violent and sexual offenses. Lawmakers’ thinking during the floor debate was: For students to be able to protect themselves, they need access to basic, limited information about these offenders: their names, the offenses they committed, and the sanctions imposed against them.
Fast forward two decades. For a December 2019 USA TODAY investigation called Predator Pipeline, I tested this law at all 226 public universities that compete in Division I sports – NCAA’s highest tier of competition. I requested that same limited information for every disciplinary proceeding since 2014 in which a student was found to have committed a sex offense. Of those schools, 190 did not provide the records – that’s 85%, or 5 of every 6. Many of them, including LSU, claimed the law gave them permission to release the records, but that it did not require it. Ultimately, they claimed, they had the discretion to release the record or not.
This interpretation did not hold up when the University of North Carolina at Chapel Hill’s student newspaper, the Daily Tar Heel, and other news outlets in the state sued the school for access to similar records. UNC fought it all the way to the North Carolina Supreme Court, which ruled in favor of the newspapers. UNC then appealed to the U.S. Supreme Court, which declined to hear the case.
Public access to these disciplinary records is now the law of the land in North Carolina, and universities across the state are finally starting to release them. Still, schools in other states, including LSU, continue to assert that FERPA provides them absolute discretion.
2: Privacy interests
In addition to discretion, LSU also has argued that the state constitution affords people the right to be free from unreasonable invasion of privacy – and that disclosing their disciplinary records would amount to such an invasion. Of note is that the U.S. Congress, the North Carolina Supreme Court, and at least one other school in the state – the University of Louisiana at Lafayette – have taken the opposite stance.
I have argued with LSU’s attorneys, spokesperson and interim president about this take on a law that says nothing about students. Nor does the law suggest that alerting the public about students credibly found to have raped or sexually assaulted others is unreasonable. When pushed, LSU attorney Johanna Posada stated the university’s unwritten rule of thumb: Disclosure of these records is reasonable only after a student has been criminally convicted.
3: Getting creative
Some universities recognize their legal obligation to disclose this information in response to public records requests, but still make it difficult – if not impossible – to obtain. They do this by failing to respond to requests, delaying the release of records, charging exorbitant fees to produce them or classifying the information in way that’s not accessible.
Many states’ public records laws impose deadlines on public agencies to respond to requests. These deadlines range from three to 30 business days. It’s three in Louisiana, unless the record is not readily accessible, in which case the agency must provide an estimated date when the records will be made available.
LSU repeatedly has exceeded those deadlines and has never given me an estimated completion date. The longest I waited for LSU to fulfill a request is seven months, during which time LSU did not respond to my emails and calls. School officials responded only after USA TODAY hired an attorney to contact them.
It’s not just LSU. When I requested five years of student disciplinary records from the University of Washington, the school extended its deadline to respond nine times over a span of 18 months. It wasn’t until I talked about the delays publicly – on Twitter and on a radio show – that school officials finally provided the records.
Some schools demand that requesters reimburse them for staff time to produce the records. Such fees can put public records out of reach for members of the public and journalists. The University of Maryland claimed that providing these records would require 600 hours of staff time, at a cost of $22,000 – even as other schools had provided the same records for free.
Indiana University claimed it did not, in its regular course of business, classify student conduct cases as violent or nonviolent, and that it was not obligated to determine if a given case involved a violent offense or not. Because FERPA gives schools permission to disclose information only about violent and sexual offenses, the school said it could not therefore fulfill my request.
4. Daring you to sue
Universities have little incentive to aggressively comply with public records laws, because there are rarely severe consequences for breaking it.
In most states, the only recourse for requesters denied access to public records is to file a lawsuit against the agency withholding them. Some states, including Oregon and Kentucky, have an option to write an appeal letter to the local district attorney or state attorney general, who can issue a ruling. But even if you win such a ruling, the agency can appeal in court, or even sue you.
Few members of the public or media organizations have the financial ability to enter into a potentially lengthy court battle. Attorneys can cost hundreds of dollars per hour, and these fights can demand dozens or hundreds of hours. In most states, a judge can order the public agency to pay the requester’s court costs and attorney fees if they win, but it’s not always a guarantee. It is in Louisiana. USA TODAY has sued LSU three times and received court costs for all three cases and attorney fees in one of those cases, which is on appeal. It waived attorneys’ fees in the two cases it settled.
Still, anyone considering fighting a public records denial must feel very strongly about their chances of winning, as these lawsuits are essentially wagers of up to tens of thousands of dollars. And even if you win attorney fees, taxpayers foot the public agency’s bill.
5. Law enforcement secrecy
Police reports are a shortcut to getting information about campus sexual assaults. Unlike most publicly available disciplinary records, they contain a narrative of the incident and outline the steps that officers took to investigate them, and they are not protected by FERPA. These reports are invaluable for reporters trying to establish timelines and corroborate details of interview accounts.
Police reports are available for public inspection in many states, though not all. In California, Alabama, Missouri, Pennsylvania, Virginia, North Carolina and elsewhere, they are essentially off limits. They are generally available in Louisiana, but police agencies there have used some of the same denials and delays as universities – especially campus police, which are run by university leadership.
LSU, for instance, has taken the position that student names should be redacted from campus police reports, including suspects’ names, even though FERPA has no authority over law enforcement records. LSU continues to fight in court to keep former star running back Derrius Guice’s name blacked out from a police report filed against him by ex-student Samantha Brennan in 2016. Brennan alleged Guice took a nude photograph of her without her knowledge and shared it with at least one member of the football team.
The University of Oregon claims that all campus police reports detailing alleged sexual assaults are exempt from disclosure in their entirety under the public records law’s personal privacy exemption, which protects against unreasonable invasion. Oregon also uses victims as a shield, automatically invoking their privacy interests without even asking them if they object to their reports being released with their names redacted. The result is a makeshift, blanket policy of denying public access to even the most baseline information about incidents of campus sexual assault and the steps the university took, or didn’t take, to investigate them.
6. “Pending” investigations
Police agencies also can claim investigations are “open,” “active” or “pending,” and therefore exempt from disclosure. Judges have consistently held that this exemption is limited to investigations that are actually underway, but schools have claimed the “pending” designation on cases that have been long dormant.
USA TODAY filed two lawsuits against LSU in the fall for this reason. LSU had claimed that years-old sexual misconduct police reports filed against three football players – Guice, Grant Delpit and Zach Sheffer – remained pending, even though police hadn’t logged activity in those cases for two to four years. The school’s argument was that the cases remained open because the statute of limitations to prosecute them – six years at minimum – remained open. The court disagreed.
7. Failing to disclose
The possibilities are endless for interpretations of public records law exemptions. But at least requesters have the option to sue when a public agency invokes an exemption. What happens if a public agency claims no records responsive to your request exist even when they do?
This happened in August when I requested from LSU copies of all campus police reports involving Guice. Initially, LSU said all it had were two reports describing non-criminal incidents in which Guice was the complainant.
That same month, USA TODAY published a story detailing two former students’ rape allegations against Guice, neither of which was reported to police. After the story came out, Brennan emailed me and my co-reporter, Nancy Armour, saying that she had, in fact, filed a police report against Guice with LSU police in 2016 over the nude photograph incident.
If Brennan hadn’t emailed us, we may never have discovered her report, and how Senior Associate Athletic Director Miriam Segar steered her to the police department to file it, instead of to the Title IX office, as federal law and school policies required. It wasn’t until Brennan and I both requested a copy of her report that LSU acknowledged its existence.
Even then, LSU at first provided us with only a one-page, four-sentence “initial incident report” that omitted key details of her account, including Guice’s name. When pushed, LSU admitted that the police report actually contained nine more pages, but that those pages were exempt because the investigation remained “active” and prosecution was “reasonably anticipated.” That claim was called into question when the East Baton Rouge District Attorney’s Office confirmed to USA TODAY that LSU police had never shared the case with prosecutors to begin with.
8. Offender isn’t a student
University employees accused of sexual misconduct often receive even greater privacy protections under public records laws than students. Personnel records are confidential in many states, unless the records are determined to be of significant public interest.
Last month, San Jose State University’s former longtime sports medicine director was found responsible in a series of state Title IX investigations for inappropriately touching at least six swimmers under the guise of medical treatment over a decade ago. Seventeen swimmers had reported Scott Shaw to their coach in late 2009, and San Jose State conducted an internal investigation at the time that cleared him of wrongdoing. He stayed in his job for another 10 years. Two current athletes have since reported him for similar inappropriate touching occurring as recently as January 2020.
When USA TODAY started investigating Shaw a year ago, we requested a copy of San Jose State’s 2010 investigation report. The school refused to give it to us, saying that it would be an invasion of his privacy because he had been cleared of wrongdoing.
Therein lies the problem. If an investigation that cleared someone of wrongdoing was inadequate to begin with, the public has a right to know about it. But the university can use the findings as the reason to keep it secret.
Even when employees are disciplined, universities sometimes fight the release of the records. Such was the case when USA TODAY in December requested a copy of the 2013 investigation report in which LSU’s former head football coach Les Miles, its highest-paid and most influential employee, was accused of making sexual advances toward student workers.
LSU refused to release the report, citing Miles’ privacy interests and the attorney-client privilege, because LSU had contracted an outside law firm to do the investigation. USA TODAY sued for the report, and Miles joined the lawsuit to fight the records’ release. He later dropped his claim.
Released for the first time Thursday, the report revealed that LSU had, in fact, disciplined Miles, contrary to his claims it “exonerated” him. It also revealed that LSU used outside counsel to minimize the chance of having to release the document in response to a public records request.
It was “intentionally stored offsite at LSU’s outside counsel’s office and with Miles’ attorneys,” according to the Husch Blackwell report. LSU attorneys promised to fight the report’s release in court if someone ever requested it.
Eight years later, they did just that.