NEWS MEDIA UPDATE · INDIANA · Freedom of Information · Sep. 14, 2006
Judge denies access to university’s internal inquiry
Sep. 14, 2006 · Records compiled by two Indiana University trustees investigating former basketball coach Bobby Knight are not subject to the state’s public records act because they are considered part of the trustees’ “attorney work product,” an Indiana judge has ruled.
Monroe Circuit Court Special Judge Jane Spencer Craney’s Aug. 25 decision represents a defeat for The Indianapolis Star, which first sued five years ago to gain access to witness interviews and other documents compiled by university trustees John Walda and Fred Eichhorn and by the private investigator and videotape expert they hired.
In 2000, Eichhorn and Walda investigated complaints by player Neil Reed, who told reporters Knight choked him at basketball practice and displayed soiled toilet paper in the team locker room for what Knight considered to be a motivational tactic. In September 2000, Indiana University President Myles Brand fired Knight for a continuing pattern of “defiant and hostile” behavior, according to the Star.
The Star first requested records relating to Knight, including the so-called “Reed materials,” six years ago. When the newspaper filed suit against the university in 2001 for refusing to turn over the records, Craney ruled in favor of the university.
The newspaper appealed that decision, and the Indiana Court of Appeals sent the issue back to the lower court for Craney to decide whether the trustees — who are also attorneys — were acting as trustees or as private counsel.
Dennis Ryerson, editor of the Star, said in an e-mail that any narrowing of access to such documents would “limit our ability to report fully on government actions.”
University officials claimed in court that they did not have to turn over the records because they were covered by an exemption in the public records act that excludes attorneys’ work product from public disclosure as part of the attorney-client privilege.
The Star argued that there was no attorney-client relationship between the trustees and the university because there was no letter of engagement, an official document verifying the trustees had entered into an attorney-client relationship. They also pointed to the fact that Indiana University did not pay fees to Walda and Eichhorn.
The court dismissed those arguments, noting Walda seldom used letters of engagement and ruled both attorneys were providing pro bono services to the university. Walda also differentiated his role as trustee from that as an attorney, testifying that the role of a trustee does not include administrative responsibilities such as conducting an investigation.
Even absent an explicit agreement to provide legal services to Indiana University, the court found that an attorney-client relationship could be implied by the facts. Especially compelling to Craney was the fact that the president, Brand, had sought legal advice concerning the investigation and had received counsel from both Walda and Eichhorn, including a report describing the possible legal action that could arise.
The Star argued the work product privilege is targeted at the attorneys’ mental impressions, their legal theories or conclusions. As a result, the Star argued, the information compiled by the trustees — mainly witness interviews and notes — were not exempt under the privilege.
The court disagreed, stating that “work product” could include notes of witness interviews and statements as long as an attorney-client relationship exists.
The Star contends that at the very least, redacted records of the investigation should be made public. The Star is allowed an appeal of Craney’s decision.
“We are now assessing our future steps,” Ryerson said.
(The Indianapolis Star v. The Trustees of Indiana University; Media Counsel: Kevin M. Betz, Betz & Associates, Indianapolis) — HS