Saturday, January 05, 2008

UI, Sexual Assaults and Secrecy

January 5, 2008, 11:00 a.m.; January 6, 2008, 4:00 p.m.; January 7, 7:00 p.m./January 8, 2008, 7:00 a.m., 4:00 p.m./January 9, 2008, 4:45 p.m.

[Jan. 6] Update: Tom Witosky, "Iowa Football: Attorney Orders Secrecy in U of I Assault Case," Des Moines Register, January 6, 2008.

[Jan. 7/8] Update -- this is big: Brian Morelli, "Lyness: UI Responsible for Open Records Denials," Iowa City Press-Citizen (online), January 7, 2008, 5:34 p.m.; Brian Morelli, "Lyness: UI responsible for denials; Says she did not advise officials to withhold records," Iowa City Press-Citizen, January 8, 2008, p. A1 -- and see State29, "The Next Scandal," January 7, 2008.

And this is bigger: "Ferentz to Emphasize Off-the-Field Conduct," Iowa City Press-Citizen (online), January 8, 2008, 1:17 p.m., especially the video of the interview on which the story is based, Andrea Quann, "Ferentz Talks About Player Conduct, Discipline," Iowa City Press-Citizen Video, January 8, 2008 (he reveals there are lots of other incidents that are not known outside of Athletic Department; he usually knows of incident almost immediately, and tells Barta; his sense of proper procedure involves keeping it within football program; makes no mention of need to do better job of recruiting -- watch the video);

[Jan. 9] and see Andy Hamilton, "Ferentz 'not proud' of rocky '07; Iowa coach disappointed by on field, off field problems," Iowa City Press-Citizen, January 9, 2007, p. B1.

Public Records and Secrecy in the Academy

[Jan. 5] The Iowa City Press-Citizen reports this morning that it has brought legal action against the University of Iowa under the Iowa public records law. Brian Morelli, "Press-Citizen Sues UI in Assault Case," Iowa City Press-Citizen, January 5, 2008, p. A1 [there are now 27 comments from readers associated with this story; Jan. 6, 4:30 p.m.].

Off hand, it looks like the UI is not yet practicing the sage advice that, "When you find yourself in a hole the first thing to do is to stop digging." Having rejected the paper's repeated polite requests for public records, it now finds itself being sued once again for what at least looks like yet another example of stonewalling and secrecy.

That's not to say there may not be some arguments that can be made on the University's behalf. It's only to say that if a persuasive case can be made it has not yet been made public. Perhaps getting a court to resolve the issues will turn out to be the best resolution of the conflict. But it's not immediately obvious why it had to come to this.

There have been allegations that a sexual assault occurred on the University of Iowa campus last October 14, 2007 -- now going on some three months ago. (A chronology of what's happened since has been created by the Press-Citizen and is reproduced at the end of this blog entry.)

These events have created two stories.

(1) What occurred? Who was involved? These, and related questions, could involve matters of personal privacy and possible compromise of a criminal investigation and what could potentially become a criminal trial (thus raising some of the so-called "free press-fair trial" issues). Many individuals -- lawyers and lay persons alike -- would agree that there may be good reasons for maintaining secrecy regarding much of this information, at least until the Johnson County Attorney has come to a decision to, or not to, begin criminal proceedings.

(2) But there is a second story -- to which Erin Jordan has added a third. The second story involves information, not about students, but about UI administrators. Not what students told them, but what the officials told each other (with students' names or other matters of personal privacy redacted): which UI officials were involved, and when, and which other officials they communicated with, and what was communicated (that does not need to be redacted). These facts and documents become relevant in evaluating whether the University followed its own procedures.

I wrote about this "two story" distinction a couple of months ago, and will simply incorporate that blog entry by reference and link rather than repeat its analysis here.
Nicholas Johnson, "The Greatest 'Story Two' Never Told" in "Not Getting Answers," November 21, 2007. And see, Nicholas Johnson, "The Greatest 'Story Two' Never Told/Maybe It's Only Human" in "To Err is Human, To Keep it Secret Even More So," December 14, 2007.

Those who've commented on this morning's story on the Press-Citizen's site -- both this morning and the 10 who put up comments when the story was uploaded there yesterday -- often fail to note this rather fundamental distinction, savaging the paper for going after story one notwithstanding the fact that it is (almost exclusively) only going after story two.

(3) A third story, brought to light by the Des Moines Register's Erin Jordan, involves the extent to which the UI standards may violate federal law. Erin Jordan, "At U of I, Review Shows Little Push to Report Assaults," Des Moines Register, November 26, 2007.

The law in question is the "Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act," 20 U.S.C. Sec. 1092 (f), "Disclosure of campus security policy and campus crime statistics."

The supporting federal regulations provide, among other things, that the UI's policies must include:

(b) Annual security report.

. . .

(4) A statement of current policies concerning campus law
enforcement that--

. . .

(ii) Encourages accurate and prompt reporting of all crimes to the campus police and the appropriate police agencies; . . ..
34 C.F.R. Sec. 668.46 (b)(4)(ii)(2007). This is the legal requirement, followed by most Big 10 universities, that it is suggested is not complied with by the University of Iowa -- and was not followed in this case.

The Press-Citizen, unlike the UI, has kindly provided the full text of its relevant documents as links from Brian Morelli's story this morning:

Text of the Press-Citizen's lawsuit against the University of Iowa (PDF format)

Letter from Press-Citizen attorney Paul Burns to UI General Counsel Marc Mills from Dec. 11 (PDF format)

Letter from Mills to Burns from Dec. 27 (PDF format)
I've done no legal research on this one (aside from providing the links to the relevant law, above), but I must say I think Paul Burns has done an impressive job (in the documents linked above) on behalf of the Press-Citizen.

On the other hand, while I have great respect for Marc Mills and his legal ability, it seems to me his response is a little sketchy:

[B]ecause of the significantly different facts and circumstances involved in this matter - student privacy concerns, the integrity of ongoing University and criminal investigations, and the possibility of criminal charges being filed - I am unwilling to do that [i.e., prepare the kind of "document log" identifying the documents that are not being made available, as was done with a request last March] at this time.

That is not to say that the University won't provide more information in the future. In fact, once a decision is made regarding possible criminal charges, it is my hope that the University will be able to share more information regarding the process it has used in looking into this matter. But at this point in time, I'll have to ask for your patience . . ..
(Excerpt from "Letter from Mills to Burns, December 27, 2007," linked above.) That is to say, "sketchy" because -- at least from a public relations, if not legal perspective -- the response does not indicate specifically why the content of any of the documents requested (once redacted) would create any of the general concerns listed.


The Press-Citizen's Alleged UI sexual assault timeline

•Oct. 14: Between 2 a.m. and 6 a.m. a female University of Iowa student is allegedly sexually assaulted at Hillcrest Residence Hall. Three Iowa football players are later questioned during the investigation. UI police later acknowledge they received a “rape kit” from University Hospitals on this night.

• Oct. 19: The Press-Citizen initially begins probing the university about the alleged incident. Athletics director Gary Barta would not acknowledge the alleged incident. UI police director Chuck Green said his department was not investigating any such allegation, and he was unaware of the alleged incident.

•Nov. 5: The alleged victim first contacts UI police about the alleged incident. Green said this is the first time police had any knowledge of the incident.

•Nov. 7: The alleged victim files an official police report.

• Nov. 12: The Press-Citizen e-mails Green asking again if police had any information about the alleged sexual assault. He does not respond. Iowa Code chapter 22.4.5 requires UI to disclose this information.

• Nov. 13: The Press-Citizen files an open records request seeking correspondence involving top UI officials, Barta, Associate Athletics Director Fred Mims, Football Coach Kirk Ferentz, Associate Provost Marcella David, Vice President for Student Services Philip Jones and Associate Dean of Student Thomas Baker.

• Nov. 13: The Press-Citizen presents UI with Chapter 22.4.5, and again requests reports of sexual assaults dating back to the beginning of October.

•Nov. 13: Johnson County Attorney Janet Lyness said she has no knowledge of an alleged sexual assault at UI.

• Nov. 14: The Press-Citizen attempts to contact Green about whether there was an alleged sexual assault.

• Nov. 14: UI issues a news release that for the first time acknowledges a sexual assault allegedly occurred, and it is under investigation.

•Nov. 14: UI police and the Department of Criminal Investigation investigate Hillcrest.

•Nov. 16: Iowa state Board of Regents President Michael Gartner sends UI President Sally Mason a letter that indicates regents officials would be investigating whether UI followed proper procedures in handling the incident.

• Nov. 16: District Court Judge Amanda Potterfield signs the order to seal five search warrants in the investigation for 60 days.

• The Iowa Hawkeyes football team play their final game of the season, a 28-19 lose.

•Nov. 19: Gov. Chet Culver issues a statement that raises questions about UI’s handling of the investigation.

•Nov. 20: Mason in an editorial board meeting with the Press-Citizen says UI officials have handled the situation properly and says UI has let the victim dictate how the investigation has proceeded.

•Dec. 3: Twenty days elapses, and UI has not complied with the Press-Citizen’s record request. This violates Chapter 22.8.4.d of the Iowa Open Records statute.

•Dec. 7: UI releases 18 pages of documents sought in the records request. UI withholds an unknown number of other documents, and it refuses to reveal how many more documents there are and to redact confidential information in order to unseal it. UI will not provide a reason for declining these requests.

• Jan. 4: The Press-Citizen sues UI for violating open meeting laws.

# # #

3 comments:

John Barleykorn said...

Let's be real clear here:

The Press Citizen is NOT doing this out of some sort of public interest. It wants to have a sordid story to sell more papers. I don't see the Gazette or any other newspapers or media outlets crying like the PC does. I have never seen a paper make itself the story more than the PC has over the last year.

Lets also be clear on this: The UI is correct to avoid them, because the PC cannot be trusted to give a fair and accurate reporting of the events in this case. There is an agenda. I wonder if the PC would be as willing to open its own internal memos regarding how to report on certain issues. They will counter that they are not a public institution. Well, they certainly like to cloak themselves in the "watchdog" role, so why not be open with the public on their own internal e-mails and memos?

The best thing that can happen is that the Iowa City Press Citizen is closed by its corporate masters in Virginia and reassigns Mr. Lewers and his crew to other Gannett outlets.

Anonymous said...

Has the alleged victim decided to press charges? It looks like she wanted to report the incident but nothing beyond that. If that is the case then the University's and the DA's hands are tied by rules of confidentiality.

Anonymous said...

Seems like an Iowa trend, Myself and my case have been kept quiet for 2 months now.