Thursday, September 1, 2016

Louisville violated Open Records Act denying records used in basketball ban decision

The University of Louisville violated the Open Records Act when it failed to provide records related to its decision to ban the men’s basketball team from post-season play.

On Sept. 1, Attorney General Andy Beshear issued an opinion, In re: Peter Hasselbacher, M.D./University of Louisville, 16-ORD-197, which has the force of law unless appealed to circuit court. Unless it sues, Louisville must turn over records university President James Ramsey used when he imposed the ban and seek records related to the Ramsey's action that are in the possession of other administrators

Dr. Hasselbacher requested any documents that Ramsey reviewed when banning the men's basketball team participation in post-season tournaments. Hasselbacher also requested records used by other administrators to endorse that decision by Ramsey, who has since resigned.

The university is under an NCAA investigation after reports from a self-described madame that she had provided escorts and dancers for basketball players and recruits for several years. Rick Pitino's team sat out the Atlantic Coast Conference and NCAA tournament.  The Cardinals finished the 2015-16 season fourth in the ACC with a 12-6 record and 23-8 overall.
The university denied Hasselbacher’s request, declaring records did not exist in a one-line response. Hasselbacher appealed to the Attorney General Office, challenging the university’s compliance with both the Open Records and Open Meetings Act.

He argued that the decision could not have been made without records.

On March 11, Beshear’s office requested additional documents to help substantiate the university's claim there would no records, including the process of searching for the requested records in Ramsey’s custody.

Beshear asked, per 95-ORD-96, that the university document its efforts.

In its response, the university said that Ramsey confirmed he had no documents in hand when he decided to impose the ban. It also stated that Chuck Smrt, an NCAA investigator hired by the university, did not provide Ramsey with any documents.

Louisville argued that the request from Hasselbacher was limited to documents in Ramsey’s possession on the date of the decision. Further the university argued that records not in the possession of Ramsey or Smrt were not covered by the request.

General Beshear stated that the request was clear in that it covered records used by Ramsey in making his decision. He also found that it dealt with records used by other parties like administrators and program directors of the athletics department, endorsing or supporting Ramsey’s ban.

The Attorney General's opinion went on to say that the phrase “such as” did not limit the request to just those individuals. The final sentence of Hasselbacher’s request was for records used to form the basis of the decision to ban the men’s basketball team.

Louisville acknowledged that records related to the allegations around the men’s basketball team did exist, and that the NCAA investigator, Smrt, has possession of such records. Because Smrt was hired by the university to investigate, he was an agent of the university. Louisville also stated that Smrt was present when Ramsey decided on the ban.

The records in Smrt’s possession, created and maintained for the investigation, were used, in some part, to form the basis for the ban, Beshear found, and therefore are public records. Beshear ruled the university cannot avoid the Open Records Act by keeping all records in possession of the investigator.

The Attorney General's Office had requested Louisville send the records to Beshear's office for a private and confidential viewing, but the university refused.

Thus Louisville violated the Open Records Act by not providing the records in Smrt’s possession that were non-exempt to Hasselbacher after his initial request. Beshear pointed out that the university did not demonstrate it had asked other school officials about records in their custody that fell within the request.

Beshear said the university should conduct a better search to locate records within the boundaries of Hasselbacher’s request, and until then, Louisville will not discharge its duty under the Open Records Act.

As with every opinion from the Attorney General, either party may appeal by suing in circuit court.

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