WSJ Reporter Aids Missoulian in Requesting University of Montana’s Information

By Clem Work

There were so many emails that the closest estimate is “thousands.”

When the president of the University of Montana, the vice president for external relations, the legal counsel, the athletic director,the football coach, the county attorney, the police chief of Missoula, and a couple of lawyers are discussing serious allegations of sexual assaults on UM students, some by football players — you’re going to rack up a lot of emails.

And that’s what Missoulian reporter Gwen Florio and editor Sherry Devlin had in mind in the spring of 2012 — to find out how UM officials and those they were communicating with were dealing with the problem and to confirm information that had been denied.

“We pushed for more,” Florio said, “but that big wall went right up.” Moreover, UM counsel David Aronofsky suggested that such a request would cost “ten to twenty thousand dollars,” Florio said.

She had an ally in Wall Street Journal reporter Stu Woo. He had come to town for three days in March “to get a feel for what Missoulians thought of the issue.” UM Vice President Jim Foley “wouldn’t meet with me in person,” Woo said.

Stonewalling does not sit well with reporters. Woo suggested a joint-records request. The Journal would foot the bill up to a certain amount, far less than Aronofsky’s sum (Woo wouldn’t be specific); the Missoulian would be the local partner.

The request landed on Aronofsky’s desk on April 3. It asked for copies of all emails containing certain terms such as “sexual assault” that had been sent from or to the five UM officials, city officials, and private attorneys.

The State Supreme Court has never ruled on whether emails are public records under the state Constitution’s guarantee of the public’s right to know, noted media attorney Mike Meloy. But the constitution and statutes are clear enough: There is “no basis for excluding emails by officials using the public email system,” Meloy said.

UM set about retrieving the emails. Information Technology security officer Adrian Irish said he and an assistant logged 50 hours between April 16 and May 16 pulling emails from servers and desktop computers. There were “thousands for each individual named in the request,” Irish recalled, and “a huge number of false positives” (hits that contain one or more terms but aren’t relevant).

Aronofsky and an aide started going through his own messages and Foley’s. They crossed out passages they thought were protected by attorney-client privilege, student information, and non-relevant material. The remainder went on a disk and was delivered to the Missoulian on May 17 — 44 days after their request.

Florio couldn’t open the disk. Technicians pried it open. On May 19, Florio reported that former Dean of Students Charles Couture had implicated four football players who had allegedly “gang-raped” a female student. A May 20 article, “UM Vice President Sought to Punish Alleged Rape Victim,” detailed how Foley had emailed Couture, wondering whether the victim, who had complained publicly about how UM had handled her rape allegations, could be punished under the Student Conduct Code.

These stories, including plenty more from the emails, led to a media scrum. Other news outlets were requesting the emails. “They were FOIA-ing our FOIA,” recalls Devlin, using a term that refers to the federal Freedom of Information Act. At least one news outlet questioned Aronofsky reviewing his own emails without oversight, said Kevin McRae, associate commissioner of higher education in Helena.

With three sets of emails unprocessed, the press pounding on his door, and Aronofsky leaving on a trip, McRae decided to “kick it in gear.” All the emails were printed out in Helena and PDFs made of each. Montana University System chief legal counsel Cathy Swift, MSU counsel Leslie Taylor, UM’s associate counsel Claudia Denker, and two other attorneys started “scrubbing” (McRae’s term) material they considered private. The job took each lawyer at least 40 hours, McRae said.

When he proposed releasing the emails to all news media at the same time, “we kinda jumped up and down, saying, ‘Excuse me, we requested it first!’” Florio recalled. McRae gave the Missoulian and the Journal a day’s head start.
The charge: zero. “IT was not happy about it,” said McRae — and Irish confirmed. His department had to swallow 50 hours at $25 an hour. But McRae said “it’s in our self-interest … We are a system of public colleges and universities. We work hard to seek funds and generate public support, and we can’t earn that if we don’t provide access and insight.”

The news media received a password to a Board of Regents website, giving them access to the vetted emails (they are still on the site, no password needed).

Woo at the Journal found them riddled with so many cross-outs that the information was not worth writing about. Florio, Devlin, and reporter Betsy Cohen, publishing for readers more interested in the nitty-gritty, found plenty: emails from and to boosters demanding to know why football coach Robin Pflugrad and athletic director Jim O’Day had been fired; why O’Day seemed to treat UM football players’ racially tinged tweets lightly while cracking down on others’ as head of an NCAA committee; that a report had been altered to excise football players’ names; that Mayor John Engen, under pressure from Foley, had disciplined a police officer who had used a private email account to express dismay to UM administrators about the “spiraling PR mess.”

The emails confirmed information that administrators had refused comment on, said Devlin, and “resulted in a lot more in-depth look at the overall situation” by allowing the paper to report what was “occurring outside the public realm, between administrators  … The overriding theme … was a concern with managing and restricting the flow of information.”

Florio and others credit UM President Royce Engstrom with pushing for more transparency, along with Peggy Kuhr, the new vice-president for integrated communications. Which is good, because media requests for emails are rising– “more this year than in the past six years,” Denker said. “It’s becoming a huge burden,” said UM’s new legal counsel, Lucy France. UM’s IT department now has a software package for such requests, Irish said. At least part of the surge, however, simply reflects the fact that more business is done via emails, Meloy noted. “If there’s some dispute that’s going on, the media will want to know.”