Confidentiality question

[paco]

Talking heads are saying that neither Ole Miss nor the NCAA can release specific details.

Am I correct that Ole Miss is not required to keep the contents of the letter secret? I know that the NCAA never leaks information regarding an investigation. I am almost certain that the institution can release the document at any time.

[Obiwandawgbroni]

Ole miss can release the statement. The CL has requested the information to be released. Either they're waiting until after signing day, or they haven't received it yet. I'm guessing the former.

[Bucky Dog]

Yeah I was just reading the L article this mornin on it and they said they first made a formal request to OM last November on them turning over any letter or otherwise involved with allegations made by NCAA, and were told by OM that there was no such letter. CL also made a formal request earlier this month for them to turn over all communication between OM and the compliance offices with SEC and NCAA and were told they could not due to privacy laws.
Now the CL is suing OM saying they violated the FOIA and are demanding they release any and all communication and the letter they have received! Grab the popcorn.

[NYDawg]

The NCAA cannot interfere with any FOIA request, so OM could release the NoA. What they cannot do is comment on - i.e., spin - the NoA publicly. So, they keep it hidden as long as possible and ensure that their characterization of the NoA leaks out to friendly sources...basically the same tactic Hillary tried with her emails.

[ckDOG]

They probably have their legal correspondence with the NCAA directed to attorney offices out of state which probably loopholes them out of having to release under FOIA. Just speculation...

[Obiwandawgbroni]

They probably have their legal correspondence with the NCAA directed to attorney offices out of state which probably loopholes them out of having to release under FOIA. Just speculation...

According to Bjork's statement, he mentioned the letter was received by outside counsel. So you're exactly right. They loopholed the FOIA by not receiving the letter.

[WinningIsRelentless]

Yeah I was just reading the L article this mornin on it and they said they first made a formal request to OM last November on them turning over any letter or otherwise involved with allegations made by NCAA, and were told by OM that there was no such letter. CL also made a formal request earlier this month for them to turn over all communication between OM and the compliance offices with SEC and NCAA and were told they could not due to privacy laws.
Now the CL is suing OM saying they violated the FOIA and are demanding they release any and all communication and the letter they have received! Grab the popcorn.

Because it involves academic fraud. You can't release athletes personal information like that.

[NYDawg]

According to Bjork's statement, he mentioned the letter was received by outside counsel. So you're exactly right. They loopholed the FOIA by not receiving the letter.

http://e.lvme.me/pzv5j7l.jpg

You can't circumvent any FOIA obligations by simply having outside counsel - the organization's agent - receive it. That's not even a colorable defense, though I'd love to see some OM lawyer try to take that position and get his/her clock cleaned. As for any information that IS exempt from disclosure, that's what redaction (identifying information only) is for.

[Really Clark?]

Because it involves academic fraud. You can't release athletes personal information like that.

You just redact that stuff just like the ULL response. It still gives you 90% of the meat of the NOA. That is how is always done and when they do release, that is what they will do as well. The student athletes names, scores, etc will be what needs to be redacted. That is all the confidentiality will cover.

[Martianlander]

Yeah I was just reading the L article this mornin on it and they said they first made a formal request to OM last November on them turning over any letter or otherwise involved with allegations made by NCAA, and were told by OM that there was no such letter. CL also made a formal request earlier this month for them to turn over all communication between OM and the compliance offices with SEC and NCAA and were told they could not due to privacy laws.
Now the CL is suing OM saying they violated the FOIA and are demanding they release any and all communication and the letter they have received! Grab the popcorn.

Absolutely amazed at this. The way the CL is in unm's pocket, if they really are pursuing this that hard they might get a modicum of respect from MSU fans.

[lawdawg]

http://e.lvme.me/pzv5j7l.jpg

You can't circumvent any FOIA obligations by simply having outside counsel - the organization's agent - receive it. That's not even a colorable defense, though I'd love to see some OM lawyer try to take that position and get his/her clock cleaned. As for any information that IS exempt from disclosure, that's what redaction (identifying information only) is for.



Doesn't take a bear lawyer to know that.

[NYDawg]

Doesn't take a bear lawyer to know that.

Which documents do not fall under 25-61-3(b)?

[lawdawg]

Which documents do not fall under 25-61-3(b)?

That's not FOIA.

I also think you're wrong on the "agent" analysis. Do you have an ethics opinion supporting that? If UM doesn't have the docs (and have never had them), then they can't be forced to produce them under the Public Records Act.

Also the statute you cite explicitly says " Within the meaning of this chapter, the term "entity" shall not be construed to include individuals employed by a public body". So when it later says that entities may be required to produce records, that obviously wouldn't include individuals, such as attorneys, hired by the entity.

Looks to me like a pretty good argument. Just sayin. Now attorney-client privilege clearly would NOT apply to any docs from or sent to the NCAA. .

[NYDawg]

If you're actually going to go there, then fine.

"FOIA," in the common vernacular, is used frequently to refer to public records acts at the state and federal level even when they are not technically called a "Freedom of Information Act." Thus, the MS AG's office refers to the form they provide for obtaining information under the Public Records Act as a "Freedom of Information Records Request Form" even though it should just be a "Public Records Request Form."

As shocking as it may be, I have not hired counsel for an "ethics opinion" for a message board post. I have advised public and private clients on these issues in the past (albeit not in Mississippi), however, so I hardly think it would be necessary even if this was not a mere message board discussion.

As for your glowing assessment of the idea that an NoA could be shielded by having it sent to outside counsel...The language you reference, "'entity' shall not be construed to include individuals employed by a public body," merely clarifies that a "public body" refers only to entities of the state and not individual employees or elected/appointed officials in their individual capacities. The body itself, however, has a clear and unequivocal duty to provide access to public records, subject to the statutory exceptions, under 25-61-2. And as agents of the public body in question, the entity has the power and obligation to direct outside counsel (again, subject to any exceptions) to make any materials that fall within the exceptionally broad "public records" language available for public inspection. I don't recall that this has ever been litigated in Mississippi, but Arkansas (which has a similarly broad statute) has answered this specific question with respect to both outside counsel and outside accountants in the Fox, Edmark and Swaney cases. I can dig out the full cites if you really insist on taking this further.

As for the advice to Mullen, sure, there are benefits even in a FOIA (I'm using this term subject to the qualification above) scenario, but that runs only to shielding work product and discussions subject to attorney-client privilege. Given the nature of an NoA, neither of those would apply.

[Westdawg]

If you're actually going to go there, then fine.

"FOIA," in the common vernacular, is used frequently to refer to public records acts at the state and federal level even when they are not technically called a "Freedom of Information Act." Thus, the MS AG's office refers to the form they provide for obtaining information under the Public Records Act as a "Freedom of Information Records Request Form" even though it should just be a "Public Records Request Form."

As shocking as it may be, I have not hired counsel for an "ethics opinion" for a message board post. I have advised public and private clients on these issues in the past (albeit not in Mississippi), however, so I hardly think it would be necessary even if this was not a mere message board discussion.

As for your glowing assessment of the idea that an NoA could be shielded by having it sent to outside counsel...The language you reference, "'entity' shall not be construed to include individuals employed by a public body," merely clarifies that a "public body" refers only to entities of the state and not individual employees or elected/appointed officials in their individual capacities. The body itself, however, has a clear and unequivocal duty to provide access to public records, subject to the statutory exceptions, under 25-61-2. And as agents of the public body in question, the entity has the power and obligation to direct outside counsel (again, subject to any exceptions) to make any materials that fall within the exceptionally broad "public records" language available for public inspection. I don't recall that this has ever been litigated in Mississippi, but Arkansas (which has a similarly broad statute) has answered this specific question with respect to both outside counsel and outside accountants in the Fox, Edmark and Swaney cases. I can dig out the full cites if you really insist on taking this further.

As for the advice to Mullen, sure, there are benefits even in a FOIA (I'm using this term subject to the qualification above) scenario, but that runs only to shielding work product and discussions subject to attorney-client privilege. Given the nature of an NoA, neither of those would apply.

And, that, my fellow dawgs, is how you DROP THE MIC - BOOM !!

[lawdawg]

If you're actually going to go there, then fine.

"FOIA," in the common vernacular, is used frequently to refer to public records acts at the state and federal level even when they are not technically called a "Freedom of Information Act." Thus, the MS AG's office refers to the form they provide for obtaining information under the Public Records Act as a "Freedom of Information Records Request Form" even though it should just be a "Public Records Request Form."

As shocking as it may be, I have not hired counsel for an "ethics opinion" for a message board post. I have advised public and private clients on these issues in the past (albeit not in Mississippi), however, so I hardly think it would be necessary even if this was not a mere message board discussion.

As for your glowing assessment of the idea that an NoA could be shielded by having it sent to outside counsel...The language you reference, "'entity' shall not be construed to include individuals employed by a public body," merely clarifies that a "public body" refers only to entities of the state and not individual employees or elected/appointed officials in their individual capacities. The body itself, however, has a clear and unequivocal duty to provide access to public records, subject to the statutory exceptions, under 25-61-2. And as agents of the public body in question, the entity has the power and obligation to direct outside counsel (again, subject to any exceptions) to make any materials that fall within the exceptionally broad "public records" language available for public inspection. I don't recall that this has ever been litigated in Mississippi, but Arkansas (which has a similarly broad statute) has answered this specific question with respect to both outside counsel and outside accountants in the Fox, Edmark and Swaney cases. I can dig out the full cites if you really insist on taking this further.

As for the advice to Mullen, sure, there are benefits even in a FOIA (I'm using this term subject to the qualification above) scenario, but that runs only to shielding work product and discussions subject to attorney-client privilege. Given the nature of an NoA, neither of those would apply.

If you are going to try to be the expert on a subject, you should at least call it what it is. And it is not FOIA. It's a common mistake, but a mistake nonetheless. And one typically made by those who don't know what they're talking about.

Obviously, I'm not asking if you hired counsel to write an opinion. That's ridiculous. But, you see, under Mississippi's Public Records Act, disputes are decided by the Ethics Commission. Their decisions are called "ethics opinions". You can even search them for free online. Again, if you want to be the expert, you should know that. Not trying to be snarky - just asking if you had a precedential basis for your opinion. Thanks for clarifying that you do not. I haven't seen an opinion regarding agents of public entities.

There's no real argument here. I just hate it when people say "they're using their attorneys to hide docs from the NCAA under attorney-client privilege", because that's wholly incorrect. I also hate it when people say "thats a Mississippi government body, they can't avoid FOIA!"

[BiscuitEater]

Because it involves academic fraud. You can't release athletes personal information like that.

Totally & 100% wrong. Just look at the ULL letter. It contained allegations of academic fraud and the players names were redacted.

[AlmostPositive]

I'm enjoying the first legal throwdown I've encountered at ED. I hope there are more in the weeks to come on the same basic topic.

From a layman's point of view, don't you suppose the CL's attorney would avoid filing a frivolous FOIA-related lawsuit? You would have to assume they have some experience with this sort of thing...

Edited to add: I'm guessing Lawdawg's legal training was acquired in Lafayette County in the not too distant past..

[RougeDawg]

Who's got the measuring tape?? This one may get real good.

[Rayburn8]

Absolutely amazed at this. The way the CL is in unm's pocket, if they really are pursuing this that hard they might get a modicum of respect from MSU fans.

They get a lot of shit on our boards, but between this and the fact that Ole Miss fans feel the exact same way about the CL as we do. The CL is pretty down the middle. It's always a good thing when both schools hate you. Means you're doing your job right.

[dawgoneyall]

Rare....I go with the Yankee on this.

Unless the NY means North Yazoo?

[lawdawg]

I'm enjoying the first legal throwdown I've encountered at ED. I hope there are more in the weeks to come on the same basic topic.

From a layman's point of view, don't you suppose the CL's attorney would avoid filing a frivolous FOIA-related lawsuit? You would have to assume they have some experience with this sort of thing...

Edited to add: I'm guessing Lawdawg's legal training was acquired in Lafayette County in the not too distant past..

Thankfully, I didn't have to settle for TLSUN... And let me also say that I have more than a fair amount of experience with laws relating to public entities.

I guarantee you that if the CL attorney has filed a dispute, they didn't use the term "FOIA". in any event, the docs (or at least the important NOA) will surely be released to the public (with redactions, of course) before the dispute is resolved if fought all the way through.

[NYDawg]

If you are going to try to be the expert on a subject, you should at least call it what it is. And it is not FOIA. It's a common mistake, but a mistake nonetheless. And one typically made by those who don't know what they're talking about.

Obviously, I'm not asking if you hired counsel to write an opinion. That's ridiculous. But, you see, under Mississippi's Public Records Act, disputes are decided by the Ethics Commission. Their decisions are called "ethics opinions". You can even search them for free online. Again, if you want to be the expert, you should know that. Not trying to be snarky - just asking if you had a precedential basis for your opinion. Thanks for clarifying that you do not. I haven't seen an opinion regarding agents of public entities.

There's no real argument here. I just hate it when people say "they're using their attorneys to hide docs from the NCAA under attorney-client privilege", because that's wholly incorrect. I also hate it when people say "thats a Mississippi government body, they can't avoid FOIA!"


I absolutely agree that careful use of the proper references is important in a legal brief. I am not filing a legal brief, writing a legal opinion or otherwise having a discussion in my professional capacity. I'm writing on a message board with a snarling dog logo and an advertisement for an ESPN "The Zone" show. I get that it's your pet peeve. I have several as well, but making a huge case over them would be bad form.

I expressed an opinion on this message board. For whatever reason, you did not like that opinion and chose to question my understanding of how all of this works. I believe I have clarified all of that sufficiently, including that I have not dealt with this issue in Mississippi. I have never suggested that I am an "expert" on MS public records practice notwithstanding my experience with related issues elsewhere. How that makes my opinion invalid is beyond me. All of this lecturing about process is, at best, a distraction from the fact that you have yet to defend your interpretation of the statute.

So where, exactly, do you think my reading of 25-61-3(a) or examination of your analysis are incorrect? All I see is more snarky comments about Ethics Opinions (in my practice, we were careful to distinguish ordinary "ethics opinions" and "[Agency] Opinions" to avoid confusion, but I appreciate that this is not how it's done everywhere) and how I haven't produced any, as if that's somehow conclusive. I doubt there are ethics opinions that say you can't take a dump on a public records request and send it back as your answer, but you don't need an ethics opinion to see that would be a violation of the statute. And no, based on the statutory language and the manner in which similar language has been interpreted elsewhere, I do not see the argument re: outside counsel as colorable. I suspect that's the reason you haven't seen an Ethics Opinion on the issue either...to use your words, "[t]here's no real argument here." If you happen across one that suggests otherwise, I'd love to see it.

As for OM, I have no idea if they're relying on the "outside counsel" angle at all. I cannot imagine that they are going to try to claim the NoA is subject to work product or attorney-client privilege for the reasons I noted earlier (TL;DR - it strikes me as a silly position). Nor am I merely saying that OM is a government body that "can't avoid FOIA." To the contrary, I acknowledged that there are several carve-outs for certain types of entities, documents, and information within documents. To this point, however, I have yet to see any colorable argument that the NoA falls within any of these carve-outs.

[NYDawg]

Rare....I go with the Yankee on this.

Unless the NY means North Yazoo?

I live and work in New York, but I doubt anyone here would consider me a yankee...