For the entirety of the football scandal, the University has defended its stingy response to public record requests with a liberal interpretation of FERPA. Last week, in a deposition conducted as part of an ongoing lawsuit for public records, no interpretation was necessary: It is not unlawful to not create a public document. But the legality of actively avoiding the creation of public records is far outweighed by what that practice does to erode the spirit of the N.C. public records law. It’s time for the University to place a premium on transparency, not avoid it whenever possible.
In a deposition released to the public last week, associate athletic director for compliance Amy Herman gives an account of how the University became aware of potential NCAA investigations and responded to them. She tells Amanda Martin, an attorney representing The Daily Tar Heel and a coalition of other media outlets suing the University, that her communication with athletic director Dick Baddour and Chancellor Holden Thorp was conducted almost exclusively face-to-face or over the phone.
This line of questioning eventually led to Herman being asked whether she had “ever been advised to avoid creating documents,” to which she responded, “Yes.”
An objection prevented Herman from revealing who gave this instruction, but the recommendation seems to have been applied to the University’s handling of the NCAA investigation.
No written record was kept of players’ eligibility statuses.
Herman, for her part, did not take notes during interviews. Those interviews were taped by the NCAA and the University’s outside attorney, but not by the University itself.
This lack of documentation was praised by N.C. Department of Justice lawyer Melissa Trippe, who was representing Herman. “I mean, some would even say that that’s actually good advice, to not create public documents,” Trippe said, according to the deposition. “There’s no requirement that public documents be created if you could pick up a phone and talk to somebody.”
Legal though it may be, this avoidance should not be acceptable at UNC or any other institution. Trippe’s “actually” suggests as much. And, as a state attorney, her condoning of this practice indicates that UNC might not be alone in using phone calls or in-person conversations to effectively cover up affairs that could reflect poorly upon UNC. In a state that is supposed to value openness, it’s unacceptable for any institution at any level to actively evade the public eye as a matter of policy.
The University’s circumvention of public records law only becomes more disturbing with regard to its partner in the investigation: the NCAA, an organization with a reputation for secrecy.
