Higher Education

OU fights public transparency

June 7, 2023

Ray Carter

The University of Oklahoma has spent more than $1 million investigating claims of bogus financial reports and sexual harassment by David Boren, its former president who stepped down in 2018, but continues to stonewall efforts to make the findings public.

Instead, the university has spent the last two years arguing in court that the Oklahoma taxpayers who funded the investigation have no right to see the resulting documents, and OU officials have even appeared to suggest the state’s Open Records law does not apply to most records at any state-funded agency or entity.

In 2018, OU hired the Jones Day firm to give legal advice on alleged misreporting on alumni donor data to U.S. News and World Report. On Feb. 14, 2019, Nolan Clay of The Oklahoman reported that the scope of the university’s internal review was expanded to include allegations of whether Boren sexually harassed aides.

In June 2021, the online news outlet NonDoc sued OU, seeking the release of the associated Jones Day reports. That legal fight is still ongoing today.

“The public has a significant interest in knowing what the University of Oklahoma learned from the high-priced law firm it hired—twice—to look into allegations that it had misreported donations and that its longtime president had engaged in serial sexual misconduct,” said William “Tres” W. Savage III, editor in chief of NonDoc. “As a graduate of OU’s journalism college, I am disappointed the university has so strongly resisted calls for transparency while their contracted attorneys rack up lucrative legal fees on the public dime by standing up in court and obstructing the public from hearing what took place.”

In their July 26, 2021, response to NonDoc’s petition, the Board of Regents of the University of Oklahoma complained that the request for the Jones Days reports was based, in part, on reporting that lacked sources as definitive as the Jones Day reports—even as the university argued that the Jones Day reports should not be provided to media outlets, citing attorney-client privilege and similar exemptions from the state’s Open Records law.

“The allegations in this lawsuit are nothing more than inflammatory assertions based on articles without a basis of support beyond said articles,” the Regent’s response stated.

In their response, the Regents did acknowledge that OU “spent more than one million dollars obtaining legal advice.”

“The Jones Day reports are covered by attorney client privilege and excerpts have not been supplied to anyone without an agreement of confidentiality that protects the University’s privileges,” the Regents’ motion stated.

In a May 31, 2022, motion to strike NonDoc’s motion to compel discovery, the OU Board of Regents complained that NonDoc’s “apparent position is that the university cannot have attorney-client privilege with counsel, Jones Day, because it is a public body.”

That motion also appeared to argue that Oklahoma’s Open Records law does not apply to most records at any state agency, noting the Open Records law grants the “public’s right of access to and review of government records so they may efficiently and intelligently exercise their inherent political power [emphasis in original].

The Regents indicated that language limits public access to state government records to documents with a relationship to the election process.

“The Legislature intended to provide information to the public to allow people to cast informed ballots, but not at the cost of invasions of privacy,” the Regents’ motion stated.

The Regents also argued that allowing media to access the requested records, all created at taxpayer expense, could result in “sensational journalism,” and that allowing discovery in the case could result in public dissemination of material that would “embarrass, oppress or burden the University.”

In a June 30, 2022, response, the OU Regents said if courts assume that all records at a public institution are public records, it will create “a chilling effect on all investigations conducted by the University or any other arm of the State of Oklahoma.”

Under OU’s legal theories, anytime something occurs at a state taxpayer-funded entity that is serious enough to require the involvement of attorneys, the public could effectively lose the right to see the resulting documents from any investigation of the alleged wrongdoing.

Similar theories have been espoused elsewhere, according to one national expert on open-records laws.

“Hiding behind attorney-client privilege is a common tactic of officials with custody of tax dollars, and there are occasions when doing so is legitimate,” said Mark Tapscott, an award-winning journalist who was admitted to the National Freedom of Information Act Hall of Fame in 2006 and continues to cover Congress for The Epoch Times. “But in the vast majority of cases when tax dollars are used to review potential misconduct or criminal activity on the part of a public servant, the public’s right to know what was produced by such a review far outweighs the assertion of privilege. If that is not the case, then the privilege becomes nothing more than a tool for covering up activities that harm the public interest.”

Savage said the public deserves to know not only what happened in the past at OU, but what the university has done to make things better in the present.

“The alumni, taxpayers and donors who attended and supported the university during former President Boren’s decades-long tenure deserve to know the extent to which the allegations that he preyed on students and public employees were substantiated,” Savage said. “And all Oklahomans—especially the current students at OU—need to know if the Board of Regents has made changes to prevent such an egregious abuse of power.”

[For more stories about higher education in Oklahoma, visit AimHigherOK.com.]