Quick, hide the records | Arkansas Blog

Wednesday, April 4, 2007

Quick, hide the records

Posted By on Wed, Apr 4, 2007 at 6:24 PM

By now this blog has carried a bit of the blowback from wild Hog board discussions about an FOI request made for football coach Houston Nutt's telephone records.  They shed some light on the frequent contact that Nutt has had at key times with a Hog booster who wrote an ugly e-mail to Mitch Mustain and with Nutt's agent. Something is also being made about the large number of phone calls and text messages Nutt made to a female Fort Smith newscaster, including one minutes before an important football. game. This was a time, disgruntled fans might say, that Nutt could have better spent his time offering counsel to his kick returner than discussing with the newscaster what his lawyer contends was a shared interest in a nonprofit organization.

The Hog fan sent his information and questions to the UA Board of Trustees. Nutt had a LR lawyer send a letter threatening legal action. Practicing law here without a license, I think the threat was empty, as a practical matter if nothing else. Create a situation where Nutt could be forced to testify about his phone calls and produce text messages? Hard to imagine. In any case, it hasn't discouraged Internet postings of the phone records, of assorted correspondence and analyses of how various public statements might conflict with the phone records.

The Times has been working on this story. Key people have not returned calls. But in the age of the Internet and talk radio, it has been impossible to keep the story bottled up.

Inevitably, the calls reached the Hog homers at Drivetime Sports today. It's terrible, the hosts seem to agree, that somebody could paw through phone records of a coach (public records of a public employee, I'd add). But this is what caught my attention:

Randy Rainwater said (and you'd think he'd know) that to prevent future embarrassment, records of Hog athletic phones are now in keeping of the Razorback Foundation. Presumably, no university money is being sent along to pay for the phones.

For years, the University has participated in a sham. The Razorback Foundation is nominally independent and thus out of the reach of FOI requests, though we have no definitive law on the point. They've taken some steps to have an independent operation. But a vast amount of the money raised by the Foundation comes from use of university-owned facilities, in the form of payments for preferred seating at athletic contests. University officials and employees, not solely Foundation officials, facilitate that operation in many ways, along with uncountable intertwined relationships on pay and perks from the athletic director on down. I think this nexus -- the Foundation is supported at least in part, if indirectly, by public funds -- makes Foundation records open to the public.

Taxpayers in other states have successfully sued for access in similar situations, I've been told by FOI experts. The fact that a single fan was not intimidated when Houston Nutt sicced a lawyer on him suggests there might be somebody out there with sufficient moxie and might to take on this delegation of accountability and authority over a multi-million-dollar athletic operation to an unaccountable private entity. Remember that this entity would not, could not, exist but for the public franchise granted through our land grant university.

Sport is said to be a great development factor for a university. If so, it follows that damage from embarrassing actions is equally great. Such a public trust should not be farmed out to a secret financier that cuts deals with and shelters people who might be guilty of  poor judgment.

I know this is a tough sell legally.  I once argued for openness about the lease-purchase of the UA by the Walton family gift and spent $13,000 in legal fees before a circuit judge and Hog alumnus ruled against me on access to records that would show what the University promised in return for the money. I got some cold comfort later when not-yet federal Judge Leon Holmes, who'd done a fair amount of media law, was quoted as saying he thought the case had been wrongly decided. I couldn't afford an appeal. Perhaps, in the right court and with a bit of the shine off power hitters like Frank Broyles and John White, justice might be done the next time around.

Say again: We haven't seen the final episode of As the Hog Turns.

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