LARAMIE — Albany County District Court Judge Tori Kricken ruled Friday that the University of Wyoming must turn over, within 30 days, numerous records related to former UW President Laurie Nichols to several news organizations, including the Laramie Boomerang, the Casper Star-Tribune and WyoFile.
If upheld by the Wyoming Supreme Court, Kricken’s ruling could give the public a glimpse into the reasons the university’s board of trustees opted not to renew Nichols’ contract after negotiating one in 2019.
However, the records — including emails among trustees regarding a drafted contract extension for Nichols and investigatory materials concerning the ex-president — are unlikely to be made public within the next month; UW spokesman Chad Baldwin told the Boomerang that the university plans to appeal Kricken’s ruling.
The news organizations had united to petition a court review of UW’s denial of several public records requests made by Star-Tribune reporter Seth Klamann.
After UW announced in March that Nichols would not return as president for the 2019-2020 academic year, Klamann started requesting numerous records related to Nichols’ outing, beginning with a March 28 request for emails including the board of trustees’ four most powerful members that included the keywords “Nichols, Laurie, president, seep, scrape, renewal, evaluation, Steve Portch, Portch.” Portch had conducted Nichols’ performance review in 2017. UW’s attorneys found 2,235 emails related to that search, and released just 157 pages of which to the Star-Tribune. The university had argued the rest of the emails were not public records as defined by Wyoming law.
UW claimed a “deliberative process privilege” for emails regarding proposed terms of a contract renewal for Nichols, citing Wyoming statute that says governments can withhold from the public “intraagency memoranda or letters” on the “ground that disclosure to the applicant would be contrary to the public interest.”
However, after she privately reviewed those withheld emails, Kricken ruled that deliberate process privilege is not relevant to any of the withheld emails, citing a Wyoming Supreme Court ruling that says such deliberative process privilege can only be used to withhold documents that would give a misleading pictures of a governments’ position. That is not the case with the trustees’ emails regarding Nichols’ proposed contract renewal.
“The documents include suggestions for amendments to the proposed renewal contract under negotiation, and suggestions for amendments to the proposed renewal contract under negotiation,” Kricken said. “No deliberation is reflected; no methods of reasoning, and, in fact, no discussion at all is included in the communications. They simply include proposed text to attach to a draft of Dr. Nichols’ renewed employment contract during negotiations, with some changes noted within the contract itself. Nothing within the communications is ‘so candid or personal in nature that public disclosure is likely in the future to stifle honest and frank communication within the agency.’
“The public has a compelling interest in knowing the employment details of the President of the only university in the state of Wyoming and how public funds are being used, and, while the contract was never finalized, the communications in dispute contain little or no private deliberative information regarding the discussion or decision-making process on the part of the board.”
Kricken also ruled that UW’s invocation of attorney-client privilege was an inappropriate reason for the university to not provide copies of emails that involved UW’s general counsel. The judge will, however, allow the university to withhold a few requested emails that Kricken ruled are, in fact, eligible for attorney-client privilege to be invoked.
“However, the fact that general counsel is a party to, or even the author or recipient of, a communication does not automatically make the communication privileged when it does not seek to offer legal advice,” Kricken said.
For the emails that UW doesn’t need to release because Kricken determined attorney-client privilege applies, the university will still need to provide news organizations with a “privilege log” for those withheld records.
By Daniel Bendtsen
via Wyoming News Exchange