Here's why you, yes, YOU, should care about colleges trying to ignore FOIA

Blowing off open records request isn't just about making life harder for journalists. It hurts everybody. And it shouldn't be okay

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We’ve got another big week ahead. Let’s get right to it.

1) Our Community Interview guest this week is David Hale of ESPN. David is happy to answer your questions about sportswriting, football analytics, the ACC, Simpsons quote, and anything else that might be on your mind. Send questions to David by leaving a comment below, DMing me on Twitter, or shooting me an email. Please submit your questions by the end of the day on Tuesday.

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We’ll get to other announcements at the end. Today, I want to talk about something very near and dear to my heart.

I want to talk about open records.

There was a lot of college sports news late last week, but I keep coming back to this excellent reporting from Emily Giambalvo and Rick Maese of the Washington Post, that exposed how multiple administrators at Big Ten universities sought to evade open records laws when discussing COVID, college football, and returning to campus. WaPo’s reporting shows that administrators moved discussions to a platform called Boardvantage, run out of the Big Ten, instead of through university emails, so the communications would not be subject to open records requests.

Various university presidents were clearly aware of this. Via the story:

After {Michigan president Mark} Schlissel asked his colleagues to share their experiences in dealing with the coronavirus on campus, {Wisconsin Chancellor Rebecca} Blank wrote: “Mark and others — please note that anything that arrives in or is sent from my email can be requested as a public record. I know I’m not the only one for whom this is true.”

Some of the university leaders responded to Schlissel’s request and shared their campuses’ experiences via email. Nebraska Chancellor Ronnie Green provided information about his school’s reopening efforts, while adding: “ ‘Ditto’ to Chancellor Blank’s request/comment. I share that same concern.” A Nebraska spokesperson declined to comment on the exchange.

Sometimes, these allegedly very smart and educated administrators tried to evade these regulations in the most cartoonishly blunt ways possible.

Not long after Blank shared her concerns with her colleagues, Schlissel wrote in an individual message to Blank: “becky, if you simply delete emails after sending, does that relieve you of FOIA obligations? I share your concern of course.”

Quick heads up. No, deleting your emails does not relieve you of FOIA obligations, and also, asking this question comes straight out of the Kyle Flood School Of Trying To Get Away With Stupid Crimes Very Badly.

By moving all discussion of these potentially sensitive topics to a third party server, Big Ten institutions are trying to prevent records of their thought process from becoming public.

This isn’t an isolated incident centered around an unprecedented crisis. This is part of an ongoing culture against open records compliance.

Let me back up real quick. Let’s talk about what open records are.

13 of the 14 Big Ten schools, like most FBS institutions, are public schools. That means that they’re subject to state level open records laws. Those laws allow anybody, not just a journalist, to inspect public records. Exactly how a public record is defined will vary from state to state, but generally, those records will include things like contracts, budget information, meeting agendas, phone records, and emails from state accounts.

The ability to make these requests is an absolutely invaluable reporting tool. It doesn’t matter if an athletic department wants to talk to you about something or not…state law may compel them to turn over certain documents. These laws are perhaps the most powerful tool for journalists, or just regular citizens, to understand what goes on inside athletic departments, state agencies and local governments.

But the dirty little secret is that not every institution takes compliance so seriously.

Some institutions have records offices that are so understaffed that an institution might not be able to process a request for five or six months. Some institutions charge significant fees for even the most routine records requests, making information gathering prohibitively expensive. And others simply stall, ignore, or outright refuse to comply, knowing that the vast majority of those requesting records won’t attempt to sue to force compliance.

And honestly, they’re correct in making that bet! Your local newspaper has probably been gutted, and isn’t itching for a potentially expensive legal battle. Most independent journalists, including yours truly, generally can’t afford lawyers every time they get a legally dubious records rejection. And even if a requester has the law and a lawyer, a school can often just stall long enough to make sure the records aren’t so newsworthy anymore.

And it’s not like state lawmakers are rushing to fix this problem. Some states, like Pennslevania and Delaware, already have such toothless state records laws that trying to get any information out of a state athletic department is impossible. Others, like Georgia, and most recently, Kentucky, are making the process more difficult and more restrictive.

This is bad news for me, of course, but it’s also bad news for all of you.

I file open records requests just about every week. I’ve filed hundreds of them since I launched Extra Points.

Open records requests are great for getting basic contractual and financial information. I have folders on my computer with dozens of apparel contracts, coaching contracts, athletic department financial reports, vendor contracts, and more. Most of them never turn into newsletters. But having them helps me understand these issues more clearly, and when I need to write about a particular coach, or a new shoe contract, or broadcast revenues for the FCS, I can write from a more accurate and informed place because I don’t have to speculate. I can cite the actual numbers, chapter and verse.

I file requests to better understand what fans or boosters think of a particular decision, in real-time, and other reporters do too. The folks over at the Texas Tribune did this with boosters and the Eyes of Texas most recently. I did this to see what West Virginia fans thought about Vic Koenning. I did this after Nebraska lost a football game to Northern Illinois. I did it to see who applied to coach at Western Michigan. I did it to see how Colorado State pitched itself as a potential Big 12 member. I did it to see who Oregon fans wanted the school to hire as a head coach.

Open records can also be a useful tool to learn how administrators approached a problem, in real-time. We used FOIA to understand how Iowa State landed on the decision to play football without fans in attendance, for example, or what the Illinois Sports Information Department did while they waited for the Big Ten to make a decision about fall sports.

This is all just from one dude. My old colleague, Daniel Libit, now over at Sportico, is the master of this tool. Folks at USA Today, the New York Times, and newspapers all over the country have used open records to uncover scandals, provide important context, and otherwise pull back the curtain on large institutions.

That benefits you, the reader. You should want to know how public resources are being used. You should want your local news to have the best reporting tools possible. You should want the law that lets you, yes you, request university documents, to be followed. If you think your local media isn’t following up on a potential story, well, there’s no more powerful tool for the citizen journalist than open records. If you want to know how an athletic department responded to COVID, or what a coach buyout is, or what fans suggested a department do…you can file the same requests I can.

Honestly, even athletic departments benefit from open records

I know not every AD and president loves it when I file an open records request. Having somebody go through your emails can feel invasive. I get it!

But not all of these requests are adversarial. I recently filed dozens of requests for scanned ticket information, in part so I could share it with another university business school, who planned to conduct a study that may help athletic departments optimize ticketing revenues. A world where open records laws compel game, coaching and vendor contracts to be made public is also a world that will make it easier for athletic departments to negotiate their own game and vendor contracts.

Ultimately, a world where news organizations can report with the most accurate original documentation possible, and where financial reports see the sunshine, is a world that while occasionally uncomfortable, ultimately helps consumers and administrators.

This is a tool worth using and protecting. And wantonly ignoring it shouldn’t go without consequences.

If you write about college athletics at all, you should know how to file an open records request in your state. If you don’t know, ask your editor. If they don’t know, email me and I’ll help you. I’m serious.

And I know that in a world that gives us so many things worthy of our anger, it’s easy to not muster up the energy to get indignant about fidelity to public records obligations. I get it.

But we should expect leaders of our public institutions to obey and honor the law, and that includes public universities and athletic departments.

We have a right to know how these institutions arrive at major consequential decisions. We have a right to know how they spend money, where they spend it, and why. It’s not nice to have. It’s not a suggestion. It’s the law, and if institutions and leaders do not intend on following that law, there should be consequences beyond a scolding newsletter.

It isn’t a perfect one, but sunlight really does make a pretty good disinfectant. And there’s a lot of stuff in this industry that could use some spring cleaning.

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Written by Jared Holst, Brands Mean a Lot is a once-a-week commentary on all the ways branding impacts our lives. Each week, he explores contradictions within the way politics, products, and pop-culture are branded for us, offering insight on what’s really being said. His most recent post is his first in a series entitled ‘The Bullshit Economy’. In it, he explores how bad economics and poor policy, rather than market needs, has given rise to startups who offer home ownership to those who can’t afford it. Subscribe here.

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