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Media Fairly Unhappy Amy Herman Doesn't Take Notes

*Insert bad lawyer joke here*

Probably the most interesting aspect of UNC foray into NCAA violations is not the investigation itself but the back and forth between the University and the media group suing the school for the release of records related to probe. What makes it so interesting is there are larger "real world" issues involved and general philosophical questions we get to ponder as it pertains to issues of government transparency and privacy. One of those questions arose this week with the release of UNC associate athletic director for compliance Amy Herman's deposition.

I referenced this the other day and for my money it may have been the most fascinating document I have read so far in this scandal. For one, it reveals how UNC operated, especially Herman. Secondly, the questions being asked of Herman tell us a lot about what the media really wants in all of this. The deposition also showed UNC made an effort to create as few public records as possible and even in cases where there were documents, efforts were made to keep the identities of the student-athletes involved confidential.

It is that last part that seems to have upset the media, as witnessed in this article from the Charlotte-News and Observer's Ken Tysiac which begins by saying(emphasis mine)

Two comments from a sworn deposition of a UNC-Chapel Hill official appear to show efforts by UNC to keep information from becoming public.

Yes and no. Did UNC avoid creating public records? Yes. Has it kept all the relevant information about the investigation from coming out. No.

During the deposition, after Herman has answered numerous questions about whether she took notes, recorded interviews and opted for verbal responses to various questions over written ones, the media lawyers ask, point blank, if Herman was directed by legal counsel to not create documents. Herman affirmed that was the case. Herman was then asked if anyone besides legal counsel advised her against doing so. In other words, the media lawyers wanted to know if Dick Baddour or Holden Thorp or I don't know, Butch Davis, told Herman to avoid creating documents which could later be revealed. Herman's lawyer, Melissa Tripp(from the NC Attorney General's office) advised her not to answer with a very interesting argument.

I'm also going to object from the standpoint of it is not unlawful to not create a public document. I mean, some would even say that that's actually good advice, to not create public documents. There's no requirement that public documents be created if you could pick up a phone and talk to somebody.

Having already perused the comments section for this article, the predictable weeping and gnashing of teeth which will consume 40 pages at Pack Pride by sundown has started. People will whine that UNC is not being transparent and is making an end run around a state law regarding public records. Of course these are also the same people who would claim "1st amendment" when a private entity choose to censor speech of some sort because they don't understand the law. Ms. Tripp is correct. There is nothing in the law which says a public official or someone working for a public entity is required to create a document, write something down, send an email or scribble diagrams on a white board. If Herman needed to get an answer from Dick Baddour or the NCAA or Butch Davis, doing that verbally is an acceptable method. In fact, 20 years ago, all of the communication discussed here would have been verbal because the mail took too long and email was not widely used. So the complaint that Herman or anyone else involved didn't create documents that the media could subsequently swoop in reeks of pouting like a child who doesn't get their way. In short, UNC outflanked the media on this issue by not creating documents since the law only requires a public entity to release what you have.

That being said, is there an issue with this being an overt decision on the part of UNC via its legal counsel? Possibly but Chancellor Holden Thorp speaks to part of the reason why in his statement to the N&O:

In a statement released Thursday, UNC Chancellor Holden Thorp said that from the beginning, the NCAA has made it abundantly clear that maintaining the confidentiality of its joint investigation with UNC was crucial.

"So I can understand exercising caution in what you put in a document," Thorp said. "But from a practical standpoint, that hasn't prevented the public from knowing the facts and the results of the NCAA investigation. We've released thousands of pages of documents, including the Notice of Allegations and our response."

UNC's defense here, more or less, is predicated on the NCAA's gag order during the investigation. Back when all of this came out the oft repeated mantra from UNC officials was the NCAA asked them not to comment on the specifics of the investigation. To ensure this happened, UNC made certain that (1) as few people as possible were involved which is Herman talks about doing a fair amount of work on her own and (2) by not creating documents which the media could sue to obtain. Aside from simply not writing things down and using phone calls/face-to-face meetings over email, UNC retained outside counsel to record all the interviews in the agent prong. The NCAA, likewise made recordings for its own use. When Herman or anyone else had a question about an interview they simply called the outside counsel and asked for the information. It is interesting to note UNC was prone to make recordings when it came to the academic prong since FERPA would protect those since it was all related to academics.

In short, when it came to the agent side of the investigation no one on the payroll of the State of North Carolina created documents, recordings etc. nor were they in possession of them. The outside counsel retained by UNC had the information and since attorney-client privilege is sacrosanct in the legal realm, those records are locked up tight. In fact, that aspect of it strikes me as a little more of an "end run" on the law that simply not creating documents. Why? Because technically documents did get created just not by UNC therefore the school cannot release that it doesn't have even thought it has access to them. However, the confidentiality issue is important as it Thorp's other comment that there is no restriction on knowing what happened in this investigation.

This is really the salient point in all of this. It also pulls back the curtain on the media's motivation and why, in my opinion, that motivation doesn't necessarily align with the spirit of the public records law. The purpose of such laws is to ensure public entities do not do things secretly. After all, this is taxpayer money being spent so the public ought to know what is happening within enterprises it funds. However, there is no lack of records of what happened in this case only a restriction on certain details. The very ugly and sordid tale of what happened at UNC has been told in the NCAA's notice of allegations. It has been told in the phone records, reinstatement requests, appeals to the NCAA, etc, etc, etc. In two to three months time the NCAA will pronounce final judgment on UNC, dole out the penalties and in a very length summary report, tell the story of how UNC committed nine NCAA violations. In the end, the public will know the relevant details of what went on at UNC.

For the media, that is simply not good enough. The story the NCAA tells does not sell papers or drive ratings nearly as much as transcripts of interviews with Marvin Austin or John Blake. The media wants the dirty little details. The media wants to be able to print names and more importantly, the media wants to tell this story on their own terms. Regurgitating NCAA reports does not a Pulitzer make. Yes, they argue the public has the right to know what happened throughout the process but the public does and will know. Adding names and knowing what specifically was said in this interview or what Herman told Baddour about Greg Little is solely needed to sensationalize the story. Those details do not add anything to what the NCAA reports tell us.  Not to mention, UNC football is a big deal but not nearly as big as a potential scandal in another branch of state government which precedent in this case would help the media uncover.

Speaking for myself, I have a hard time feeling any sympathy for the media on this. Unless it can be proven someone at UNC actually broke laws here they simply need to stop whining. The truth is they were outflanked by UNC which means whatever was paid to the likes of Rick Evrard for legal counsel was apparently worth it. Of course this is also the same group that attempted their own end run around their lack of access to DMV records by going after student-athlete parking tickets. No hypocrisy there right? While I am all for public accountability, it should be pointed out UNC is being held accountable in this realm by the NCAA who is charged with enforcing rules and punishing schools who break them. Public access laws exist to make sure the government is not getting away with bloody murder. It is fairly clear UNC is not getting away with anything.

UNC's efforts to compartmentalize aspects of the probe and reduce the scope of the paper trail for the sake of NCAA-mandated confidentiality in no way obstructs the public from knowing the whole story. There is no curtain masking the violations UNC committed and anyone paying attention this investigation can draw a wide range of educated guesses to fill in the blanks. The UNC football program has been very publicly charged with nine major infractions. The school has been damaged from a public relations standpoint. The entire football coaching staff will ultimately be replaced inevitably setting the program back. The NCAA will penalize the school as is its duty. The only thing knowing the intricate details changes is how the story is written and how many papers get sold.

For me that is simply not a good enough reason. UNC has given its pound or two of flesh. Time to move on.