STEPHEN F. AUSTIN STATE UNIVERSITY Office of the General Counsel P.O. Box 13065, SFA Station « Nacogdoches, Texas, 759623065, Phone: (936) 468.4305 + Fax (926) 458-3875, March 29, 2019 Open Records Division Office of the Attorney Gener P.O. Box 12548 Austin, Texas 78711-2548 Re: Open Records Requests received March 8, 2019 Dear Sir or Madam: Stephen F. Austin State University received the attached Public Information Act request on March 8, 2019 from KSLA News 12. This request seeks “From May 1, 2018 until December 31, 2018, any/all commun cluding but not limited to emails, internal memos, or correspondence that mention Clint Conque and any alleged violation of university policy, written or received. 2. Specific policy Mr. Conque is alleged to have violated. 3. Investigative file regarding the school policy violation. 4. Any/all Title IX investigations that may have involved Mr. Conque in his role as head football coach.” The university hereby seeks review of this public information act request and asserts the enclosed information responsive to the request is excepted from disclosure. Please note that the request was received on March 8, 2019 and that the university, including all administrative offices, was closed from March 16 ~ March 24, 2019 for spring break The university asserts that the requested information is excepted from disclosure under Section 552.101 and the doctrine of common law privacy by the Texas Supreme Court’s ruling in Indus. Found, v. Tex. Indus. Accident Bd., 540 S.W.2d 668 (Tex. 1976), that section 552.101 applies to information when its disclosure would constitute the common law tort of invasion of privacy through the disclosure of private facts. Specifically the Court stated that information “is excepted from mandatory disclosure under Section 3(a)(1) as information deemed confidential by law if (1) the information contains highly intimate or embarrassing facts that the publication of which would be highly objectionable to a reasonable person, and (2) the information is not of legitimate public concern unless the requestor can show that, under the particular circumstances of the case, the public has a legitimate interest in the information notwithstanding its private nature.” Id, at 685. The court also states “that the particular interest of the requestor, and the purposes for which he seeks the information, are not to be considered in determining whether the matter requested is of legitimate concern to the public, insofar as the requestor’s interest in the information is the same as that of the public at large.” /d. It is the university's contention that the information responsive to Mr. Stanley's request falls within the zones of privacy enumerated by the Court and is therefore excepted from disclosure. Id. at 679. In Hubert v, Harte-Hanks Texas Newspapers. Inc. 652 S.W.2d 546 (Tex. App.—Austin 1983) the Court provided further clarity regarding the information deemed sensitive and therefore withheld from disclosure under Indus. Found, v. Tex. Accident Bd., 540 8.W.2d 668. The Court in Morales v. Ellen, 840 S.W.2d 519 (El Paso 1992), applied the test set out in Indus. Fou www.sfasu.eduTex. Accident Bd., 540 S,W.2d 668 in light of the additional guidance provided in Hubert. Morales v. Ellen concerned a situation analogous to the one at issue here. Specifically the Court held that the names of witnesses and their detailed affidavits given during an investigation by their employer could not be released as this is exactly the type of information that is exempted from disclosure under the privacy exemption to the Public Information Act. It is therefore the university’s contention that the information responsive to Mr. Stanley's request are excepted from disclosure as they fall within the privacy exception of Industrial Foundation and relate to an investigation conducted by their employer. Section 552.101 of the Texas Government Code excepts from disclosure “information considered to be confidential by law, either constitutional, statutory, or by judicial decision.” Tex. Gov't Code §552.101. This section encompasses section 51.971 of the Texas Education Code. Section 51.971 of the Texas Education Code provides, in relevant part: (@) In this section: (1) “Compliance program” means a process to assess and ensure compliance by the officers and employees of an institution of higher education with applicable laws, rules, regulations, and policies, including matters of: (a) Ethics and standards of conduct; (b) Financial reporting; (©) Internal accounting controls; or @ Auditing. 2) “Institution of higher education” has the meaning assigned by Section 61.003. (©) The following are confidential: (1) information that directly or indirectly reveals the identity of an individual who made a report to the compliance program office of an institution of higher education, sought guidance from the office or participated in an investigation conducted under the compliance program. Tex. Educ. Code §51.971(a). Stephen F. Austin State University is an independent public institution of higher education established under Chapter 101 of the Texas Education Code, with its own Board of Regents, and as such is an institution of higher education for purposes of Section 61.003 of the Texas Education Code. See id. §51.972(a)(2). At its July 26, 2016 meeting, the Board of Regents passed university policy 2.12, Compliance (see attached) to formalize the university’s existing compliance initiatives. As described in the policy, it “sets forth the rules governing the creation, implementation, and periodic evaluation of an institutional compliance program for the university.” The compliance program is “designed to provide a framework for promoting an organizational culture that: (1) promotes a commitment to ensure the highest level of compliance with all applicable laws and regulations, institutional policies, procedures and other rules governing higher education...and (2) prevents and detects criminal conduct or other conduct inconsistent with an effective compliance program.” The policy concludes by stating that the general counsel and chief audit executive are responsible for conducting a compliance program investigation or monitoring the investigation conducted by an appropriate operating unit of the suspected violation(s). Findings and recommendations are then presented to the chair of the Board of Regents, chair of the Finance and Audit Committee, and the president.The information requested pertains to a compliance investigation concerning allegations of violations of university policy. The investigation was conducted in accordance with the applicable university policies, and generally policy 2.12, Compliance. Release of the attached information would directly reveal the identity of the individual(s) who made a report to the compliance office, sought guidance from the office or participated in the investigation conducted under the compliance program. The university contends that release of redacted versions of the requested information will result in the identity of individual(s) who made a report, sought guidance, or participated in the investigation being revealed indirectly, given the detailed nature of the report and other requested information. Revealing the identity of individual(s) who make a report to the compliance program, seek guidance from the compliance office, or participate in an investigation conducted under the compliance program will dissuade individuals from making reports, seeking guidance from the compliance program office, or participating in an investigation conducted under the compliance program. Participation in the university’s compliance program by members of the ‘community, both internal to the university, and external are crucial for the compliance program to be effective. When an investigation is conducted, witness participation is a vital component to the investigation and necessary for the university to conduct a full and fair review of the facts. Public disclosure would strongly limit the ability of the university to fulfil its compliance obligations. This same reasoning was applied by the Office of the Attomey General well before the passage of §51.971 in ORD 230 (1979). On page 5 of the decision, the Office states “In regard to the tapes, transcripts, affidavits, and swom statements, we believe there is a significant interest protected under the Open Records Act which precludes their disclosure. It is that of encouraging persons to report possible misconduct without their identity being disclosed. This interest is protected by recognizing the informer’s privilege, which this office has previously recognized and applied as. ‘making information confidential under section 3(a)(1).” More recently the Office of the Attomey General has held in OR2017-01848 (which the university understands is non-binding), that information subject to §51.971 must be withheld, ‘The university additionally contends that some of the enclosed information is excepted from disclosure under Section 552.107(1) as it is information protected by the attorney-client privilege. Open Records Decision 676 (2002) interpreted Section 552.107(1) to protect the same information as Texas Rule of Evidence 503. In seeking to withhold this information the university asserts that it has met the standard of Texas Rule of Evidence 503 and therefore Section 552.107(1). First, the information sought to be withheld is contained in emails and text messages, which constitute communications. Second, the communications were sent “to facilitate the rendition of professional legal services”. Specifically, counsel is providing legal advice regarding the applicability of federal statutes and university policy, as well as the next steps in the investigative process set by aforementioned statutes and policy, determining the applicability to a factual scenario, and advising on potential litigation; all of which are key roles of counsel in providing professional legal services to clients. Third, the communication is between university counsel and university employees acting within the scope of their duties on behalf of the university. Counsel is therefore providing legal services to the university, the client government body. The requested information also includes communications between university counsel and the outside investigators conducting the investigation. These communications relate to an investigation being conducted on behalf of the university, the client government body. Counsel was therefore acting within the scope of his employment and providing legal services to the client by managing the investigation. Fourth, the communication was only intended for disclosure to specified individuals in order to provide legal services. The communications are between counsel and limited personnel within the university, acting within the scope of their employment, or to outside investigators conducting an investigation for the client. Therefore the information contained within these