STEPHEN F. AUSTIN STATE UNIVERSITY Office of the General Counsel P.O. Box 13065, SFA Station « Nacogdoches, Texos 75962-3065 Phone (936) 468.4305 » Fox (936) 468:3875 August 29, 2018 Open Records Division Office of the Attorney General P.O. Box 12548 Austin, Texas 78711-2548, Re: Open Records Requests received August 22, 2018 Dear Sir or Madam: Stephen F. Austin State University received the attached Public Information Act request on August 22, 2018 from KSLA News 12. This request seeks “From May 1, 2018 until June 19 2018, any/all communications including but not limited to emails, internal memos, or correspondence that mention Clint Conque and any alleged violation of university poliey, written or received by the following university administrators or personnel: a, Baker Pattillo, b. Steve Bullard, c. Steve Westbrook, d. Ryan Ivey, e. John Branch, f. Loree McCoy, g. Charlie Hurley, h. Stephen F. Austin State University Board of Regents. 2. Responsive information to this request has been produced. 3. We would like to reiterate our request for the specific policy Mr. Conque allegedly violated that lead to his initial suspension as head football coach. While the University is objecting to producing some of the information requested, citing privacy concerns, as a former public employee those arguments should not apply to a request for merely asking for the specific policy violation itself, without further detail, fact or information, 4. Complete investigative file regarding the school policy violation, and whether any private/outside firms or individuals have been retained to conduct such an investigation, including any/all records showing contracts, billing statements, and payments made to those firms or individuals. 5. An index or list of any/all Title IX investigations launched by the University since January 1, 2018.” An ongoing investigation into alleged violations of university policy by Clint Conque is currently being conducted. The university hereby seeks review of this public information act request and asserts the enclosed information responsive to the request is excepted from disclosure. This is the third request under the Public Information Act for information relating to the ongoing investigation into alleged violations of university policy by Clint Conque. The two requests received previously were referred to the Office of the Attomey General for a ruling on July 2, 2018 and August 21, 2018. Please find both of these referrals attached. Some of the information contained in this request appears to be comments on the university’s assertions in the immediately previous referral to the Office of the Attorney General and not an actual request for additional or new information. ‘The requestor has been provided with the information to part 5 of the request, The requestor has also been provided with some of the information requested in part 4 of the request, namely contracts with and payments made to outside firms retained to conduct the investigation. Part 4 additionally requests the “complete investigative file”. An external party is conducting this www.sfasu.edyinvestigation. Although records held by a private entity on behalf of a governmental body may be considered subject to the Public Information Act (See Tex. Gov't Code § 552.002(a)), the university does not own or currently have the right to access this information and it will not be ‘made available to the university until the conclusion of the investigation, As such, this information cannot be provided to the requestor or to the Office of the Attomey General at this time. It is unknown to the university what information may be contained within that file, but to the extent information was disclosed to the investigator by the university, it has been provided for review. Included in the file is a draft report prepared by the outside investigator into the alleged policy violations. Before the report was finalized, additional evidence was presented that resulted in the draft report being withdrawn and the investigation continuing. 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: (a) 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 reportin (©) Internal accounting controls; or (@ Auditing (2) “Institution of higher education” has the meaning assigned by Section 61.003 (©) Information is excepted from disclosure under Chapter 552, Government Code, if it is collected or produced: (1) in a compliance program investigation and releasing the information would interfere with an ongoing compliance investigation 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. § 51.971(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 an open, ongoing compliance investigation concerning allegations of violations of university policy. The investigation is being conducted in accordance with the applicable university policies, and generally policy 2.12, Compliance. Release of the attached information would interfere with, and potentially compromise this ongoing investigation, as it would dissuade witness participation in the investigation. 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 Attorney 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 sworn 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 Attorney General has held in numerous ORLs (which the university understands are non-binding), including OR2017-08313, OR2017-09900, OR2017-12405, OR2017-01848 and OR2015-01633, that information subject to §51.971 must be withheld. In addition the university asserts that this 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 Jaw 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.” {d_ 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.” Jd. 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 $.W.2d 668. The Court in Morales v, Ellen, 840 S.W.2d 519 (El Paso 1992), applied the test set out in Indus, Found, v. ‘Tex. Accident Bd., 540 S.W.2d 668 in light of the additional guidance provided in Hubert. Morales y. 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