BSU’s approach to public records raises questions

From BoiseDev.com

A Boise State University official said under oath that a senior university official renamed a document to hide it from public scrutiny and skirt Idaho’s Public Records Act, and that senior employees had been told to keep certain things out of public records due to “political climate.”

It’s the latest in a series of attempts the school has taken to avoid public scrutiny of its workings.

The admissions came from an August deposition of Nicole Nimmons, the school’s associate vice president for campus services. Nimmons was being asked by an attorney for Big City Coffee about records practices in the coffee shop’s lawsuit against the university.

Nimmons had compiled a Google Drive document with information about Big City, including “positive involvement” of the shop and its owner Sarah Fendley in the community.

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The file was named “Big City Coffee,” according to Nimmons. But, she said, at some point, Boise State’s then-AVP for Communication, Marketing and Strategy Lauren Griswold, renamed the file “B space C space C.”  Why? 

“I believe it was for it not to be put forth in a public records request,” Nimmons said under oath.

Nimmons said she could not find the document for a time, because searching for Big City Coffee no longer returned the document in the Google Drive search function.

Big City’s attorney asked Nimmons if it was standard practice to use codes to “evade public disclosure.”

“I’ve been asked and told not to put things in writing at times because of public records requests and documentation,” Nimmons replied.

Boise State often fulfills records requests by searching email and other servers for the term submitted by the person requesting records. For instance, if a member of the public asked for records about “Big City Coffee,” a record named “B C C” might not show up – even though the record would be responsive to the request.

Griswold is now the school’s leader of marketing and communication.

Big City and its owner Sarah Jo Fendley sued Boise State, alleging the school and top officials violated her rights by interfering with a contract she secured to open a second shop location on campus. The shop opened and promptly closed in the summer of 2020, after some students objected to Big City displaying the Thin Blue Line flag at its original shop.

Boise State, the law & lawmakers

Boise State spokesperson Mike Sharp said the school could not comment on the particulars of the Big City deposition because it is a pending legal matter.

Sharp did answer several questions about Boise State’s policies and procedures in general.

“Boise State’s attorneys provide general education on public records laws. Like all attorneys, Boise State’s attorneys also provide legal advice to their clients (in this case, university employees) on specific matters, including the interpretation and application of Idaho’s Public Records Act,” Sharp said. “Our attorneys do not direct employees to violate the law, nor do university administrators.”

We asked Sharp if members of the university leadership team use codes, code words, or any cipher on public work documents to avoid the documents being released later.

“University employees are not instructed to code records or use ciphers to avoid public records requests,” Sharp said. “However, University employees are encouraged and reminded to be thoughtful about what they put in writing.”

Boise State has come under increasing scrutiny from the Idaho Legislature on a host of issues in recent years. The legislature has moved to cut Boise State’s funding for what it sees as activity related to diversity, equity and inclusion. The Joint Finance Appropriations Committee has tried to stop the school from fundingBoise State Public Radio. Budget writers grilled University President Marlene Tromp last year on a host of issues, to which she provided few concrete answers at the time.

BoiseDev’s extensive reporting on Boise State over the past three years indicates a number of senior school officials have worked to keep their activities away from the public spotlight. The school has used a mix of exemptions in the Idaho Public Records Act, training for employees, coordination and review between employees and leaders, and other techniques.

‘Political climate’

Big City Coffee
Big City Coffee in Boise. Photo: Don Day/BoiseDev

During the August deposition, Nimmons said a number of employees had been instructed similarly by the school’s top brass “in a leadership meeting with regards to political climate overall and not putting detailed notes within meeting minutes and having documentation on subjects that could be very sensitive in nature to the university.”

Nimmons said the instruction wasn’t related directly to the Big City Coffee case, but open records requests in general.

The exchange continued for a few minutes, with Big City’s attorney pressing to get a better understanding of what Nimmons meant by the political climate. Lawyers for Nimmons and the university interjected several times, and took a break. After the break, university attorneys moved to end the deposition and said they’d seek some type of protective order.

Boise State and records

Boise State University has taken an aggressive and, at times, contentious approach to the Idaho Public Records Act.

The act’s preamble notes that “every person has a right to examine and take a copy of any public record of this state, and there is a presumption that all public records in Idaho are open at all reasonable times for inspection except as otherwise expressly provided by statute.”

Boise State has often taken great pains to keep items it wants to protect away from the public.

  • Boise State excluded some information about school president Dr. Marlene Tromp’s travels to both Idaho EdNews and BoiseDev, including seat assignments. To BoiseDev, the school cited the federal Health Insurance Portability and Accountability Act. However, Boise State is not a covered entity under HIPAA. The three such entities are health plans, health care clearinghouses, and health care providers. Boise State, as an employer, is not a covered entity, and HIPAA doesn’t apply to it.
  • In July, BoiseDev inquired about how funds gained from Boise State’s on-campus vending machines were distributed. Though the questions didn’t rise to the level of a reportable story, the school misrepresented how the money was spent. A spokesperson said the funds were spent “in a number of different ways including scholarships and other expenses not covered by another funding source.” A later public records request showed the funds for the past three years were used to cover a portion of an employee’s salary, except for a one-time charge of $50 for maintenance. The dollars were not spent on scholarships.
  • A top school official admitted in an email later viewed by BoiseDev that some records sought were shielded from scrutiny because they were “on a timer,” which blocked the public from seeing disclosable records. According to the records, a third-party vendor was providing information for school officials to review on a server that deleted documents after a set period of time. This allowed public employees to see the documents – but kept them from the public.
  • On numerous occasions, school attorneys communicated with officials asking for review of records, and asking if the record should be provided in response to BoiseDev’s public records requests, instead of reviewing the records for exemptions on behalf of the public without interference or input from leadership.
  • Officials tried to charge Idaho EdNews more than $700 to review emails about professor Scott Yenor. The school later backtracked.
  • In 2020, as BoiseDev previously reported, we requested the Twitter “block list” of former head coach Bryan Harsin. The school repeatedly denied the request over several months before finally providing the list after a slew of requests made it clear the record was public.
  • university official incorrectly told the Idaho Statesman in 2019 that no contract had been signed for a Garth Brooks concert at Albertsons Stadium, when, in fact, one had.

Keeping ‘secrets’

On more than a dozen occasions in recent years, Boise State’s attorneys have asserted that it has the right to keep secrets from the public — specifically trade secrets.

The school has blacked out dollar amounts it expected to be paid by Dollar Loan Center. It redacted the third priority for capital funding of the tennis team. It blocked a list of people it hoped to ask for money.

In short, if it wants to hide an activity from the public, the school’s attorneys often call it a trade secret. The school’s use of this provision in Idaho Code as a Swiss Army knife to keep things it wants to keep secret isn’t new.

In 2013, the school denied an Italian journalist’s efforts to obtain records on the Amanda Knox case. Knox was freed, in part after the work of the Idaho Innocence Project, which operated within Boise State. In this case, the school told the journalist that the Idaho Innocence Project’s work was still secret, even though the project’s director Greg Hampikian, widely publicized his work on the case.

The trade secrets provision in Idaho code is spelled out in plain language that they are for secrets submitted to public agencies by third parties “in response to public agency requests for proposal” and the like. Nowhere does it say that a public agency may keep its own secrets.

Idaho code provides on a single remedy for someone requesting public records to appeal a decision by an agency: suing in district court. Because of the expense and time involved, this step historically has been taken only in rare instances. Otherwise, agencies are left to police themselves.

What’s next for Big City

Big City’s case against Boise State continues to work through the pre-trial process and motions. The trial is tentatively set for August 2024.

From BoiseDev.com

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