UT Regent’s Records Fight Tossed on Appeal

     AUSTIN, Texas (CN) — A Texas appeals court ruled that a lawsuit by University of Texas System regent Wallace Hall Jr. against UT Chancellor William McRaven, over records that Hall wanted to see in unredacted form, is barred by sovereign immunity.
     Hall originally sued McRaven in Travis County Court on June 22, 2015. He claimed that McRaven was wrongfully refusing to provide him a full investigative report into questionable admissions practices at the University of Texas.
     According to Hall, he had the right as a UT regent to review certain records in the report, which contained confidential student information, in unredacted form.
     The previous UT chancellor Francisco Cigarroa hired the independent consulting firm Kroll Inc. to conduct an investigation on admissions decisions at the university following claims that “outside influences” including donors, alumni, regents and/or legislators pressured the admissions office to take prospective students who were less qualified than those whose applications were denied.
     Kroll, which was paid $400,000 for the investigation, interviewed UT System officials, looked at thousands of emails and analyzed 10 years’ worth of admissions data.
     When William McRaven succeeded Cigarroa as chancellor in 2015, he convened a committee to review Kroll’s recommendations for improving the admissions process. This led to the regents adopting a new admissions policy for all UT System academic institutions in August 2015.
     In March 2015, Hall requested access to all information, “confidential and otherwise,” related to the Kroll investigation.
     McRaven and the board offered Hall a two-step process to review the Kroll report documents, where certain information would be redacted if it was deemed protected under the federal Family Educational Rights and Privacy Act and other privacy laws. Board chairman Paul Foster was given the authority to address Hall’s specific need for information relating his duties as a regent.
     But Hall rejected the two-step process and sued, claiming that McRaven was acting ultra vires, or outside his authority, by refusing to give him all of the unredacted Kroll records.
     McRaven responded by challenging the trial court’s subject-matter jurisdiction on the grounds of sovereign immunity, mootness and standing. Sovereign or governmental immunity shields the state government’s “improvident acts” from litigation and judicial remedies that would be available if the same acts were committed by private persons. The immunity usually extends to state officials sued in their official capacities, like McRaven.
     Hall then filed a motion for summary judgment and responded to McRaven’s challenge, arguing he had the right to view the unredacted student records because privacy laws did not prohibit regents from reviewing confidential admissions information.
     The Travis County Court sided with McRaven and dismissed the case.
     On appeal to the Texas Court of Appeals, Third District, Hall said he properly invoked the ultra vires exception to sovereign immunity, that the case is not moot, and that he has standing to vindicate his responsibilities as a regent.
     In a 22-page ruling issued Sept. 16, Justice Cindy Olson Bourland said that the board’s creation of a two-step process for Hall to access to the Kroll records indicated that it “rejected Hall’s assertion that he had the ‘legitimate educational interest’ required by FERPA or was otherwise authorized to see confidential student records.”
     She added, “The second step of the process reinforces the board’s decision that Hall would not be given access to the Kroll documents in unredacted form, but this step gives him the opportunity to demonstrate a legitimate educational interest in particular documents or information that he believes are necessary to review in order to satisfy an articulated, specific need related to his official responsibilities and duties as a regent. There is no indication in the records that Hall ever availed himself of the second step of the board-approved process.”
     Bourland noted that Hall never claimed that McRaven didn’t follow the rules for responding to a regent’s request for information or that he acted outside of his authority by failing to implement the two-step process.
     “The central premise of Hall’s argument is that he is entitled to see all personally identifiable student information in the Kroll file with no redactions because the information relates to the board’s duty to set appropriate admissions standards, and thus, he has a ‘legitimate educational interest’ in the personal information,” Bourland wrote. “On the record before us, however, it is the board — not McRaven — who denied Hall access to the documents in unredacted form, having implicitly determined that Hall does not have a legitimate educational interest in the information and that it may be protected by other privacy laws.”
     Considering that the lawsuit is against McRaven and not the board, Bourland said that McRaven has not acted outside his authority in withholding the unredacted documents from Hall.
     McRaven is under the power and authority of the board and “must comply with the board’s directives,” and “it was the board, through its majority vote, who ultimately refused to allow Hall full access to the Kroll file without redaction,” Bourland wrote.
     Bourland also struck down Hall’s claim that McRaven has a ministerial duty to provide a regent with requested information because it was the board that determined Hall lacked a legitimate educational interest under Family Educational Rights and Privacy Act that allowed him to see the entire Kroll file. Thus, McRaven only had authority to give Hall redacted information unless the board determined otherwise.
     “On this record, the trial court did not have subject-matter jurisdiction under the ultra vires exception to sovereign immunity, and we overrule Hall’s first issue,” the judge said. The lack of jurisdiction means the court did not have to address Hall’s claims relating to mootness and standing.
     “Having determined that Hall’s suit against McRaven is barred by sovereign immunity, we affirm the trial court’s order granting McRaven’s plea to the jurisdiction,” Bourland concluded.

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