NEW ORLEANS – A trio of federal appellate judges has ruled that Louisiana State University did not break the law when it kept records related to a sexual misconduct investigation against its former football coach, Les Miles, off-campus, finding that the documents were covered by attorney-client privilege.
U.S. Court of Appeals for the Fifth Circuit judges Carl E. Stewart, Stuart Kyle Duncan and Kurt Engelhardt issued a ruling to that effect on June 17, in litigation brought by former LSU Assistant Athletic Director Sharon Lewis, versus two of the school’s attorneys, Vicki Crochet and Robert Barton of Taylor Porter.
Stewart authored the Court’s opinion in this case.
The matter of whether or not public records were unlawfully withheld began when USA Today published an article in late 2020, alleging numerous instances of sexual misconduct had taken place in the LSU athletics program.
Lewis initially sued LSU’s Board of Supervisors and Athletics Department in federal court in 2021, for retaliation under Title VII of the Civil Rights Act and Title IX, while also bringing forward Racketeer Influenced Corrupt Organization (RICO) claims against both Crochet and Barton – who LSU had retained to review both its Title IX compliance and the instances of misconduct mentioned in the USA Today article.
Lewis asserted that the attorneys worked collectively with the school to suppress records of sexual misconduct claims made against members of the LSU athletic community, including Miles, other staff and university football players.
But at the end of last year, a Louisiana federal court jury found in favor of the school and dismissed all of Lewis’s claims against LSU.
However, a prior ruling from U.S. District Court for the Eastern District of Louisiana Judge Susie Morgan during the pendency of that case found Lewis had provided enough evidence during discovery to make a prima facie allegation that LSU’s Board of Supervisors violated Louisiana state law with respect to public records – which mandates that public records be maintained in offices accessible to the public, and that any intentional removal, destruction and/or concealment of said records can be a criminally-liable action.
Specifically, Morgan pointed to evidence from LSU dated May 15, 2013, which discussed the school wanting to keep records related to the sexual misconduct investigation against Miles at Taylor Porter’s law offices, rather than at LSU. This, Morgan then reasoned, was enough to allege that the aforementioned crime had been committed, leading Crochet and Barton to appeal to the Fifth Circuit.
The attorneys countered that the documents in question were exempted from state law-related disclosure by attorney-client privilege. In its ruling, the Fifth Circuit noted its unanimous agreement with Crochet and Barton.
“It is uncontested that the Board is a public body. The Student Complaint Memo, Memo to File, and its supporting documents were created by the Board’s retained counsel, and thus likely qualify as public records unless some exception in the Louisiana Public Records Act applies. Louisiana courts have observed that La. R.S. 44:4.1(C) makes clear that ‘attorney-client communications are an exception to the Public Records Law and are not a public record,” Stewart said.
“Based on this persuasive authority, we conclude that the unredacted copies of the Student Complaint Memo, Memo to File, and supporting documents were not public records at the time of the alleged concealment. Furthermore, appellants [Crochet and Barton] correctly point out that the student complainant who is mentioned in the Student Complaint Memo and Memo to File consistently expressed that she would not consent to the disclosure of the unredacted report. This demonstrates that the documents may also be exempted from inclusion under the Public Records Act, based on the student’s right to privacy afforded to her under Article I, Section 5 of the Louisiana Constitution.”
Stewart continued that “although the Public Records Act’s exceptions are to be construed narrowly to ensure the public right of access, there is minimal evidence supporting the District Court’s conclusion that the Board and appellants actually concealed the documents.”
“In its Crime-Fraud Exception Order, the District Court stated that Board member Joe Alleva testified that the Board members chose to preserve the documents in the law offices of Taylor Porter to ‘stop [the Taylor Porter Investigation] from becoming public information.’ Our close review of the record demonstrates the District Court’s error in this determination. Alleva testified that he believed that the Board chose to preserve the unredacted copies of the documents at Taylor Porter’s offices to ‘protect the name of the young lady and to stop it from becoming public information.’ In its Crime-Fraud Exception Order, the District Court shortened this response to only mention that the Board wished to ‘stop [the Taylor Porter investigation] from becoming public information,” Stewart stated.
“This discrepancy between the actual testimony and the District Court’s interpretation of the testimony raises doubt as to the correctness of its determination. Beyond this inconsistency from the record, Lewis presented little other evidence demonstrating actual concealment of the alleged public records. Thus, we conclude that the district court clearly erred in determining that appellants and the Board criminally concealed public records as contemplated under La. R.S. 14:132(B).”
The Fifth Circuit found Morgan’s prior ruling to be an example of “clear error”, reversed it and remanded the case for further proceedings consistent with its own finding.
U.S. Court of Appeals for the Fifth Circuit case 23-30386
U.S. District Court for the Middle District of Louisiana case 3:21-cv-00198
From the Louisiana Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com