OKLAHOMA — A district court judge’s order to unseal court documents in an Oklahoma State University football player’s lawsuit against the school was only a temporary victory for the OSU student newspaper, which is seeking to make the documents open to the public. The football player’s attorney filed an appeal today with the Oklahoma Supreme Court to overturn Judge Donald Worthington’s Jan. 6 order, which means the records in OSU running back Vernand Morency’s lawsuit will remain closed while the case awaits a ruling from the state’s highest court.
Morency was suspended from the football team in 2003; he sued the university to maintain his student status and athletic eligibility. His case was dismissed in September 2004. Worthington granted Morency’s request that the court documents in the case remain sealed, but an anonymous tip led the Daily O’Collegian to investigate the lawsuit. The paper filed a motion in September to make the court documents public.
Worthington ordered Jan. 6 that the court documents be unsealed, with some information — such as names and personally identifiable information about an alleged sexual assault victim involved in the case– redacted, said Daily O’Collegian lawyer Bob Nelon. The judge stayed the order pending the filing of an appeal. The stay will now be extended indefinitely while the Supreme Court decides whether to grant the appeal, said Payne County court clerk Lisa Lambert.
Morency’s attorney, Stephen Jones, said he will challenge the student newspaper’s standing to file the motion to make the documents public. Jones said there was no basis for the Daily O’Collegian to sue to have the court documents unsealed because Morency’s case against the university was already dismissed. Furthermore, Jones said, the newspaper does not have standing to challenge an agreement reached by Morency and the university to keep the records sealed.
“The O’Colly is part of Oklahoma State University. It’s funded in substantial part by mandatory student fees,” Jones said. “So our position is that the O’Colly is estopped from seeking the relief since … OSU already agreed to the sealing. The O’Colly can’t undercut what its parent organization has done.”
However, a New York court ruled in December that an independent student newspaper was not an arm of the university and could not be bound by agreements entered into by the school. (See NYU paper not barred from printing sexual assault victims’ names, court rules.)
Daily O’Collegian Editor in Chief Jared Janes said he is confident Jones’ argument will not hold up in court. The newspaper was incorporated as an independent business in 1926 and is financially independent from the university, Janes said.
Morency’s attorney said he would also challenge the redactions that were agreed upon by Nelon, counsel for the university and counsel for the alleged sexual assault victim, saying that if the records are released, they should be released in their entirety.
Nelon said that much of the redacted information would have been prohibited from disclosure under the Family Educational Rights and Privacy Act and the Health Insurance Portability and Accountability Act.
These redactions would not have prevented the Daily O’Collegian from ascertaining from the documents the reasons why Morency was suspended from the football team in 2003 and why he subsequently sued the school, Nelon said.
“One can really understand the gist of the allegations that Morency made against the university officials,” Nelon said. “It’s like taking out a Social Security number or a name — you don’t need that to understand what was being alleged. The complete substance of the lawsuit and the underlying allegations is quite clear, even from the redacted version.”
The court documents shed light on sexual encounters on college campuses and the aftermath of these encounters, Nelon told KOCO TV, an Oklahoma news station.
Janes said he is disappointed that Worthington’s order to unseal the records will not be carried out.
“It’s disappointing that they’re going to carry this to the Supreme Court when the lower courts have already ruled that we have a right to that information,” he said.
— Campbell Roth
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