Montana Supreme Court boots open-records appeal in Krakauer case on legal technicality

We may get clarification one day from the Montana Supreme Court on whether the public is entitled to know how colleges handle the appeals of sexual-assault cases — but it won’t be any day soon.

The Montana Supreme Court has dismissed an appeal from the state higher education commissioner challenging a September 2014 court order that directed the commissioner to turn over his files about a University of Montana sexual-assault case that involved a prominent college athlete. 

The commissioner, Clayton Christian, overturned a campus disciplinary board’s recommendation to punish the former Montana football star, and author Jon Krakauer wanted to know why. He sued for access to Christian’s files for use in research on a nonfiction book about campus sexual assault.

A district court rejected the state’s contention that FERPA, the federal student privacy law, forbade disclosure of the commissioner’s files, since Krakauer agreed to accept the records with student names removed. The state asked the Montana Supreme Court to block release of the records, with the support of the U.S. Department of Education, which enforces FERPA.

Open-government groups (including the Student Press Law Center) have supported Krakauer in hopes that the case can establish the legal principle that FERPA penalizes only a policy or practice of leaving students’ records unsecured, not a decision to honor a single open-records request for newsworthy documents of public concern.  

In an April 28 order, the state Supreme Court found that the state’s appeal was premature, because issues (namely, what the state should pay Krakauer for attorney fees as the prevailing party) remained to be resolved at the district court.

Krakauer’s counsel filed a petition for reimbursement of attorney fees May 4 and is awaiting the state’s response. There is no telling exactly when the case will be completely resolved at the district court so as to make an appeal timely, but when that happens, the parties will have to re-file their briefs with the Supreme Court, meaning an ultimate resolution almost certainly won’t happen until 2016.

The delayed access to university records hasn’t stopped Krakauer from publishing “Missoula: Rape and the Justice System in a College Town,” his account of the way universities handle claims of sexual assault by students. The book focuses on the University of Montana and on one particular case in which, with the victim’s cooperation, Krakauer traces the case of Beau Donaldson, a former Montana running back sentenced to prison in 2013 after pleading guilty to sexually assaulting a female friend.