Two reports into serial financial and sexual misconduct allegations at the University of Oklahoma are privileged as a matter of law, Cleveland County District Judge Michael Tupper ruled Dec. 20.
In his 30-page order granting OU’s motion for summary judgment in the Open Records Act litigation brought NonDoc Media and me, Tupper said OU “properly exercised its statutory discretion in withholding” the two reports prepared by Jones Day, an international law firm the university paid more than $1 million to investigate decades of donor data misreporting and sexual misconduct allegations against former OU President David Boren.
“Attorney-client privilege applies to the Jones Day reports. The informer privilege applies to the sexual misconduct report. The university has not waived its privileges. The sexual misconduct report is protected work-product,” Tupper wrote in his conclusion. “The witnesses have a constitutionally protected right to privacy in the reports.”
Tupper’s decision comes more than three years after NonDoc and I filed a lawsuit alleging OU’s refusal to release the investigative reports violates the Oklahoma Open Records Act. We argue none of OU’s claimed ORA exemptions are applicable to the facts surrounding the reports, several of which remain in dispute.
Tupper, who privately read both reports in his chambers this summer despite OU’s objections, disagreed.
“The court has conducted its in-camera review of the reports. Collectively, the reports are comprised of confidential communications, summaries of witness interviews, the results of the investigations, legal analysis, opinions, advice and mental impressions conveyed to the university by its attorney, Jones Day,” Tupper wrote. “The reports contain confidential communications made for the purpose of facilitating the rendition of professional legal services to the university, and thus fall within the Oklahoma attorney-client privilege found in [Title 12, Section 2502]. Moreover, the reports relate specifically to legal advice or strategy sought by the university, and thus the privilege applies.”
As has always been its fate one way or another, this case is heading to appeal. Which panel of the Oklahoma Court of Civil Appeals it will go to — or whether it could head straight to the state Supreme Court — remains to be seen. This article will be updated with a link to the appellate case docket when it becomes available.
Why this case matters
It feels a little odd writing one’s own legal obituary — for now, anyway — but fewer newsrooms have the capacity to cover local courts these days. To that end, I am extremely appreciative of the journalists who covered this case’s hearings in 2024.
For those wondering why our news organization has been steadfast in its pursuit of the Jones Day reports, the answer is pretty simple: Each misconduct investigation goes directly to matters of critical public interest regarding the University of Oklahoma.
As Oklahomans wonder why OU does or does not take certain financial actions regarding tuition, employee compensation or, say, athletic programs, stakeholders deserve to know the extent to which Boren and his OU administration spent two decades lying about and intentionally misrepresenting university finances. The first Jones Day report apparently examines those deceitful actions and the potential culpability of OU leaders at the time — presumably including then-Boren legal counsel and current OU President Joe Harroz.
As students, parents and professors look for assurance that OU takes seriously its obligation to uphold Title IX protections against sexual misconduct on campus, the second Jones Day report’s inquiry into at least six people’s sexual misconduct accusations against Boren — one of the most powerful people in state history whom a prominent gay rights activist called “the queer version of Harvey Weinstein” — deserves some level of sunlight.
How did serial sexual misconduct at OU go undeterred for decades? How can people be sure similar conduct would be stopped in the future? And what are Oklahomans to make of a campus where Boren’s statue still looms over the North Oval? As to the dozens of spaces, items and awards named on campus for Boren and his spouse — such as the College of International Studies, a residence hall and much more — what has been the pecuniary value and fiscal impact to a public university from which Boren agreed to relinquish all affiliation as part of a secret settlement agreement to conclude the Jones Day investigations?
Those, of course, are questions for the public, the press and OU leaders. As an alumnus of the university where my parents both taught, I have not enjoyed asking about these issues for years, and I have hoped some level of clarity and finality can be provided by the release of even just the executive summaries of the formal documents possessed by OU.
For the appellate court awaiting our appeal of Tupper’s ruling, however, a different set of legal questions awaits. Subsequent briefs will argue the application of summary judgment at this stage of our litigation, and the judges will have to review what information has — and has not — been allowed onto the record in this case.
While the next stage of this legal process plays out, I appreciate the hard work being done by OU leaders and their governing Board of Regents to improve university finances and advance education and workforce opportunities in this state. I sit through hours of regent board meetings each year, and I know the challenges and opportunities facing our public university.
As I have maintained during the five years that have passed since Jones Day completed its investigations for OU, I look forward to helping the university turn the page beyond misconduct of the past. However, since those who do not learn from history are doomed to repeat it, the public has a right and a need to read the pages that brought us to this point.
Read the ruling from Judge Michael Tupper
