Friday, August 4, 2017

Ole Miss surrenders on fees to Nutt

A battle royale has raged over the phone records of Hugh Freeze although it hasn't taken place in a steel cage nor will the loser have to leave town.  Ole Miss tried to charge former Head Football Coach Houston Nutt $25,100 for a copy of  former Head Football Coach Hugh Freeze's phone records.  Ole Miss backed down this week and "waived" the fee.  However, it seems that the phone didn't belong to the university but was the property of the Ole Miss Athletic Foundation. Ole Miss told the Houston Nutt team:

 First, cell phones used by athletics personnel, including Hugh Freeze, are provided by the Ole Miss Athletics Foundation rather than by the University. As discussed on our call, Mississippi law prohibits personal use of state-issued cell phones and requires elaborate and time-consuming reconciliation of all activities on state cell phones. As a result, very few University employees use state-issued phones. This has been the case for about ten years. In Athletics, however, we must monitor business-related phone calls. To ensure compliance with both state laws regarding cell phones and NCAA rules, the Ole Miss Athletics Foundation supplies telephones for use by athletics staff and provides the University detailed usage information designed to meet our compliance needs. Under these circumstances, the records related to Hugh Freeze's business use of any cell phone (use in the conduct, transaction or performance of any business, transaction, work, duty or function of UM) are considered public records and will be released. Any personal calls having no relation to UM business are not public records. Personal calls will be clearly marked and redacted from the documents released.
Second, we have estimated that it will cost more than $20,000 to review all of Hugh Freeze's cell records to redact student numbers as required by student privacy laws (FERPA). This estimate is based upon the actual cost our outside law firm provided the University for this review (based on a rate of nearly three calls per minute). But we have concluded it is not fair or equitable to pass along this cost to you or any other single requester. As a result, the University has undertaken this review at its own expense. We are in the process of compiling the necessary information to develop a protocol to electronically search for and redact phones numbers associated with current and former students. We anticipate the process to compile and electronically review the information will take fourteen (14) days.

 It is understandable why the athletic department went this route instead of issuing cellphones to its employees. 
Mississippi public records laws forbid the use of state-issued cellphones for personal business.  There is  also the matter of the public nature of a government-issued cellphone.  What would stop a Southern Miss booster from filing a public records request for Coach Mullen's phone number and phone logs?  Nice way to see which recruits are in contact with the coach.   Imagine the fun the frat boys could have once they got the number.  Tim Tebow, anyone? How long would it be until those phone logs appeared on message boards? However, there is no way to verify that the "review" is not a scrub of anything damaging to the program or the coach.   We just have to take the word of the employee and his lawyer that they are telling the truth about what they redacted.  Trust but verify, indeed. 

Meanwhile, the court stayed all proceedings on the case while it entertains arguments on a motion to dismiss submitted by Ole Miss.

Kingfish note: Ole Miss will appear before the COI on September 11.  


Anonymous said...

There is smoke, there is a fire but TSUN is not going to let Nutt see the flame. But they've seen it, and they know, and Bjork should be sent packing.

Anonymous said...

My family as far back as the 1920's has been part of the ole miss family. I have to say to the chancellor and athletic director that we are completely embarrassed by your leadership in this quagmire along with other recent events. You have lied about everything so far to try to cover your rear ends! The only thing you have done is piss off the NCAA more and embarrass the university nationally. Everywhere I go I am reminded of the current situation that happened under YOUR leadership.

Anonymous said...

Glad to see that we can get back to real news.

Anonymous said...

So it's not open for public inspection, but what is to keep this from being a part of Nutt's discovery request?

Anonymous said...

And if Ole Miss does redact numbers other than (ex) students', and this is discovered, here we are again with an obstruction charge. There is one chance to get this right.

Pappy Odaniel said...

So basically, we don't like complying with public records laws so we placed all of our phones in the foundation to avoid the oh so burdensome task of complying with state law...nothing to see here, move along

Anonymous said...

The FERPA rights of a student begin the first day of class for the student's initial term of attendance, so that suggests prospects are not protected under FERPA if they never enrolled at that institution.

It is up to each college and university to establish what is considered "Directory Information." Telephone numbers may be included in "Directory Information." Based on Jolly's letter, it sounds like Ole Miss does not include telephone numbers in "Directory Information."

The NCAA requires student-athletes to complete a consent form, a FERPA waiver, that states the student-athletes agree to disclose educational records to the NCAA that are covered by FERPA. When you see Player X's GPA splashed across the TV screen, he signed a FERPA waiver.

Since FERPA only applies to educational agencies or institutions, the NCAA is not bound by it since they are a membership organization for intercollegiate athletics, yet they abide by the law as a matter of practice.

Anonymous said...

The Berlin Wall took quite some time to knock down, too.

Kernel Reb said...

If the phones are not supplied by the university, how were they able to get Freeze's phone records to discover the infamous "pattern of conduct?" You can't have it both ways.

Anonymous said...

KF, you are an expert on this stuff; but aren't his records subject to an information request no mattter whether the University/State, a private foundation, or he personally pays the bill? Isn't that what the Ethics Comm. had ruled a few years ago?

Also, this tells me that Ole Miss is confident about what the records will show. Also, makes you wonder if they didn't "miss" that redaction in the previous request.

Whack-a-mole said...

No expert, but this seems to be the way this shakes down:

@2:33 yes, they're still subject to a PR request. But since a "private corporation" paid for it, the phone isn't subject the the "no personal calls" rule. So, Freeze (or someone) has the right to go through and redact personal calls that have nothing to do with UM. Calls to family etc.

The university also monitors the calls and knows what's in them as the AF foundation provides that documentation. Two important things to remember here1) as soon as they handed them over to Mars, the phone logs de facto bacame public records 2) since the university is investigating them, they are public records--with the assumed exception of personal calls since the AF is paying for them.

3 things I would want since this seems to be the general scenario; 1) invoices from the AF to prove that they were indeed paying for his
cell phone and not the Uni. 2) a clear, and not broad, definition of what is deemed personal by them and what is not. 3) a court order of from the service provider for phone logs for comparison on what the university actually hands over.

Anonymous said...

The phone is used for official state work...the money is therefore co-mingled with state assets and the entirety of the phone records should be available for public view. It does not matter that the foundation paid for the phone. To the contrary, if Freeze had gone to C-Spire and set up his own plan that he paid for out of his own pocket, the arguably the personal calls could be redacted...but not necessarily calls made while in the course and scope of work.

Point being, all of these calls will likely have to be released. Ole Miss now knows that the COI meets 9/11/17. They are required to render their decision within 8 weeks of that meeting. If OM can drag this out until the day after the infractions are released and the investigation is effectively closed, then it may not matter what is in the phone records as it is unlikely the NCAA will come back immediately after this case is "completed" by the COI.

I think Ole Miss has effectively circled the wagons on this front, along with the stay in the law suit.

The next issue is the COI Hearing itself. If they make an effective showing, they might just skate by without much more in the way of penalties. The biggest issue is avoiding the addition of another year bowl ban (allowing players to transfer without penalty). If they can do that, they have hit bottom and are on their way back up.

Anonymous said...

If we don't hurry up, we will drag this thing through our self imposed sanctions timeline. It appears the NCAA isn't announcing until this is cleared up. At that point in time, they no doubt will impose sanctions, but they can't coincide with our own sanctions because they would have at least partially expired. Let's get this over with. Of course our attorneys are dragging this out because they are still getting paid through the end.

Anonymous said...

From the previous evidence it seems that Freeze has already been surrendering fees to nutt.

Anonymous said...


Winner of the Internet for a week

Anonymous said...

3:31, you make a good case but I question your assumption that the NCAA will shut this down after the COI if it is learned that there are more calls AND that they involved recruits, rather than personal interests. And if it is after the November imposition of sanctions that they learn about those calls rather than before the COI, they will really be pissed about opening another investigation.

Considering that the only thing that can hurt OM with a disclosure of the phone logs,assuming that they don't show an NCAA violation, is dollars - it would appear to an outsider that it would be in their best interest to move this along now. Might cost them a few more dollars to Nutt, but they have already wasted several million on him - whats a few more? But if these logs are going to be of interest to the NCAA, there ain't no damn good time for them to come out - now, 9/10, 9/11 or after they lose their last three games following the sanctions announcement.

Anonymous said...

Sure was nice of OM to drop this fee and objections. After trying to cop out of releasing the records by claiming that they were the Foundations, not theirs, and therefore were not subject to a FOIA.

IF they had stuck with that story, Freeze would suddenly become an adversary - fired because OM released something that didn't belong to them? Fired, humiliated, emotional stress (I'm sure at home if not elsewhere as well). All because OM released the records that didn't belong to them and that they had no control over.

Good call, attorneys. Eat this fee, release the records. Cheaper to pay Nutt.

Anonymous said...

Ole miss lied about the NCAA investigations from the get go to their own fan base.
Ole miss has lost all credibility just with what the general public has seen.
BECAUSE this is all about football & sports with drunk alumni running the show from behind the scenes, the wrong decisions will seemingly always be made about continuing forward as per restructuring and regrouping.

Ole Miss pissed off the wrong people and attorney's by trying to treat them the way they do the rest of us on a public trust issue. For some reason, the hookers and Hugh thing isn't a criminal investigation (that we know of--and it should be.) The only thing we can be sure of is doubt. One big giant cloud of doubt. And well, that's no good for anyone, including current students and alumni.

Turkey With Dressing said...

Since when is it illegal to call a whore in another state and invite her for Thanksgiving dinner? Especially if you also ask her to say the prayer.

Anonymous said...

Thanks Archie!

Anonymous said...

The UM attorney is completely disingenuous. He dons the veil of sanctimony in claiming the need to "redact student numbers as required by student privacy laws (FERPA)." Yet where was this concern for protecting the student privacy when the identity of Leo Lewis and Kobe Jones was leaked by the University?

Anonymous said...

It will be interesting to see if the FERPA argument holds up. There may be a question as to whether a phone call was made to a number belonging to a student is in fact a student record subject to FERPA. Other than the phone number the record has no content. Some information, such as information contained in a published student directory, like phone numbers and addresses, is not subject to FERPA privacy. Unless the student opted out of publishing directory information, that information is not covered. Emails to a student by school personnel are covered by FERPA. But whether just reporting that a student phone number was called or a call was received from a student phone number, does not seem to automatically make the existence of the call itself a student record. And Mars can make a case that the numbers would lead to relevant information for the suit, FERPA may not apply a blanket protection from disclosure. FERPA records are generally given a broad application, but it isn't a slam dunk for Ole Miss on this,

Anonymous said...

If and when Mars files a discovery request for the phone records, the Freeze "private call" argument goes out the window. There is no right to protect "private calls" from discovery, even if the calls were on a private phone, not subject to a public records request.

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