An outside prosecutor will look into an alleged pattern of withholding of public records by Texas Tech University, at the behest of the Texas Attorney General’s Office.
The move comes after media consultant Wayne Dolcefino, representing former Tech football coach Mike Leach, filed a criminal complaint with the Lubbock County district attorney’s office in January.
Dolcefino, a former Houston broadcast journalist, has been fighting the university for records since 2017. It’s all part of Leach’s battle against Tech that started when the university fired him in 2009 over the handling of an injured player. He sued Tech for wrongful termination, seeking $2.4 million in back pay, but lost in 2012.
In an interview with The Texas Monitor, Dolcefino said that Tech has tried to discourage him by charging outrageous amounts for records searches that could have been done very simply, by withholding records on technicalities, and possibly by destroying records.
In court filings, lawyers for Tech insisted that the university had complied with the law and that several times, when it presented Dolcefino with a cost estimate, he failed to respond within the legally required time frame, prompting the university to treat the request as having been withdrawn.
A school spokesman declined to comment for this story.
The need for a special prosecutor developed when Lubbock County District Attorney Sunshine Stanek declined to investigate Dolcefino’s criminal complaint, citing a conflict of interest. She did not disclose the specific conflict, but she, along with her two top ranking deputies, are graduates of the Texas Tech University School of Law.
Stanek declined an interview request.
Leach was fired over his handling of a player, Adam James, who had suffered a concussion. Tech claimed Leach violated medical procedures in the case. Leach insists the allegations were false and that he treated James appropriately.
After Leach’s case against the university failed, he hired Dolcefino in 2017 to investigate his case. Dolcefino began filing records requests with Tech for things like emails, phone records for trustees and administrators, personnel files and financial reports. Over the years, he filed more than 50 requests under the state’s open records law.
Tech responded by asking for thousands of dollars to research phone records and emails, insisting in one case it would take employees over 600 hours to redact private information before providing the documents.
Government agencies, like most individuals, have keyword search functions for email systems that can pull pertinent communications in seconds.
Court records and emails show the university at times delayed or withheld records from Dolcefino based on the wording of requests rather than the intent. Tech officials refused to give him an investigative report because they said it wasn’t complete. But later, in court documents, they acknowledged that the “last working draft” had eventually been released to Dolcefino.
In another request, Dolcefino sought documents from a computer file referred to in an internal email he obtained. The documents, he was told, no longer existed, which he said suggests that the university destroyed records related to an active case.
“The file path you have referenced in your request no longer exists, thus we have nothing responsive to your request,” Tech general counsel Ronny Wall wrote Dolcefino in response.
Dolcefino’s complaint alleges Wall destroyed public records.
Wall, who has argued public records disputes for years for Tech, declined an interview request.
“They are game-playing here,” said Joe Larsen, a Houston-based public records attorney and board member of the Freedom of Information Foundation of Texas. “It’s so easy to say, for example, that an investigatory report is not final. The law requires a government body to release a report that is being used.”
Charges for phone and email records that appear to be disproportionate can also be red flags.
And, Larsen said, “It’s a violation of the law to use a price quote to discourage a requestor.”
In 2018, Dolcefino went to court, asking for a writ of mandamus to force the university to produce the disputed records. A district judge ordered Tech to produce some of the records, but the university appealed. A panel of three appellate judges – two of them Tech law school grads – sent the case back to the district court, where the case is still awaiting a final ruling.
In a court filing in that case, Tech argued that most of the information sought by Dolcefino was disclosed in Leach’s wrongful termination lawsuit. Tech won that case by asserting sovereign immunity, a legal concept that protects government entities from claims to monetary damages.
Dolcefino’s records requests, Tech lawyers said, were an extension of that case.
In about half of Dolcefino’s 50-plus requests, the university appealed the requests to the attorney general’s office, a frequently used tactic by government bodies and one that delays the process. In at least four instances, the AG ruled in favor of Tech, in some cases finding that the requested documents were covered by Tech’s attorney-client privilege
“Texas Tech has been the poster child for bad actors with regard to public information laws,” Dolcefino said. “All we want is for an authority to tell them to stop playing games and stop withholding public records.”
One of the documents Tech did release relates to a records fight from 2011, one that the university lost.
The spreadsheet in question related to a $25 million parking garage next to Tech’s football stadium. The garage was built by a company controlled by a group of Tech alumni and leased to the university.
The student newspaper fought for and got records showing what it claimed were cozy arrangements between the developers, the university’s alumni board and the Tech athletic booster club. The story also predicted that the school would lose hundreds of thousands of dollars on the deal, which has proved to be true.
Steve Miller can be reached at [email protected].