BOBBY PETRINO LEARNS ABOUT FOIA THE HARD WAY
State Employees Learn the Hard Way about FOIA Requests; Just ask ex-Arkansas Razorback Football Coach Bobby Petrino
It started as just another Sunday afternoon in the bucolic foothills of the Ozark Mountains for the revered Coach Bobby Petrino. Still basking in the after-glow of his team’s successful 11 win season which culminated in a Cotton Bowl victory, Coach Petrino headed to his on-campus office on his beloved Harley-Davidson. After a team meeting with players and coaches, he mounted his bike again and headed out for a nice ride, not unlike he would frequently take on those pleasant spring afternoons in northwest Arkansas. Sounds innocuous, right? It wasn’t.
As the world now knows, at some point that afternoon, Coach Petrino lost control of his bike on a rural highway and suffered some relatively serious structural injuries (though it could have been much worse) to his back and some cosmetic injuries to his head and face. Given the stature of Coach Petrino in Arkansas, the wreck was briefly a front-page story on ESPN and other national news organizations. But, in essence, it was just another motorcycle accident. Big deal, right? It was page 2 news the next day and back page news the day after.
Then, Coach Petrino, after being discharged from the hospital a few days later, inexplicably stepped in front of a microphone at a press conference called at his behest and uttered the words that have forever changed his life – “well, when I came out of the ditch there was a lady there that had flagged down a car.” Umm, excuse me, Coach, did you say there was a lady there? A lady just happened to be strolling down a country highway and happened upon the aftermath of your crash? And with that, the hounds were unleashed.
Indeed, in a very weak attempt to stay ahead of the storm that was brewing in the Ozarks, Coach Petrino dialed up Arkansas Athletic Director Jeff Long just twenty minutes before his personal security guard leaked to him that the Arkansas State Police was about to publish the official police report in connection with his motorcycle accident. We don’t have a transcript of Petrino’s conversation with Long, but we do know that Petrino told Long that the report was going to reflect that the “lady” to which he vaguely referenced at his self-serving press conference was a passenger named Jessica Dorrell. Say what? Who? Jessica Dorrell, the brand new (she was personally hired by Coach Petrino just 3 days prior to the accident) attractive “assistant” to Coach Petrino. Did I mention that she was engaged to be married in June to another Razorback athletic department employee? On the surface, there would not appear to be a legitimate reason for Ms. Dorrell to be latched on to the back of Coach Petrino’s motorcycle for a joy-ride in Washington County, Ark.
But the “hounds” I mentioned above were not content to rely on the obvious nefarious inferences to be drawn from the tale spun by Coach Petrino. Instead, various individuals and news organizations initiated a FOIA (Freedom of Information Act) request. The FOIA was enacted by Congress in 1966 and adopted by most states, including Arkansas, in 1967. Incidentally, the Texas FOIA is virtually identical to the Arkansas FOIA. In pertinent part, the Arkansas Act provides that the business of public officials must be performed in an open and public manner so that the constituents are properly advised of the performance of public officials and in the processes leading to public policy.
Congress didn’t likely intend for the Act to create a mechanism for a fishing expedition for incriminating or embarrassing records, but, in any event, the general rule is that anyone can request to see the “public records” (which is very broadly defined by the Act) of public employees/officials. Accordingly, an FOIA request can compel a public institution like the University of Arkansas to release all manner of otherwise private information about a university employee.
In fact, there are criminal penalties for a government agency’s failure to properly respond to an FOIA request. In Petrino’s case, the University was forced to parse and produce the phone records from Coach Petrino’s state-issued cellular telephone. After the provision of the records to the public domain, we now know that Coach Petrino authored some 4,000+ text messages to Jessica Dorrell dating back to September 1, 2011. On some days, he sent as many as 70 texts to Ms. Dorrell. There wasn’t a national news organization in America who didn’t report the result of the FOIA request. The irony is palpable given that Coach Petrino, a husband and devoted father of four children, is known to be fiercely private.
Coach Petrino has now confessed his infidelity. And while it was the fateful decision to take Ms. Dorrell for a ride which sparked the ensuing firestorm, it is inarguable that the FOIA request was the proverbial nail in the coffin of the career of Bobby Petrino. Athletic Director Long was left with the Hobbesian choice, on the one hand, of keeping Coach Petrino and absorbing the deserved media criticism and damage to the University’s reputation, or, on the other hand, terminating Coach Petrino for cause and casting the state’s beloved Razorback football program into a state of disarray. Petrino’s reckless and ill-advised conduct has cost him dearly. A lost career, tens of millions of dollars, and, perhaps worst of all, the lost respect of his family.
So, if you are employed by a state or federal government agency or institution, beware of the FOIA and be advised that the emails you send on your work computer or the text messages you send from your employer-provided phone might as well be addressed to Reuters or the Associated Press.
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