Court Rules in UNC Football Public Records Dispute

by Brooks Pierce

North Carolina Superior Court Judge Howard Manning recently ruled on the scope of protection for documents related to the highly-publicized investigation of irregularities in the University of North Carolina football program. The Court held that the majority of communications among attorneys are protected from disclosure, but that other categories of investigative documents must be disclosed as public records of a public agency. The Court also ruled that portions of former UNC football coach Butch Davis’ personal cell phone records must be disclosed. The Court's rulings are available here and here, and a discussion of a subsequent order entered by the Court is linked here.


As a general matter, the University must disclose its records as a state agency under North Carolina’s public records laws. The dispute in this case hinged on the applicability of certain exemptions from the public records laws for attorney-client privilege or protection arising from the federal law. For example, North Carolina law exempts attorney-client privileged communications and trial preparation materials from disclosure as public records. And as a matter of federal law, the Family Educational Rights and Privacy Act (FERPA) protects most student records from disclosure as public records. In this case, the parties disputed what documents related to the UNC football investigation would fall within these exemptions.

Here, the plaintiffs (media outlets including newspapers and broadcasters) sought disclosure of several categories of documents from the University in connection with the NCAA investigation into irregularities within the UNC football program. The categories included personal and business phone records, investigative documents, and information about mentors and tutors to the athletes. Ultimately, the Court allowed the production of many of these documents as public records, with a few important exceptions.

At earlier stages of the case, the Court determined that many documents are not protected by FERPA and are subject to disclosure under the public records laws. For example, the Court ruled that unredacted phone numbers on telephone bills for coaches’ cell phones provided by UNC—including phone numbers of UNC students—are not protected by FERPA and are a public record. The Court also ruled that parking tickets issued to 11 UNC football players are not education records and are not protected by FERPA. The University was required to produce those documents.

The Court’s earlier rulings also distinguished records (e.g., names, employment dates, and salaries) of tutors and mentors for UNC athletes based on whether the tutors and mentors were students themselves. Non-student tutors were treated by the Court as University personnel, and those records are not protected by FERPA. In contrast, active UNC students and graduate students that were employed as tutors or mentors for athletes are protected by FERPA. The University was not required to disclose the requested information about UNC student tutors and mentors.

Disclosure of Personal Phone Records

In perhaps the most anticipated portion of the case, the Court ruled that former UNC football coach Butch Davis was a public official and ordered him to disclose portions of his personal cell phone records. On August 22, 2012, Judge Manning signed an order requiring Davis to produce his personal cell phone records within 30 days. The order permits personal calls to be redacted from the records, but he ruled that information regarding University-related calls is a public record.

Judge Manning took care in his ruling to limit the protection for personal cell phones belonging to public officials. He observed that public officials “may not avoid public scrutiny. . . by using personal cell phones to conduct public business."

Disclosure of NCAA Materials

In a separate decision, Judge Manning determined the scope of protection for investigative and legal documents regarding the NCAA investigation into misconduct by UNC football coaches, players, agents, boosters, and tutors. The two primary categories of documents were (1) communications between UNC and its attorneys that may be privileged, and (2) documents submitted to NCAA in connection with its investigation.

Protected Communications and Preparation

In the first category of investigative documents, the Court ruled that certain broad categories of communications were protected from disclosure by attorney-client privilege, and that materials prepared in connection with the investigation were also protected from disclosure.

Under North Carolina public records law, written communications to a state agency are exempted from mandatory disclosure if they are:

made within the scope of the attorney-client relationship by any attorney-at-law serving such governmental body, concerning any claim against or on behalf of the governmental body or governmental entity for which the body acts, or concerning the prosecution, defense, settlement or litigation of any judicial action, or any administrative or other type of proceeding to which the governmental body is a party or by which it is or may be directly affected.

N.C. Gen. Stat. § 132-1.1(a). The law also exempts from disclosure “trial preparation material” that meets the following definition:

Any record, wherever located and in whatever form, that is trial preparation material within the meaning of [the North Carolina Rules of Civil Procedure], any comparable material prepared for any other legal proceeding, and any comparable material exchanged pursuant to a joint defense, joint prosecution, or joint interest agreement in connection with any pending or anticipated legal proceeding.

N.C. Gen. Stat. § 132.9.9(h)(2).

Here the Court concluded that the NCAA investigation was an administrative proceeding within the meaning of the North Carolina statutes, so attorney-client communications and trial preparation materials related to the investigation would be protected. Thus, communications from in-house UNC counsel, corporate counsel, or an outside law firm to the University are not public records and are exempt from disclosure. Similarly, communications from in-house UNC counsel to outside counsel are privileged and are exempt from disclosure. Communications prepared by UNC staff at the direction of in-house or outside counsel for submission to in-house or outside counsel in connection with the investigation are “trial preparation” materials and also exempt from disclosure. As a result of the Court’s findings, copies of recordings of interviews prepared in connection with the investigation will not be required to be disclosed.

Disclosure of Documents Submitted To The NCAA

Next, the Court considered whether documents submitted by the University to the NCAA in response to its investigation were protected from disclosure. The parties agreed that student-athlete information relating to academics are protected by FERPA and would not be disclosed. The parties disputed disclosure of information relating to the NCAA investigation into impermissible benefits to student athletes such as plane tickets, jewelry, clothing, shoes, automobiles, payments to cover parking tickets, monetary gifts, free meals, and so on.

The Court determined that such benefits are not academic and fall outside the scope of FERPA. Thus, the Court ruled that documents relating to investigations into impermissible benefits only (and not academic conduct) must be disclosed. This category of documents includes statements of fact submitted by UNC to the NCAA in the course of an investigation, reinstatement requests on behalf of a particular athlete submitted by UNC to the NCAA, and similar documents relating to a player subjected to penalties or sanctions by the NCAA for non-academic misconduct.

Importantly, the University does not have to disclose the materials unless the investigation resulted in penalties or sanctions. Documents relating to an investigation that did not result in the player being declared ineligible or subjected to other sanctions by the NCAA for an impermissible benefits rules violation are not required to be disclosed.

Judge Manning was careful to emphasize that “information relating to truly academic issues pertaining to student-athlete academic misbehavior. . . is protected from disclosure by FERPA.” So, documents relating to investigations on the basis of academic performance issues such as low GPA, academic courses, etc., are protected by FERPA as academic records and are not required to be disclosed.

On a related issue, the Court also determined the scope of protection for the University’s formal response to the NCAA (a large document dated September 29, 2011, with exhibits). The University previously released a heavily redacted version of the response. Judge Manning ruled that redactions in the public version of the document were appropriate to protect employees and academic student records. However, portions of the response relating to impermissible benefit violations resulting in sanctions and ineligibility are not protected and must be disclosed in unredacted form. In the Court’s words, “the cloak of secrecy must be lifted and the sun let in for all to see.”

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Brooks Pierce | Attorney Advertising

Written by:

Brooks Pierce

Brooks Pierce on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.