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Monday July 22nd, 2019 5:48AM

Krakauer: Court ruling on privacy hurts right to know

By The Associated Press
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HELENA, Mont. (AP) — Author Jon Krakauer said he feels "a moral obligation" to fight a recent court ruling against him as he tries to obtain records detailing how the expulsion of a University of Montana quarterback over a rape allegation was overturned.

The author of "Into Thin Air" and "Into the Wild" said the decision by the Montana Supreme Court could hurt the public's ability to access government records, and he is considering whether to petition the U.S. Supreme Court to overturn last week's ruling.

In his first public comments on the decision, Krakauer told The Associated Press in a series of emails that he is speaking with his attorney about his options, which include asking the state court to reconsider or appealing to the U.S. Supreme Court.

"Both of us feel strongly that we should not throw in the towel," Krakauer said. "As we see it, we have a moral obligation to address what we believe is a significantly flawed decision that, if allowed to stand, is likely to have a very deleterious impact on right to know jurisprudence throughout the country."

Five years ago, Krakauer requested documents related to how the University of Montana and the state Office of the Commissioner of Higher Education handled the rape allegation made by a fellow student against starting quarterback Jordan Johnson in 2012.

Krakauer was writing the book "Missoula: Rape and the Justice System in a College Town" at the time.

Johnson was acquitted of the rape charge in court after going through the university's internal disciplinary process, where a recommendation to expel him was upheld by the university president.

Johnson appealed to Commissioner of Higher Education Clayton Christian, who oversees the state's university system. Johnson stayed enrolled in the university, but it was never clear what action Christian took or why.

The state Supreme Court ruled 4-3 that Johnson's privacy as a student outweighs the public's right to know what Christian did.

Students have an enhanced right to privacy compared to most other people under federal law, and Krakauer should have asked for more general information about sexual assault complaints that didn't name a specific student, Justice Laurie McKinnon wrote in the majority opinion.

The way the request was written left no option for turning over the documents without violating the student's right to privacy, McKinnon wrote.

Krakauer called the reasoning misguided. He said he wasn't seeking new information about Johnson and instead wanted details about what the commissioner did. That point was echoed by the three justices on the court who disagreed with the majority opinion.

"What the public has a constitutional right to know pertains to the commissioner's apparently unprecedented intervention in the university adjudication," Krakauer said.

His attorney, Mike Meloy, said he is concerned the court ruling gives government officials a solid basis for broadly denying access to decisions that involve students.

"Our (state) Supreme Court has consistently enforced the public's right to know. This ruling marks a significant departure from this tradition," Meloy said.

Johnson's attorney, David Paoli, said the court's decision "protected and solidified" two rights that Montanans hold precious — the right to privacy and the right to know.

He criticized Krakauer as an out-of-state writer who claims to be concerned about constitutional rights but is simply looking to make a profit from his books.

"He sought these records so he could make more money," Paoli said Tuesday. "He doesn't care at all about our right to know, much less our right to privacy. The Montana Supreme Court undertook difficult work in balancing these two important rights."

Vivian Hammill, an attorney for the state Office of the Commissioner of Higher Education, said Christian values the public's right to know, but the privacy requirements surrounding student records must be weighed carefully.

Lee Banville, a University of Montana journalism professor, said Montana is unlike most other states in that the Montana constitution enshrines citizens' right to understand how their government makes decisions.

Banville said the court ruling may erode that right for future public records requests.

"This decision, even in its best interpretation, gives government officials an argument for why they should say no," Banville said. "And that is worrisome."

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