The Arizona Board of Regents Get an F in FOIA Law

My home institution is undergoing a presidential search right now. Today, I heard a puzzling story during the local segment of my NPR station:

The 27-person presidential search committee has interviewed prospective candidates for president of the University of Arizona, and it has sent the Arizona Board of Regents a short list of names for consideration.

The names and number on the list are not being made public, said regent Bill Ridenour, who chairs the search committee.

“We certainly don’t want to put out the names because they are only prospects,” Ridenour said. “They may choose not to go in with the process.”

What’s puzzling about this is that Arizona Supreme Court precedent has defined what it means to be a confidential “prospect” for a university presidential search, and Bill Ridenour’s use of that term is clearly wrong. Here are the words of the 1991 Arizona Supreme Court decision in Board of Regents v. Phoenix Newspapers:

A prospect is a person in the initial large group that the Committee and HSI considers. A candidate is one who is seriously being considered, and is interviewed, for the position. The prospect may not know that he or she has been nominated, may not wish to be, and may find it embarrassing and harmful to his or her career. A candidate, on the other hand, may actively seek the office. Finalists are those persons actually submitted to the Board for selection.

The opinion goes on to reiterate that prospects who are interviewed for the job are candidates, and that the names of all candidates must be released to the public.

Candidates are prospects who are seriously considered, and who are interviewed for the job. As is the case in many hiring efforts, be it university president, football coach, or chief executive officer of a large business, those interested will already know who is being considered for the job. This, and the fact that the final candidates have an express desire for the job, should militate against maintaining confidentiality. Candidates who actively seek a job run the risk of their desire becoming public knowledge. Because they are candidates, they must expect that the public will, and should, know they are being considered. The public’s legitimate interest in knowing which candidates are being considered for the job therefore outweighs the ‘countervailing interests of confidentiality, privacy [and] the best interests of the state….’

The court went on to conclude that all 17 of the prospects who were interviewed for the position of ASU’s president were “candidates” whose name had to be made public.

I understand the drawbacks of making the names of candidates public, but at the same time, the public’s interest in knowing the pool of serious contenders is great. In addition to the general curiosity about whether the search committee is cultivating a strong pool and using the right factors for its decision-making, Arizona residents also have an interest in making sure that the search committee is complying with anti-discrimination restrictions. A glimpse at the candidate pool allows the public to assess whether the pool is being winnowed in a way consistent with state and federal law.

Bill Ridenour carefully describes the short list of candidates that was sent to the Board of Regents as “prospects.” I suspect he is relying on this language at the very end of the 1991 case about Board-adopted rules:

We note that it might be helpful to the court, the Board, and candidates, if the Board adopted rules of procedure for nominating university presidents. The adoption of rules could avoid a recurrence of future litigation. These rules could indicate when a prospect becomes a candidate and when confidentiality ends.

But I have serious doubts that this language at the end of the opinion was left as an invitation for the Board of Regents to re-define the meaning of a presidential search “candidate” in a way that contradicts the language and the reasoning of the case.

Reasonable minds may disagree about the wisdom of the Arizona public records laws, but I would hope we do not disagree about the importance of following established law, even when we disagree with it. Particularly on this day, when the U.S. president’s press corps has blocked the New York Times, CNN, and other major news groups from its press briefings, I am disappointed that my home institution is taking a cavalier attitude toward transparency obligations and choosing to err on the side of secrecy.

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