Two reports into serial financial and sexual misconduct allegations at the University of Oklahoma are privileged as a matter of law, Cleveland County District Judge Michael Tupper ruled Dec. 20.

In his 30-page order granting OU’s motion for summary judgment in the Open Records Act litigation brought by NonDoc Media and me, Tupper said OU “properly exercised its statutory discretion in withholding” the two reports prepared by Jones Day, an international law firm the university paid more than $1 million to investigate decades of donor data misreporting and sexual misconduct allegations against former OU President David Boren.

“Attorney-client privilege applies to the Jones Day reports. The informer privilege applies to the sexual misconduct report. The university has not waived its privileges. The sexual misconduct report is protected work-product,” Tupper wrote in his conclusion. “The witnesses have a constitutionally protected right to privacy in the reports.”

Tupper’s decision comes more than three years after NonDoc and I filed a lawsuit alleging OU’s refusal to release the investigative reports violates the Oklahoma Open Records Act. We argue none of OU’s claimed ORA exemptions are applicable to the facts surrounding the reports, several of which remain in dispute.

Tupper, who privately read both reports in his chambers this summer despite OU’s objections, disagreed.

“The court has conducted its in-camera review of the reports. Collectively, the reports are comprised of confidential communications, summaries of witness interviews, the results of the investigations, legal analysis, opinions, advice and mental impressions conveyed to the university by its attorney, Jones Day,” Tupper wrote. “The reports contain confidential communications made for the purpose of facilitating the rendition of professional legal services to the university, and thus fall within the Oklahoma attorney-client privilege found in 12, Section 2502]. Moreover, the reports relate specifically to legal advice or strategy sought by the university, and thus the privilege applies.”

As has always been its fate one way or another, this case is heading to appeal. Which panel of the Oklahoma Court of Civil Appeals it will go to — or whether it could head straight to the state Supreme Court — remains to be seen. This article will be updated with a link to the appellate case docket when it becomes available.