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story.lead_photo.caption NWA Democrat-Gazette/JASON IVESTER FILE PHOTO Matthew Wendt, Fayetteville Public Schools superintendent, speaks Tuesday, March 14, 2017, at the administration building on an update on a Vandergriff Elementary School student's drowning.

FAYETTEVILLE -- The Northwest Arkansas Democrat-Gazette is asking Washington County Circuit Court to release records related to former School District Superintendent Mathew Wendt's firing.

The newspaper filed its motion to intervene in a lawsuit Thursday.

Legal lingo

Intervene

A civil law procedure where someone who is not part of a case can join the case to make sure his interests get fairly represented. When an outside party seeks to join a case via “intervention of right,” that person or party will have filed a motion with the court presenting sufficient evidence they have an interest in the issues involved, they risk some form of injustice if not joined to the case and that no one else already on the case can sufficiently represent their interests. When an outside party tries to join a case using the “permissive intervention” route, he may not have a direct interest in the case, but, he will be able to prove there is a particular question of law or statute that needs clarification or interpretation by the judge.

Source: Staff report

The lawsuit, filed earlier this month on behalf of "Jane Doe" in circuit court, contends if the records are released they would be an unwarranted invasion of her privacy. The lawsuit seeks an injunction preventing the School District from releasing the records.

"We haven't seen the documents yet, but if they formed the basis for the firing of the superintendent, the public ought to have access to them," said Rusty Turner, editor of the newspaper. "That's the best way for the voters to hold the elected members of the school board accountable."

The district will not release the requested documents until a judge directs them to, according to court filings.

The newspaper requested records related to Wendt's termination and, according to the lawsuit, other media outlets have also requested the documents. Specifically, the newspaper asked for material that formed the basis for the School Board's decision to suspend and fire Wendt.

The School District responded Monday, saying they believe most of the documents should be made public. The district said recent attorney general opinions appear to affirm that position.

The newspaper's motion says it has a right to the documents and parties to the lawsuit don't adequately represent the paper's interests.

"The Democrat-Gazette has a recognized interest in this litigation as it seeks public disclosure pursuant to the FOIA of the exact public records that plaintiff is asking this court to conceal," according to the motion. "The Democrat-Gazette's interest in disclosure and rights pursuant to the FOIA, as a practical matter, will be impaired by the disposition of this lawsuit, particularly if plaintiff prevails, the parties decide to settle the case, or if the court determines that information must be withheld pursuant to FOIA."

The motion contends the newspaper's interest isn't necessarily adverse to that of the School District because both generally think the records should be released, but the newspaper wants the documents released as quickly as possible while the School District wants to wait for a ruling. The paper also notes it can't say if it agrees with the School District about which records should be released or released with redactions because it hasn't seen the records.

"[Fayetteville Public Schools], who has a clear interest in complying with FOIA, is caught in the middle of what essentially is a dispute between plaintiff, who has a clear interest in preventing disclosure of public records, and the Democrat-Gazette, who has a clear interest in compelling disclosure of public record," according to the motion. "An additional consideration is that should plaintiff prevail in this matter, [Fayetteville Public Schools] has no obligation or incentive to appeal that ruling to an appellate court."

In a related filing, lawyers for "Jane Doe" asked Judge Doug Martin on Tuesday to place the documents under seal and close any hearings to the public in order to protect her privacy.

"Absent an order sealing the record, any records provided or arguments made to the court would be a matter of public record, which would effectively nullify any opportunity to protect the privacy of Jane Doe and for the court to provide the requested relief," according to the motion.

The School District responded Wednesday, saying it doesn't oppose filing the documents under seal so Martin can review them but it opposes closing hearings to the public.

"[Fayetteville Public Schools] objects to closing any hearing on this matter, however, and it believes such closure is inappropriate and unnecessary," according to the response. "[Fayetteville Public Schools] contends that counsel for the parties should discuss the records and make any legal arguments in an open hearing and that they can do so while still maintaining plaintiff's privacy."

The woman who said she was the target of sexual harassment by Wendt sued earlier this month to block release of related documents requested under the state's Freedom of Information Act, saying her personal privacy should outweigh the public's right to know.

"The records to be disclosed contain graphic text messages that are exceptionally personal in nature. Such information would subject the plaintiff and her family to embarrassment, harassment, and could impact her employment and relationships with friends," according to the woman's lawsuit.

Jane Doe's lawyer, attorney Suzanne Clark, filed a sexual harassment claim with the School District on March 14 and presented Chris Lawson, district general counsel, on March 15 with voice recordings of Wendt and copies of text messages between her client and Wendt that support her client's complaint, Clark said in a news release.

Clark filed a complaint May 25 with the Equal Employment Opportunity Commission against the School District and School Board. The complaint to the commission details Wendt's abusive conduct after the woman refused to continue to have sex with him, according to a news release by Clark on June 14.

The woman complained Wendt stalked her, sent her numerous text messages while she was at home and at work and told her she could be fired for her actions, according to the news release.

The School Board unanimously voted to terminate Wendt's contract June 18.

The board cited a breach of contract by violating district policy. Wendt violated the policy through his derogatory and offensive conduct and communication with a female subordinate employee, according to Susan Kendall, a lawyer with the Kendall Law Firm in Rogers and the School Board's legal counsel.

NW News on 07/27/2018

Print Headline: Newspaper seeks to intervene in Wendt FOIA dispute

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