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Protests

A lone police officer stands outside as protesters gathered across from the Phi Gamma Delta fraternity house last year.

A public-records fight between the University of Nebraska-Lincoln and a suspended fraternity seeking information on investigations into alleged wrongdoing by members landed in front of a Lincoln judge Wednesday.

Lancaster County District Judge John Colborn eventually will decide whether the university should be forced to turn over any of the 1,661 records withheld from Phi Gamma Delta or anything within them.

Brian Brislen, an attorney for FIJI, as the fraternity is best known, argued that blanket denials by UNL attorneys — who said some of the documents were confidential because they were part of Title IX investigations — went too far.

"We're only here as a second step, because in our view, the university didn't appropriately exercise its redaction capabilities," he told the judge.

UNL's records director, Erin Bush, said she turned over some records the fraternity sought, but withheld 1,661 others, the vast majority under a provision in state public-records law allowing "records developed or received by law enforcement agencies and other public bodies charged with duties of investigation" to be exempted from public searches.

Some of the withheld documents included Title IX investigations, which she said are exempt from disclosure whether open or closed, to protect the accusers and the accused.

FIJI had five such investigations since 2015.

Bush said she withheld other documents sought by the fraternity based on attorney-client privilege or because they contained information that would have identified students or university employees.

The chilling effect on future reports would be large, she said, if the records were released.

Brislen said part of the problem was that Bush didn't take into account whether an investigation was closed or correlate specific records denied with a reason, as state law requires.

And he took issue with the university attorney's objection under attorney-client privilege to Bush testifying about how she determined documents should be withheld.

"We just have to accept their word for it without any information about what went into that, none at all?" Brislen asked.

Omaha attorney Mark Laughlin countered that the Legislature had weighed the public's right to know "with the reality of it."

"We can't have people — and not just the university, DHHS, the governor's office, everybody — we can't require people to sit down and have four Fraser Stryker associates go through and create logs every time there's a public-records request," he said.

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Laughlin said Bush's denial letter was sufficient under the law, even longer than some denials by the Nebraska Attorney General's Office.

"All these documents are protected," he said.

As for whether records could be redacted, Laughlin told the judge, he hopes he doesn't get to the point he thinks that's necessary. But if he does, the law is the law, he said.

Colborn took the case under advisement.

FIJI was suspended in March 2017, two months after UNL opened a Title IX investigation after participants of the Women's March said fraternity members made sexually harassing comments to them as they passed.

Fraternity members denied it. But separate investigations of members led to the discovery of "reckless alcohol use, hazing and inappropriate sexually based behavior" at the fraternity, the university said.

FIJI won't be eligible for reinstatement until 2020.

Reach the writer at 402-473-7237 or lpilger@journalstar.com.

On Twitter @LJSpilger.

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Reporter

Lori Pilger is a public safety reporter.

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