HELENA — “Into the Wild” author Jon Krakauer has no legal right to ask a judge to release documents in the rape case against University of Montana quarterback Jordan Johnson because the writer is not a resident of the state, Montana higher education officials said Tuesday.
Attorneys for the commissioner of higher education included Krakauer’s lack of residency among their defenses in denying his public-records request for documents on how education officials handled a sexual assault complaint against Johnson.
The petition Krakauer filed in state court in February should be rejected in part because the Colorado resident has no standing to bring a right-to-know claim under the Montana Constitution and state statutes, higher education officials argued.
“Each state’s constitution applies to residents of that state,” Associate Commissioner of Higher Education Kevin McRae said Tuesday. “So Mr. Krakauer does not have Montana constitutional rights.”
Krakauer is writing a book that deals in part with the case against Johnson, who was acquitted in state court last year of raping a female acquaintance. The University of Montana had its own proceedings before that trial that resulted in an expulsion ruling, and Krakauer is seeking information about how the university court’s ruling was overturned.
Johnson was temporarily suspended from the football team then reinstated. He led the team to a 10-3 record last year.
Krakauer is asking a judge to order the release of records concerning any action Commissioner Clayton Christian took in July or August 2012 after the university court’s ruling.
McRae cited a 2013 U.S. Supreme Court decision that upheld Virginia’s freedom of information law, which specifically excludes out-of-state requesters from its rights to information.
Krakauer attorney Mike Meloy says the Montana Constitution does not limit rights to information to residents.
“The last I looked, the Montana Constitution said ‘a person,’ not a Montana person,” he said.
Higher education attorney Jessica Brubaker said state law specifies that “citizens” are entitled to inspect and copy public writings.
It is unclear whether the state will pursue its non-resident defense as the case progresses, but attorneys want to keep the option open, Brubaker said.
Mainly, the state can’t release documents unless a student gives written permission, Brubaker said. The state can’t acknowledge that documents exist without that permission, she said.
State law says a court can order the release of those student records, and Krakauer argues there is no reason to keep the documents secret after other records from Johnson’s case were released.