Judge allows Labrador to subpoena University of Phoenix in ongoing case on UI acquisition

BOISE -- A judge will allow Attorney General Raúl Labrador to subpoena the University of Phoenix for some documents and depose the university over narrow matters, according to a ruling made Thursday amid an ongoing legal battle over the Idaho State Board of Education’s decision to pursue the acquisition of the online school.

Ada County District Court Judge Jason Scott heard arguments Thursday over whether Labrador may seek additional information from the University of Phoenix (UoPx) and what the information may be. He made the decision, partially granting and partially denying the online institution’s motion to quash Labrador’s subpoena, from the bench immediately after arguments were made.

Labrador brought the lawsuit in June challenging the Idaho State Board of Education’s decision to allow the University of Idaho to move forward in an effort to purchase UoPx, arguing its closed-door meetings held before the public vote were in violation of the state’s Open Meetings Law.

Phoenix’s lawyers argued the information sought was overly broad, burdensome, and unnecessary to decide the case and that Labrador made the move in an attempt to delay the transaction.

“We’re losing, in my mind, the forest for the trees a bit,” University of Phoenix Attorney Benjamin Nielsen said to the judge. “The attorney general sued his own client for relying on the advice of his own deputy. He did so to kill a deal he doesn’t like.”

Deputy Attorney General Gregory Woodard disputed this claim that Labrador simply didn’t like the deal.

“Phoenix is really, they're acting as a gatekeeper here, they're deciding what they think is relevant and what is not,” Woodard said. "And that's not their right and it's not the standard."

A key component of the overall legal challenge is whether UI was in competition with another government entity when negotiations took place in a closed session.

Under the Open Meetings Law, closed executive sessions may be held to “consider preliminary negotiations involving matters of trade or commerce in which the governing body is in competition with governing bodies in other states or nations.”

Scott had previously ruled that the school board must show that members reasonably believed other governing bodies were in competition but it wasn’t necessary to demonstrate actual competition existed.

Similarly, he ruled Thursday that Labrador’s office may subpoena UoPx for documents showing communications with the University of Idaho indicating there was competition. He denied the office's request to seek documents proving actual competitors.

“Ultimately, the state of actual competition, if any, is not going to be a viable means of getting at whether their (the board members’) belief was or wasn’t reasonable,” Scott said. “That’s going to be assessed based on what information they had exactly and what the sources of it was.”

He also narrowed the scope of how the attorney general’s office could depose officials from UoPx, limiting it to asking about communications with UI regarding competition or potential competition.

The trial over whether the state board’s May 15 executive session violated the Open Meetings Law is currently scheduled for Jan. 22, but recent court filings indicate that the attorney general’s office may request to move back the date. Scott said a decision on this could be made next week.