Judge denies Krakauer’s request for attorney fees in Montana University System case

A District Court judge in Montana has denied author Jon Krakauer’s request for attorney fees and costs stemming from his successful legal push to review records related to a disciplinary case involving a former University of Montana student.

In requesting attorney fees, Krakauer – author of “Missoula: Rape and the Justice System in a College Town” – pointed to a recent Supreme Court decision suggesting “there must be some well-articulated rationale for denying fees to a prevailing party in a right-to-know case.”

Krakauer fought and won the right to review redacted records relating the 2012 disciplinary case of a former university student and athlete.

But while the court agreed that citizens who are compelled to litigate to protect a fundamental right deserve their attorney fees and costs, that rationale doesn’t always hold true, particularly when another right is at stake.

The court found that the Commissioner of Higher Education challenged Krakauer’s right-to know in an effort to protect a separate fundamental right – that being a student’s protection of privacy.

“It would be inequitable to award attorney fees when, as here, the Commissioner believed releasing the documents would violate the expectation of privacy of its students and run afoul of the Family Education Rights and Privacy Act,” the court wrote. “Because there is no evidence the Commissioner acted unreasonably when responding to Krakauer’s request, attorney fees and costs are unwarranted.”

A UM disciplinary committee found former student Jordan Johnson guilty of rape and ordered him expelled from school in 2012. Johnson, quarterback of the football team, was never expelled and was later found not guilty of the alleged crime in Missoula County District Court.

Krakauer sought the disciplinary records as early as 2012 and filed suit in 2014. The Commissioner of Higher Education argued that state and federal law prohibited the Montana University System from releasing such records related to students.