University of Michigan Violates Open Records Law

The University of Michigan withheld emails in violation of the Freedom of Information Act by claiming they were protected conversation under law but none of those emails met that standard. The withheld emails involved comments University of Michigan President Mark Schlissel made about President Donald Trump and were eventually released after a settlement of a lawsuit.

U-M withheld seven emails and claimed that they were protected from disclosure under the FOIA law. It cited a provision that allows public entities to withhold documents that are “of an advisory nature that cover purely factual materials and are preliminary to a final agency determination of policy or action.”

The Mackinac Center for Public Policy sued U-M over seven contested emails and in a settlement the university released the emails.

The emails do not contain anything that would be considered part of any “determination of policy or action.” They do contain comments made by Schlissel to colleagues that are highly critical of Trump.

“If we didn’t sue them, we would have never gotten these documents,” said Patrick Wright, director of the Mackinac Center Legal Foundation.

Rick Fitzgerald, spokesman for the University of Michigan, referred to a statement the university made in the settlement.

It read: “The University denies any wrongdoing and states that in January of 2017, while in the course of processing the request at issue, the University of Michigan received and logged the highest number of FOIA requests ever in a single month in the University’s history.”

The statement continued: “The response period also included personnel absences in the University’s FOIA office due to illness, the University’s December break, and nine business days between the final invoice and payment by the Mackinac Center.”

The university said it would create two new staff positions dedicated to FOIA management and response.

Michigan Capitol Confidential filed the FOIA on Nov. 16, 2016. U-M responded on Dec. 12 and the Mackinac Center made the requested good-faith deposit on Dec. 15. The Mackinac Center’s check was deposited by U-M on Dec. 20. The FOIA documents were not sent to the Mackinac Center until March 1.

Michigan Capitol Confidential filed the FOIA to get any emails from President Schlissel mentioning President Donald Trump because Schlissel has been highly critical of Trump in the media. The day after the election, Schlissel addressed a student protest, saying 90 percent of the students had not voted for Trump. He commended them for rejecting “the kind of hate and the fractiousness” he had seen in the campaign season.