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College law clinics oppose record requests

Daily Staff Reporter
Published January 20, 2011

If a recent New Jersey Court ruling declaring that public university law clinics must comply with open records requests expands to other states, clinics like the University of Michigan Innocence Clinic may encounter more challenges in trying their cases.

While law clinics like the Rutgers Environmental Law Clinic and the University of Michigan Law School’s Innocence Clinic are part of public institutions, those affiliated with the clinics say such legislation could have detrimental effects on their practices, which often function like private law firms.

The New Jersey ruling occurred when a appellate division of a New Jersey Superior Court appellate division unanimously declared on Oct. 25 that university clinics have to submit to the state’s Open Public Records Act.

The decision overturned a 2008 New Jersey ruling that exempted public university clinics from submitting to open records requests. No such ruling currently exists in Michigan regarding the relationship between the open records requests and clinics associated with public higher education institutions.

The New Jersey ruling involved the Rutgers School of Law Environmental Law Clinic, which has submitted a brief to the New Jersey State Supreme Court calling for a repeal of the decision. Founded in 1985, Rutgers University law students work at the Environmental Law Clinic to solve issues involving building permits, waste transfer and water and air pollution, according to the clinic’s website.

Frank Askin, director of the Rutgers School of Law Constitutional Litigation Clinic, said he expects the New Jersey Supreme Court to decide whether to hear the case in the next couple of weeks. He said submitting to open records requests would be harmful to the operation of university clinics because clients could no longer expect their information to be safeguarded against becoming public knowledge.

“It would be very harmful to clinical education at public law schools if (the October New Jersey ruling) became the law,” Askin said. “It would open us up to all kinds of harassment.”

The Rutgers Environmental Law Clinic is more like a public defender office since it is funded in part by the state but doesn’t exclusively work for the state, Askin said. Many of the cases the clinic takes on are against the state, Askin said, so treating the clinic like a state employee is confusing.

“The whole thing is ridiculous,” Askin said. “It doesn’t make sense.”

While a co-chair of a subcommittee of the American Association of Law Schools, Bridget McCormack, now co-director of the University of Michigan Law School’s Innocence Clinic, worked on a legal brief in defense of the Rutgers Environmental Law Clinic.

McCormack said the Innocence Clinic functions like a private law firm and should be treated as such. The New Jersey ruling undermines the confidentiality clients should expect from the office representing them, she said.

McCormack said she fears that with such legislation, the opposing council in many cases could use open records requests as roadblocks.

“I don’t think the rule is appropriate for any law practice because it doesn’t allow us to practice law ethically,” McCormack said. “The ethical practice of law requires that we be able to promise our clients confidentiality, and you can’t do that because you happen to be subject to a state open records law.”

But McCormack also said there are other groups that may be affected more from the ruling than the Innocence Clinic. Of great concern, McCormack said, is that all clinics at state universities could be subject to their state’s open records enforcement if laws similar to the one in New Jersey were passed in other states.

“In some ways, the Innocence Clinic is not the clinic to worry the most,” McCormack said.