By Adam Rubenfire, Daily News Editor
Published October 23, 2012
Though other universities have approved requests for the release of the graduate school application of James Holmes — the 24 year old charged in the mass shooting that took place at an Aurora, Colo. movie theater in July — the University denied a Freedom of Information Act request to view his denied application to the University’s neuroscience graduate program.
In a letter to The Michigan Daily on Tuesday, Gary Krenz, special counsel to University President Mary Sue Coleman, denied the Daily’s appeal to the University’s initial denial for the documents early this month.
In a Sept. 11 letter to The Michigan Daily, Patricia Sellinger, the University’s FOIA coordinator, said an Aug. 31 request to review Holmes’s application was denied because disclosing the application would “constitute an unwarranted invasion of an individual’s privacy,” which is an excerpt from Section 13 (1)(a) of the Michigan Freedom of Information Act, and details exemptions from the act.
The state’s FOIA law details how public records should be released and what types of records and information do not have to be released, or are exempt from the law.
In his response to the Daily’s appeal, Krenz wrote that the University generally deems applications as exempt from FOIA.
“It is our considered assessment that a student application is an integral record and that disclosure of any part of it would constitute an unwarranted invasion of privacy,” Krenz wrote.
Though Michigan’s FOIA law allows for private information within a document to be redacted, Krenz wrote that the release of any part of an application would put the entire admissions process in jeopardy.
“The release of a student application in this or other cases would have, we believe, deleterious effect on the applicants and on the admissions process, and we consequently believe that the University and the public are best served by protecting the integrity and confidentiality of that process,” Krenz wrote. “We therefore respectfully decline to release any part of the record.”
University spokesman Rick Fitzgerald said the University’s response to the FOIA request is consistent with how it has responded to previous requests for student applications.
“It’s our view that is the private business of that individual,” Fitzgerald said.
When asked if exempting student applications from release is an official procedure followed by the University’s FOIA office, Fitzgerald said it is simply the University’s general interpretation of the law.
“It’s not a policy, it’s how that type of record — we see a student application record as not something that we’re required to release under FOIA,” Fitzgerald said.
Fitzgerald added that upon review of the application, the University believes that it is exempt from FOIA in its entirety.
“We’ve looked at this document, and we believe that this document in total … is exempt,” Fitzgerald said.
The University’s denial comes after officials at the University of Iowa, the University of Illinois and the University of Alabama released Holmes’s graduate applications after receiving requests, which Fitzgerald acknowledged.
“I can also appreciate with other schools in other states operating under … somewhat different FOIA laws may have come to other decision on releasing that material,” Fitzgerald said.
However, all three universities exist in states that have similar or less restrictive FOIA laws than Michigan.
The Illinois FOIA law exempts from disclosure, “personal information contained within public records, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.”
Illinois defines “unwarranted invasion of personal privacy” as the “disclosure of information that is highly personal or objectionable to a reasonable person and in which the subject’s right to privacy outweighs any legitimate public interest in obtaining the information,” according to the state’s FOIA policy.
The Iowa Open Records Law states that, unless authorized, “personal information in records regarding a student, prospective student, or former student maintained, created, collected or assembled by or for a school corporation or educational institution maintaining such records,” should be kept confidential.
Finally, the state of Alabama’s Open Records law does not explicitly exempt personal information on the basis of privacy, but does exempt, “records the disclosure of which would otherwise be detrimental to the best interests of the public.”
Frank LoMonte, executive director of the Student Press Law Center — a Virginia-based nonprofit that protects the rights of journalists — said legal privacy is largely based on whether a person has a reasonable expectation of privacy.
In the case of Holmes, whose photo and biography have been widely disseminated throughout the media, LoMonte said there is no reasonable expectation of privacy.
“Once a person is caught up in a nationwide headline-making crime, that person loses any reasonable expectation of privacy in information they filed with the government,” LoMonte said.
He added that it’s particularly concerning that the University chose to deny access to the entire document, rather than simply redact clearly private information.
“Typically, public records are not an all or nothing matter,” LoMonte said. “If you can remove the portions of the record that give away truly secret information, like a social security number, then you’re supposed to remove only those portions and disclose the rest.”
LoMonte said public information like Holmes’s date of birth, hometown and high school are not exempt under Michigan FOIA.
“I find it hard to believe that there’s not any part of that record that couldn’t be safely revealed without giving away top-secret information,” LoMonte said, adding that information such as the date of application could be useful in knowing if he applied to the University after being denied by other institutions.
LoMonte added that questionable denial of FOIA requests appears to be a trend, noting that many government entities believe requestors won’t challenge them in court.
“I think we’re definitely seeing more and more that government agencies are getting bolder about withholding records because they’re convinced they can get away with it,” LoMonte said. “They know that it’s costly and time consuming to sue, and that a lot of media outlets — especially campus ones — don’t have the time and money to pursue it.”
LoMonte said the University has little reason to protect the privacy of Holmes when the public already knows many intimate details of his life, and his reputation is already damaged beyond repair.
“I just can’t see where there’s any interest in a public institution bending over backwards for somebody who’s never going to see life outside a jail cell again and whose life is an open book,” LoMonte said.