University declines to estimate timeline for FOIA documents

By Sam Gringlas, Managing News Editor
and Max Radwin, Daily Staff Reporter
Published March 11, 2015

The University has yet to release dozens of documents related to the U.S. Department of Education’s ongoing Title IX investigation of the University, which were requested and paid for in part by The Michigan Daily over two months ago.

The Daily made a request to the University in December under the purview of the state’s Freedom of Information Act, and paid one of two $445 fees in January for the collection of documents related to sexual misconduct — including written complaints, e-mails from administrators and witness statements, among other documents.

The state’s Freedom of Information Act, or FOIA, provides for the release of records by public institutions in the state of Michigan, including the University. However, after the documents are requested, FOIA does not specify a deadline by which an institution must produce the documents.

In a February phone interview with the Daily, Patricia Sellinger, the University’s FOIA coordinator, said she could not provide a timeline for when the Daily’s document request would be filled.

She could not be reached for comment Wednesday.

Frank LoMonte, executive director of the Student Press Law Center, said he believes the University has surpassed what he considers a “reasonable time.”

“Because of the national spotlight that has been focused on campus sexual assault, colleges everywhere are being asked for documents about how they handle those cases,” he said. “Understandably, there is sensitivity about records that might reveal confidential information about victims and some degree of redacting is probably legitimate. But that process really should not take months.”

Though the FOIA does not specify a time frame for producing records, Jane Briggs-Bunting, an attorney, president of the Michigan Coalition for Open Government and former director of Michigan State University’s School of Journalism, said many public institutions interpret the response period as applicable to the production of the documents as well.

“U of M has obviously not interpreted it that way,” she said.

University spokesman Rick Fitzgerald said the Daily has requested very sensitive documents, and University officials need to ensure the release doesn’t violate the Family Education Rights and Privacy Act, for example. He said two months is not an unreasonable time frame for the University to respond to such a request.

Certain types of information are exempt from FOIA, and officials must review every document to redact information not permitted for release. He also said documents wouldn’t likely be released as they become available — per the Daily’s request — but they would most likely be produced as a full package.

“It’s far more important to do this right than to do this quickly,” he said.

Fitzgerald also said he couldn’t speculate on the length of the process, but said the review has started.

“We just don’t know how long some of the things will take,” he said.

In February 2014, the U.S. Department of Education announced it would launch a federal investigation of the University’s handling of sexual misconduct, prompted by two Title IX complaints submitted to the Department’s Office of Civil Rights.

One of these complaints, lodged by Douglas Smith, a former professor of pathology at the University, alleged that the University mishandled sexual misconduct allegations against former Michigan kicker Brendan Gibbons. In January 2014, the Daily reported Gibbons had been permanently separated from the University for violating the student sexual misconduct policy.

The University supplied hundreds of pages of documents related to sexual misconduct on campus to the Office of Civil Rights, including its policies governing sexual violence, any changes to those policies and the names of personnel responsible for investigating complaints. It also provided all formal and informal complaints of discrimination, and all e-mail correspondence regarding sexual misconduct.

In September, the Daily requested access to many of the documents the University provided to the U.S. Department of Education, which the University’s FOIA office appraised at $1,720.

The Daily revised its request in December to include only a portion of the documents involved in the investigation, which the office said would cost $890. The Daily paid the first half of this fee in January, but the University has not yet produced the documents.

“There are a number of universities that seem to have a culture of obstructionism, and Michigan is certainly among them,” LoMonte said. “We’ve had recurring problems over the years of a culture of non-transparency.”

Briggs-Bunting, who noted that two months “is more than adequate” for the University to produce the documents requested by the Daily, said the University seems to be “dragging its feet.”

“They’re also playing a game because it’s not necessarily information that (they) want to go out in the public,” she said. “Certainly that’s not something that other public institutions haven’t attempted to do in the past.”

Under a revised version of FOIA, effective July 1, public bodies will be required to provide an estimate of when records will be provided. Though the time estimate will not be binding, public institutions will be required to “provide the estimate in good faith and strive to be reasonably accurate.”

Fitzgerald said the University will comply with state law when the revisions take effect, but for now the University does not have processes in place to provide a timeline estimate.