University lacks policy for preserving public records

By Lev Facher, Daily Sports Editor
Published November 5, 2014

Of the many grievances voiced against former Athletic Director Dave Brandon before his departure Oct. 31, lack of transparency was at the forefront. Brandon’s consistent response to requests for his public records, however, was in line with University policy.

Despite the fact that Michigan state law requires public bodies to “protect public records from loss, unauthorized alteration, mutilation, or destruction,” according to University spokesman Rick Fitzgerald, there is no University policy currently in place to ensure that employees retain communications in accordance with state-level regulations.

State law stipulates that public records be kept and disposed of in accordance with a formal schedule, which requires that correspondence be retained for two years after the date of its creation before it can be destroyed.

University officials, however, claim that on-campus regulations are separate and exempt from state law.

“It’s our policy that it’s up to individual users to determine their own document retention,” Fitzgerald said. “The University doesn’t have a set schedule.”

In a March 28, 2014 response to The Michigan Daily, Patricia Sellinger, the University’s Freedom of Information Act coordinator, indicated “there are no responsive records” corresponding to the request submitted for “all e-mails sent to and from Athletic Director Dave Brandon between March 13 and 14, 2014.”

A similar request for e-mails sent to and from Brandon — who resigned his post Oct. 31 — between July 24 and July 26, 2013 was denied on the same grounds. Both requests were made during the process of investigating the circumstances surrounding former kicker Brendan Gibbons’ permanent separation from the University for violating the Student Sexual Misconduct Policy.

“If you have a government employee creating any kind of a document, even electronically, that’s a public record,” said Frank LoMonte, executive director of the Student Press Law Center. “If he’s writing to other people that he does business with about Athletic Department business, then that absolutely should be a public record.”

The Michigan Penal Code states: “All official books, papers or records created by or received in any office or agency of the state of Michigan … are declared to be public property.”

While the penal code does not explicitly define the University as an “office or agency of the state of Michigan,” the Freedom of Information Act does, stating: “All state agencies, county and other local governments, school boards … and public colleges and universities are covered.”

Fitzgerald, however, said the University is “not a formal part of state government,” and University employees are free to choose if, when and how frequently they delete their e-mails.

The University has argued in court multiple times that it is a state agency, including the 1994 case of Moore v. University of Michigan, regarding the firing of a whistleblower in the school’s information technology department. The case centered on “whether (the University) can be characterized as an arm or alter ego of the state,” according to the case brief. The University prevailed in court on the back of an argument that it is “an extension of the State.”

“It would be shocking to insist, in the face of decades of legal precedent, that open-record laws don’t apply to a public university,” LoMonte said. “Michigan law requires every state agency to maintain and enforce a records retention schedule.”

In comparison, Michigan State University’s document retention policies appear to comply with the law, requiring “General inter/intra and non-institutional office communication that deals with the operation of a campus unit” to be maintained for two years before it can be deleted.

“(MSU’s) schedule contains the same two-year retention policy for correspondence … (as) the records retention schedule for state agencies in Michigan,” LoMonte wrote in an e-mail interview.

Policies at Western Michigan University and Northern Michigan University are also in compliance with the state’s document retention schedule.

University General Counsel Timothy Lynch declined to comment on the relationship between state law and University policy, as did MSU General Counsel Robert Noto.

The Daily’s FOIA requests for Brandon’s e-mails were submitted months before an Oct. 28 report from MGoBlog.com, a popular non-University-affiliated Michigan sports blog, which gained national traction largely thanks to e-mails allegedly sent from a University e-mail address associated with Brandon’s name.

The e-mails, confirmed as authentic by MGoBlog, were deemed by many to be confrontational and unprofessional, and included phrases such as “Quit drinking and go to bed,” and “Have a happy life.” The Daily could not independently confirm the authenticity of these e-mails.

When the Daily submitted requests for e-mail archives of various other Big Ten athletic directors in mid-2014, representatives from MSU, the University of Iowa, the University of Wisconsin, the University of Nebraska, Purdue University and the University of Illinois responded with offers to provide the records. The University of Minnesota, Indiana University, Pennsylvania State University and Ohio State University did not respond immediately.

The Freedom of Information Act, passed in 1966, states that if “the public body has arbitrarily and capriciously violated this act,” the circuit court can award compensatory damages plus $500 in punitive damages to the individual who submitted the original request for records.

The Michigan Penal Code lists a similar penalty for willfully destroying records, a violation “punishable by imprisonment in the state prison not more than two years or by a fine of not more than $1,000.00.”

The University’s transparency, especially at a high level, has been repeatedly criticized in recent years. In 2011, The Michigan Daily published a special report detailing the University’s high fees for Freedom of Information Act requests, finding that it charged much more for documents than comparable public institutions. Separately, in July, the Detroit Free Press announced that it would be suing the University’s Board of Regents for allegedly violating Michigan’s Open Meetings law, which requires that public bodies adhere to a number of guidelines for public debate.