Op-Ed: Schlissel’s shameful attempt to skirt FOIA laws

I didn’t know much about the Freedom of Information Act when I was an undergrad at the University of Michigan. I was too busy drinking beer, screaming myself hoarse on Saturdays at the Big House and trying (in vain) to keep up with the readings for my English major classes on the American novel and Jane Austen. But not long after graduating and pursuing a career in journalism, I became entangled in a years-long battle over public records that stemmed from a true crime book I was — and still am — trying to write about a medical school classmate of my dad who was sentenced to life in prison for prescription drug-dealing. Once the trial ended in that case, my seemingly-straightforward requests to see the evidence were met with denials, delays, arbitrary fees and excessive redactions. All told, it took me more than five years and the help of two pro bono attorneys to wrestle those exhibits free. 

This years-long battle for access to evidence from a high profile trial — which I once called “the single most disillusioning experience of my life” — turned me into a FOIA Guy: someone who writes, talks and tweets about government transparency, and, in one case, flew to Brazil to appear on a panel about access to public records. 

So I was disturbed by a story from earlier this month, first reported in the Washington Post and then in The Michigan Daily, about University President Mark Schlissel and other Big Ten school administrators’ attempts to shield their deliberations about how to handle last year’s mid-pandemic football season from public view. As the Post reported, Schlissel suggested moving the conversation to a private Big Ten-affiliated communication system that isn’t subject to transparency laws, and at one point asked University of Wisconsin Chancellor Rebecca Blank, “If you simply delete emails after sending, does that relieve you of FOIA obligations?” When she explained that deleting emails would be a breach of records laws, Schlissel responded, “That’s really interesting and difficult. Thanks for explaining.” 

By now, other transparency advocates have weighed in on this story. Adam Marshall, an attorney for the Reporters Committee for Freedom of the Press interviewed by the Post, called the behavior from top administrators “shocking” and “troubling.” On Twitter, Ted Bridis, a former Associated Press investigative reporter who teaches journalism at the University of Florida, described it as “outrageous.” But, in my capacity as a lifelong Wolverine and a public records nerd, I wanted to weigh in on why I was bothered by it — and why you should be, too.

First, a bit of background. The Freedom of Information Act is far more than just a punchline from the movie Dodgeball. Since the law’s passage in 1966, it has helped perform the invaluable democratic service of revealing uncomfortable truths about our society. The FOIA has helped inform us about the FBI’s campaign to surveil and subvert Martin Luther King Jr., the force-feeding of detainees at Guantanamo Bay, the Pentagon’s arming of local police departments with military-grade weaponry and sillier things like complaints about Amtrak’s cafeteria cars. 

As I recently reported for Columbia Journalism Review, over the last four years, the FOIA helped expose some of the worst corruption and dishonesty of the Trump era. In 1985, the late New York Times columnist William Safire wrote that the law “has done more to inhibit the abuse of Government power and to protect the citizen from unlawful snooping and arrogant harassment than any legislation in our lifetime.”

One of the FOIA’s most important legacies is the fact that it inspired 50 similar state-level laws in the decades after its passage. In 2015, freelance journalist Brandon Smith used the Illinois Freedom of Information Act to pry free a previously-withheld dashcam video of Chicago police fatally shooting a black teenager, Laquan McDonald, which led to a series of reforms, resignations and criminal charges. More recently, state-level records laws helped high school students in Kentucky publish a police-training slideshow that favorably quoted Adolf Hitler; there, too, a high-profile resignation followed.

Michigan’s Freedom of Information law was passed in 1976, and because the University of Michigan is a public institution, the school is subject to requests. (You can read more about this via this page from the provost’s office.) This has led to the publication of the contracts for Jim Harbaugh and former men’s basketball coach John Beilein, and valuable reporting by The Daily on pricey non-disclosure agreements offered by the school to former employees and hefty fees charged for the fulfillment of records requests. 

And this is the kind of transparency that Schlissel was trying to evade. 

While Schlissel’s words are bad enough on their own, there are two additional things worth highlighting. First is that Schlissel occupies a position of enormous power: As of 2018, he took home a salary of more than $850,000 and he leads an institution with tens of thousands of students and employees, a $9 billion operating budget and its own police force. He is, functionally speaking, a politician. (He’s also a trained physician and medical researcher, which adds an interesting layer to his COVID-19 response.) 

Moreover, the Big Ten’s move to cancel the football season, and then reverse course, was a decision that affected the lives of players, fans, coaches and countless others, and involved tens of millions of dollars in potential revenue. Additionally, it even included America’s demagogic president, Donald Trump, who had turned the season’s un-cancellation into a talking point.

It was, in other words, the perfect example of why freedom of information laws exist: to provide a check on powerful people making decisions of great public importance. For Schlissel to try to evade those laws not only reveals a disturbing ignorance of, or antipathy toward, laws that protect the public’s right to know, but it also raises the question of what other conversations and decisions he might be trying to shield from legal public oversight. 

Though we’re only a few months into 2021, these actions make Schlissel a leading candidate for one of this year’s “awards” from transparency-focused organizations for FOIA failures. (In 2019, Michigan State University received a “Golden Padlock” from Investigative Reporters and Editors for its “unrelenting commitment to ensuring transparency was avoided” with regard to the serial sex offender and disgraced USA Gymnastics team doctor Larry Nassar.) 

Embarrassing as this episode is, though, Schlissel’s FOIA flub can be turned into a teachable moment if it inspires folks to educate themselves on national and state-level freedom of information laws. As a starting point, I recommend one of MuckRock’s anthologies of FOIA-produced documents, historian Jon Wiener’s book about his decades-long fight for the release of John Lennon’s FBI file, the Freedom of the Press Foundation’s Twitter “FOIA Feed” or Article 19’s FOI-law training manual for public officials. Perhaps this incident will even inspire you to file a request of your own, or write to Schlissel to express your disappointment. 

More than anything else, this moment is a reminder of something I didn’t grasp until years after leaving the University: Public access to records is as vital a democratic principle as anything enshrined in the Bill of Rights. Any attempt to evade such laws is behavior unbecoming of the president of a school that calls itself the “Leaders and the Best.” 

Philip Eil is an alumni of the University of Michigan, class of 2007. He is now a freelance journalist and an adjuct college instructor in Rhode Island. He can be reached at philip.edward.eil@gmail.com.