University sued for delayed compliance with FOIA request

Monday, March 6, 2017 - 2:47pm

Last week, the Mackinac Center for Public Policy filed a lawsuit against the University of Michigan regarding the state’s Freedom of Information Act, claiming the University failed to provide the documents requested within due time.

On Nov. 16, Derek Draplin, a reporter with the Mackinac Center’s Michigan Capitol Confidential media outlet, issued the request on behalf of the nonprofit Michigan corporation to release University President Mark Schlissel’s emails containing the word “Trump” from July 1 to Nov. 16 of 2016. 

In the aftermath of the presidential election, Schlissel released a statement endorsing University-sponsored events that aimed to provide resources and information for students who felt heavily impacted by the election results to gather and share ideas. One event was a vigil at which Schlissel spoke, encouraging advocacy among those who did not support the election results.

Schlissel’s public response to the contentious 2016 election cycle was received by overwhelming backlash from over 380 students and alumni who signed a petition condemning the University’s response to President Donald Trump’s victory, claiming that the University was “perpetuating a hateful climate that makes students feel ashamed for voting for Donald Trump.”

The requested emails would have provided insight into Schlissel’s actions and the details of the University’s response to the emotionally charged election cycle.

In a news release by the Mackinac Center, John Mozena, vice president for marketing and communications, expressed how Schissel’s response was problematic.

“In his professional role as head of a public university, President Schlissel took a very public stance against President-Elect Trump and the people who elected him,” Mozena said. “Our CapCon team was interested in learning more about the decision-making process that led to the actions taken by this public university and its employee, and filed the FOIA request accordingly.”

Michigan’s open records law requires government agencies and public institutions such as the University, to respond to requests within five business days. However, through a series of articles in the FOIA that permit and outline circumstances for the deferment of requests, the request kept getting delayed.

In an email written by University FOIA Specialist Shannon Molen, the initial response to the request stated that, due to the high number of appeals, the FOIA Office cannot respond within the five-day period as required by the FOIA and referenced a clause in the act that permits a 10-day extension to respond to requests and ensured the response would be delivered on or before Dec. 12.

On the final day of the extension, Patricia Sellinger, chief Freedom of Information officer, responded to the reporter in a letter outlining the $126 total cost for the request and a good-faith deposit of half the total amount, as allotted by clauses in the FOIA, in order to complete the request. She also issued a new estimate of four weeks to complete the request once the deposit was cashed.

Through several emails inquiring about the status of his request, Draplin was first given an estimate of completion by Jan. 24. Draplin was given a later estimate of within 10 days, being told again the office was processing a high volume of requests and could not meet its original estimate to process in late January.

On the final day of the latest estimate, a letter by Sellinger requested the remainder of the total fees in order to complete the request and issue the four emails found to match his request. 

When the final payment was processed by the University on Feb. 23, the Mackinac Center still received no documents per its request.

After announcing the lawsuit on March 2, the Mackinac Center received the documents, a few days after the University processed the payment, containing four of Schlissel’s emails in the mail. Since the University’s FOIA Office took 106 days to provide the emails, however, the Mackinac Center is still pursuing the lawsuit. 

In a news release issued by the Mackinac Center, Patrick Wright, director of the Mackinac Center Legal Foundation, discussed the nature of the lawsuit and quoted Michigan coach Jim Harbaugh in doing so.

“To borrow a phrase from the University of Michigan’s football coach, the Mackinac Center will fight for governmental transparency ‘with an enthusiasm unknown to mankind,’ ” Wright said. “The documents are important, but at this point, it’s really about the delay. People and the press have a right to information no matter how embarrassing or inconvenient it might be to the public officials involved.”

Wright also reasoned the simplicity required thereof to perform the tasks requested by the FOIA Office.

“This was a simple request,” Wright said. “Any of us could find the relevant documents in 30 seconds with a simple word search in our sent email folder. There is no reason it should take over 100 days for the University of Michigan to follow the law.”

University spokesman Rick Fitzgerald issued an updated statement regarding the situation iterating the University has done nothing wrong.

“The University has not been served with the lawsuit, but I can assure you that UM fully complies with our state's Freedom of Information Act,” Fitzgerald said. “In this case, the University sent the Mackinac Center the materials the reporter requested on Feb. 27, just a few days after receiving payment.”

The Mackinac Center is seeking penalties to the fullest extent possible under the law due to the University’s disregard of Michigan’s transparency laws.

“The University’s delay is so egregious we were forced to turn the matter over to the courts so they could uphold basic principles of government transparency,” Mozena said. “Accountable government requires transparency and effective journalism requires timely transparency. Delayed FOIA responses hurt the ability of journalists and everyday citizens to investigate and publicize the actions of our government.”