In the aftermath of former Athletic Director Dave Brandon’s resignation, questions have been raised surrounding the University’s public document retention procedure. Michigan’s Freedom of Information Act requires any public body to provide access to a public record to any person who submits a specific request. Additionally, the state provides a number of Retention and Disposal Schedules for state agencies to follow regarding appropriate maintenance and disposal of public records. Despite the fact that these retention schedules are required for state agencies, University administrators have argued that the school itself is “not a formal part of state government” and therefore exempt from the state’s document retention policy. While there are conflicting opinions about whether or not state document retention policies apply to the University, it’s also unclear why the school has taken itself to be an exception and is engaging in a larger pattern of behavior that obscures public transparency.
When The Michigan Daily submitted a FOIA request for “all e-mails sent to and from Athletic Director Dave Brandon between March 13 and 14, 2014,” on March 28, Patricia Sellinger, the University’s FOIA coordinator, informed the Daily that such records did not exist.
“It’s our policy that it’s up to individual users to determine their own document retention,” said University spokesman Rick Fitzgerald. So in this case, it appears that the University as a whole has no specific e-mail retention policy, and therefore allows its own employees to maintain a retention policy that makes administrative e-mails unavailable to the public in just two weeks at best. This hardly seems like a policy that promotes transparency. In fact, a document retention process that forces the public to file a FOIA request within a two-week window — further shortened by the five-day grace period granted for a response — actually makes access to public records extremely difficult to obtain.
Regardless of the University’s legal status and responsibility to abide by state document retention policy, it’s morally impermissible for the University to neglect its responsibility to diligently maintain public records.
According to Western Michigan University’s Record Retention Guide, “E-mail messages, both those stored in the computer and those printed out, should not be considered private. E-mail messages may be considered public records pursuant to Michigan and federal law and may be subject to disclosure.” WMU has stipulated that e-mails, along with several other types of documents, must be retained under certain established guidelines. For example, any correspondence designated under its retention guidelines must be kept for three years. Similarly, Michigan State University and Northern Michigan University closely follow state guidelines pertaining to record management and retention. MSU dictates that any record pertaining to general correspondence involving an administrator about the workplace must be kept for two years or as long as the record is active.
While NMU doesn’t seem to give specific time periods for record retention on its website, it states that according to the Michigan Penal Code, disposal of university records without the approval of a university archivist or authorization of the approved Retention and Disposal Schedule may result in penalization by the state courts, suggesting NMU considers itself a state agency.
But perhaps even more troubling is that in recent years, the University has developed something of a bad habit of obstructing access to public information.
In 2011, the Daily filed a series of FOIA requests to multiple Big Ten schools and found that the University of Michigan consistently charged significantly higher fees for such requests. Specifically, the Daily requested the number of parking tickets issued by campus police within a one-year time frame. While Big Ten schools such as Indiana University, the University of Iowa, the University of Nebraska and The Ohio State University all provided the information free of charge, the University of Michigan estimated a fee of $1,240. The total number of parking tickets provided was comparable across these schools, suggesting comparable corresponding costs at each university — unless, of course, the University of Michigan’s documentation procedure is highly inefficient relative to similar Big Ten institutions.
The Daily also requested records for employee purchasing card transactions in a one-year span, for which the University of Michigan charged $1,800 for data on nine administrators. In comparison, the University of Iowa charged $181.50 for records on more than 2,500 employees. The University of Illinois at Urbana-Champaign, the University of Nebraska and OSU provided the information for free. Such excessive fees create a de facto barrier between the public and its right to access governmental documents. It is illegal for the University to charge substantial fees for the purpose of discouraging FOIA requests, but a disorganized and inefficient record-keeping process that leads to high fees effectively creates identical repercussions. In the end, the public is financially discouraged from pursuing University records.
Earlier this year, the University again acted in a manner that effectively blocked access to public information. In late January, after former Michigan kicker Brendan Gibbons was permanently separated from the school for a violation of the Student Sexual Misconduct Policy, the University refused to confirm the separation and elected not to respond to public outrage over the four-year delay of disciplinary action against Gibbons. Among other reasons, the University used the Family Educational Rights and Privacy Act as an excuse to justify its silence, even though the text of FERPA does not prohibit the University from “disclosing the final results of any disciplinary proceeding … against a student who is an alleged perpetrator of any crime of violence, or a nonforcible sex offense … ” After declining to release information pertaining to Gibbons, Fitzgerald said school administrators considered “the spirit of the law” as well as “the letter of the law.”
Looking at all these different cases, it is clear that the University is behaving in a suspicious manner. The problem is that it appears as though the University has become too fond of using “the spirit of the law,” often interpreting the law in different ways that always appear to be at odds with institutional transparency. In some ways this makes complete sense, and a strong sense of self-preservation is to be expected. But in doing so, the University is mortgaging its future in order to inflate an artificial image now. A failure to openly admit flaws and mistakes prevents the University from wholeheartedly pursuing possible solutions. The school must adopt a long-term perspective for its own well-being, as engaging in dubious practices that mitigate today’s problems will only allow underlying faults to fester and reemerge in the future.