Three years later, Michigan court rules Michigan State illegally withheld information

Michigan lawmakers must close FOIA loopholes

Michigan’s Freedom of Information Act was meant to allow citizens virtually unfettered access to public records so that public officials and institutions would be accountable. But many government entities push the boundaries of the law and fight tooth and nail to keep their records secret.

A standard method often used by schools and universities is an exemption to FOIA called the Family Educational Rights and Privacy Act (FERPA). A federal law, FERPA was enacted to protect the privacy of certain information about students and parents – information such as individual student grades, family financial information submitted for financial aid purposes, and similar data that the public does not need to know about.

This exception makes perfect sense, when used in a limited and appropriate way. However, schools and universities have been using FERPA to conceal information that is not directly related to individual students in their educational capacity.

Consider Michigan State University. In summer 2020, more than three years ago, the Mackinac Center filed a public records request about the firing of an administrator based on controversial blog posts. These posts were taken out of context by the graduate students union, described by The Wall Street Journal as a Twitter mob, and led to Dr. Steven Hsu stepping down. We were interested in finding out the justification for the firing, and we requested documents.

Part of the records that MSU provided should have contained information pertaining to students who sought to influence the governance of the university. The university used FERPA to withhold or redact almost all the relevant emails. It’s been years, but the Michigan Court of Appeals ruled in favor of the Mackinac Center and ordered MSU to disclose these records.

MSU had argued that because these were university students, records of their actions (emails, signing petitions, etc.) fit into the broad category of “education records,” which are exempt under FERPA and FOIA. We argued, and the court agreed, that these were not the education records that were exempt. These were not the students’ grades, their academic discipline records, or their financial records. Rather, the records we sought were about students who petitioned the officers of MSU to influence its decision-making, and they willingly interjected themselves into a public debate.

As the Mackinac Center pointed out, anyone wishing to address the MSU trustees at their meetings is required to provide to the trustees his or her name, relationship to the university, street address, phone number, email address, and the subject of his or her opinion. This information is then made public. The same thing is true for anyone wishing to address the City Council of East Lansing.

But MSU’s argument was that the state’s FOIA law enables the university to keep information secret from the public.

“[T]he students were reaching out to address the situation involving Hsu and showcasing whether they supported or opposed Hsu’s removal,” the Court of Appeals held. “As the Court of Claims found, the information related more directly to Hsu than to the students. In other words, although the information related tangentially to the students, the information did not directly relate to them but, instead, directly related to the situation involving Hsu.”

The opinion in this case provides the clearest description in Michigan caselaw of when the exemption for FERPA information regarding students applies to public records requests. It is just the latest in a string of transparency victories the Mackinac Center has won over public entities across Michigan. But it should not take three years and hours of legal work to arrive at a decision that is obviously in line with the law. It’s another reason Michigan lawmakers should rewrite the state’s open records act to close loopholes being exploited by public entities that don’t want to be open to scrutiny.

Michigan Capitol Confidential is the news source produced by the Mackinac Center for Public Policy. Michigan Capitol Confidential reports with a free-market news perspective.