News Story

University of Michigan Works To Conceal Records It Must Disclose Under Law

Michigan Gov. Gretchen Whitmer has repeatedly said that her decisions that have shut down private businesses throughout 2020 and eradicated thousands of jobs were based “on the best science, the best facts.”

But the governor has refused to disclose how the data is shaping her decisions, despite assurances last April that she would be transparent.

The Mackinac Center for Public Policy has filed a lawsuit against the University of Michigan trying to get information on how data has influenced Whitmer’s actions.

The lawsuit is part of a troubling trend of noncompliance on the part of the University of Michigan involving the state open-records request law, known as Freedom of Information Act.

The week of March 14-20 is Sunshine Week, which was started in 2005 by the American Society of News Editors to promote open government.

Currently, the Mackinac Center has three lawsuits filed against the University of Michigan for alleged violations of FOIA law.

On May 13, the Mackinac Center filed a FOIA request with U-M asking for correspondence between four U-M employees and state government employees. The motive was to get insight on any advice U-M officials were giving Whitmer in regards to COVID-19 policies.

U-M responded with a cost estimate of about $2,300. Cost estimates in the thousands of dollars serve as a barrier to transparency ,as few private individuals could afford it.

The public documents were not released by U-M until October. U-M would not release some documents and cited a “frank communications” exemption in the FOIA law.

The “frank communications” exemption is applicable if:

  1. they are more than purely factual; 2) they are advisory in nature; and 3) they are preliminary to a policy decision or determination. If those factors are met, and the public’s interest in encouraging frank communications clearly outweighs the public’s interest in obtaining information in the particular instance.

In 2017, U-M also cited the “frank communications” exemption when it withheld certain emails from President Mark Schlissel from its response to a FOIA request. The Mackinac Center sued U-M, and the university released the emails in a settlement. Those emails did not contain anything that would be considered part of “determination of policy or action” but did contain comments made by Schlissel to colleagues that were critical of President Donald Trump.

In response to the lawsuit involving COVID-19 policy, U-M did release some documents that were heavily redacted.

U-M initially provided 155 pages of documents, comprised largely of department employees discussing the logistics of who would be attending meetings.

The unredacted material also included publicly available slides showing COVID-19 data and trends, and other pages already available to the public on state websites.

For example, some of the documents released by U-M were duplicate copies of a 14-page report from the Michigan Licensing and Regulatory Affairs Department on child care operations.

None of the documents provided any insight into what advice U-M officials were giving to the state about COVID-19 policy.

“We are baffled that the Mackinac Center would file a lawsuit in this matter,” said U-M Spokesman Rick Fitzgerald in an email. “In response to the Mackinac Center’s FOIA appeal, the university provided 224 pages of documents with very modest redactions – mostly of email addresses for security purposes – perhaps totaling five pages. That is in addition to the 155 pages of documents provided in the university’s initial response. The university will vigorously defend the integrity of our FOIA process in the Court of Claims.”

The Mackinac Center has other lawsuits pending against U-M in regards to FOIA.

The Mackinac Center filed a lawsuit on behalf of a U-M donor in 2020.

The American Council of Trustees and Alumni made a public records request about an endowment gift made more than 10 years ago to find out how the gift had been spent.

U-M estimated it would take 45 business days to complete the 6.75 hours of employee time necessary to complete the request.

In March, a Washington Post story stated that U-M’s Schlissel discussed deleting emails as a way to have them not be discoverable in a FOIA request.

In emails obtained by The Washington Post, Schlissel talks about ways to make the conversations private between public officials. The story was about Big Ten officials discussing sports during the COVID-19 pandemic.

“Just FYI — I am working with Big Ten staff to move the conversation to secure Boardvantage web site we use for league materials. Will advise,” Schlissel stated in an email, according to the Washington Post.

The newspaper reported that Big Ten presidents find value in Nasdaq Boardvantage software because they believe it is exempt from open-records laws.

The Washington Post reported that open-records requests for communications used on Boardvantage were denied.

The Washington Post also reported that the U-M president made other comments about deleting emails so they wouldn’t be subject to FOIA.

The publication reported, “After Schlissel asked his colleagues to share their experiences in dealing with the coronavirus on campus, [Wisconsin Chancellor Rebecca] Blank wrote: “Mark and others — please note that anything that arrives in or is sent from my email can be requested as a public record. I know I’m not the only one for whom this is true.”

The story also noted an exchange between the U-M president and the Wisconsin chancellor about deleting emails to escape FOIA obligations.

It noted, “Schlissel wrote in an individual message to Blank: ‘becky, if you simply delete emails after sending, does that relieve you of FOIA obligations? I share your concern of course.’

There is no indication that Schlissel or Blank deleted emails to evade public records laws. Blank told Schlissel that her deleted emails are subject to disclosure through the Freedom of Information Act and she would be violating state law if she permanently deleted them.

Schlissel, who has been Michigan’s president since 2014, responded: ‘that’s really interesting and difficult. Thanks for explaining.’”

U-M's Fitzgerald released this statement:

“I want to be very clear about this: Neither U-M nor President Schlissel hid any COVID-19 discussions from FOIA.”

“As we told the Washington Post and other news outlets, President Mark Schlissel regularly communicates with the presidents of Big Ten and other universities in a variety of ways on many topics.”

“In this case, President Schlissel was discussing with fellow presidents the status of the pandemic on those campuses and ideas about how to navigate the novel, shared challenge of COVID-19. While the suggestion was made, this conversation was not [emphasis added by Fitzgerald] moved to the Big Ten portal.”

“President Schlissel takes seriously his obligation under the Michigan Freedom of Information Act and regularly provides email messages and other documents as required by law.”

“Please make sure any reporting you do about this is accurate.”

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.