ESPN prevails in FOIA dispute with MSU

Michigan’s Supreme Court in late December rejected an appeal request by Michigan State University in a lawsuit filed against the school by ESPN to block access under the state Freedom of Information Law to names of athletes and former athletes named in on campus police incident reports.

That means MSU must turn over the names of athletes to ESPN just like other Big Ten school did previously without litigation. Consider it a rare Christmas present for transparency at a public university.

Justice Stephen Markam’s dissent to the appeal denial is cause for worry, however. In his opinion, he argued the case should have been accepted for Supreme Court review. Implicitly, he telegraphs that he would continue the erosion of transparency in government operations at universities. He raises the decades, old outdated concept of in loco parentis by universities of their students. As for the “nurturing ” role of public universities, he must be somehow unaware these individuals are legally adults under Michigan law and that under federal Family Educational Rights and Privacy law (FERPA– even tuition paying parents can’t get any records of their kids without said child’s permission.

He further references a previous supreme court decision, Federated Publications Inc. v MSU Board of Trustees (594 NW 2d 491, 460 Mich. 75) which asserted that since some of Michigan’s public universities are constitutionally created, in a separation of powers argument, all public university boards are exempt from the state’s Open Meeting Act. Justice Markham evidently thinks that these public boards and taxpayer funded institutions should be exempt from the Freedom of Information Act, as well. Citizens and universities have been tiptoeing around this the FOIA issue since Federated came down in 1999. That is even more worrisome.

Since 1999, Michigan’s 15 public universities’ boards have been operating in secret meetings, lunches, dinners, breakfasts and retreats. They hold meetings in public only because the state Constitution mandates it for so-called “formal sessions.” Those public sessions that used to run hours before that 1999 decision when board members would thrash out issues in full view, now are relatively brief with large consent agendas and little if any open discussion on issues like tuition, budgets, fees, etc. Though the Federated case should have been limited to presidential searches, sloppy (or maybe deliberate) language in that decision lead to a virtual shut down of transparency and accountability at the board level of public universities statewide. One dissenter justice predicted this could happen and it did.

The Detroit Free Press is challenging this behavior in a lawsuit against the University of Michigan Board of Regents (COA Case Number: 328182). The Free Press lost in the Court of Claims but has appealed. That case is now pending.

An example of the problem was illustrated at public Oakland University in November. At the November 2015 board meeting, the board surprised a lot of those attending, including its own students, faculty and staff, by approving a new executive position on campus, Chief Operating Officer, for a generous $325,000 salary plus  benefits (which usually include a car, health care, retirement and other perks along with additional staff support), and hiring a board member, Scott Kunselman, as the COO. Kunselman had resigned from that body just two days previously. OU (like almost all of the other state public universities) has never had a COO before. All discussion and justification for the need for the position, the salary and the person hired was handled in secret. OU’s President, George Hynd, who had told faculty and students when interviewing for the job in 2014 that he believed in transparency, subsequently apologized for the secrecy, but he did it anyway.

For now, ESPN should get the records from the MSU campus police. Had these incidents occurred across the street from campus, city police would have turned over the records with no fuss months earlier.

Kudos ESPN, and good luck Detroit Free Press.

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