Supreme Court to hear challenge to UM over anti-immigration activist's papers

Beth LeBlanc
The Detroit News

A case headed to the Michigan Supreme Court will test some limits of Michigan universities' obligations under public records law.

The new Democratic-nominated majority on the Michigan Supreme Court will hear arguments Jan. 6 in a case brought against the University of Michigan, seeking access to documents donated to the university's Bentley Library by an anti-immigration activist.

John Tanton, who has helped launch a dozen groups, is a study in contrasts.

The university denied a public records request for the documents because they were donated on the condition that they would remain closed to public viewing for 25 years. 

The Court of Claims sided with the university's argument that the documents didn't meet the definition of a "public record" because they were "privately-created documents that the university was storing under lock and key," UM said in its filing.

But the Court of Appeals reversed that decision because it deemed the documents "public record" because UM was storing them for official purposes. The university appealed to the Supreme Court to argue its case.

"Here, the university is doing nothing more than storing privately-created documents," UM said. "They were not created by the university, they were never used by the university, and they cannot conceivably shed light on the university's operations."

The university also is arguing that it has "autonomy from legislative interference" under the Michigan Constitution that should shield the public body from satisfying the public records request demanding access to the document.

"When the Legislature has enacted laws that encroach on a university’s constitutionally protected autonomy, this Court has intervened to 'jealously guard' the university’s powers from legislative interference,” UM says in its suit.

"Yet if the Court of Appeals’ decision is allowed to stand, FOIA would have the effect of rendering gift agreements like the one at issue here unenforceable. 

"That legislative encroachment on the university’s academic prerogative would create significant constitutional doubt," it argues.

The university is appealing to the Supreme Court because it does not want the Court of Appeals opinion to have a chilling effect on future donors' interest in providing private records of historical significance, said Rick Fitzgerald, a UM spokesman.

"That would negate FOIA’s purpose of enhancing public access to information and make it more difficult for scholars, students and the broader public to understand Michigan history, including its flaws and its challenges," Fitzgerald said.

A public body cannot violate public records law by entering into a contract that would prevent release of a document, lawyer Philip Ellison argued on behalf of Ahmad. 

Immigration attorney Hassan Ahmad with his attorney Philip Ellison and Washington, D.C., lawyer Humza Kazmi at the Michigan Court of Appeals in 2018.

"Prior binding precedent teaches that public bodies cannot use alternative arrangements or hide-the-ball techniques to turn public records into nonpublic records," Ellison said. 

Dr. John Tanton, an anti-immigration activist and founder of Federation for American Immigration Reform, donated 25 boxes of his private papers documenting his work to the university in 2010 on the condition that 10 of the boxes remain under seal until 2035. Tanton died in Petoskey in July 2019. 

Virigina-based immigration attorney Hassan M. Ahmad requested access to the documents through the Freedom of Information Act in 2016, but was denied by UM. He filed suit in 2017.

The library "routinely enters into such gift agreements" to mitigate harm to people still living while ensuring the public eventually will have access to the documents, the university said in its filing at the high court. Likewise, federal courts have protected documents stored by the National Archive.

"Numerous Supreme Court Justices, including Chief Justice Rehnquist and Justices Blackmun, Jackson, Scalia, and Souter, have donated their papers subject to similar conditions," the university wrote. 

If universities are effectively barred from such arrangements, the public would lose eventual access to important documents, the university said. 

The university essentially is arguing that there should be an exemption for donor documents in Michigan public records law, but the Legislature has not granted one, Ellison said. 

"Despite clearly knowing how to easily and quickly amend the FOIA statute when desired, the Legislature has silently rejected the University’s insistence for a new exemption for document donors’ papers," Ellison wrote. "This Court cannot itself create one from whole cloth." 

Besides that, the university has yet to prove an agreement exists between Tanton and UM to keep the documents sealed through 2035, Ellison said. 

"Maybe the donor agreement says what the university suggests it does; maybe it does not," Ellison wrote. "Maybe it does not even exist. The bottom line, however, is that it certainly is not part of this court record."

The university argued the court "does not need to see the gift agreement to resolve this case in the university's favor."

The Association of Research Libraries and several other library associations joined UM with an amicus brief arguing that the Tanton papers should not be considered public records.