UM tells Supreme Court anti-immigration activist's documents not public records

Beth LeBlanc
The Detroit News

Records given to a University of Michigan library under a contract guaranteeing their privacy should not be subject to a public records request because they don't shed light on the university's operations, a UM lawyer told the Michigan Supreme Court Wednesday. 

But a lawyer seeking access to the documents argued they do shed light on government operations. The university, he said, is attempting to have the Supreme Court create an exemption in Michigan's public records law where none exists and where the Legislature has declined to create one.  

"This case has been pending for three years. ... The Legislature knows how to change the law to support this and they just haven’t," lawyer Philip Ellison said. "...This court can't create that exception; the Legislature has to."

The Michigan Supreme Court listens to arguments Wednesday, Jan. 6, 2021, over whether documents donated to the University of Michigan under a privacy agreement should be subject to a public records request.

The documents donated to UM's Bentley Historical Library by anti-immigration activist Dr. John Tanton are not public records since they lack two key markers required under Michigan law, said Adam Unikowsky, a lawyer for UM. 

"They’re Mr. Tanton’s private records," Unikowksy said. "They’re only being stored by the government. They don’t shed light on government activity.”

The Supreme Court heard arguments from UM and the man seeking the records, Virginia-based immigration attorney Hassan M. Ahmad, over Zoom Wednesday afternoon to decide a case that could alter universities' public records compliance in the future. 

Democratic-nominated Justice Richard Bernstein recused himself from the case. His brother, Mark Bernstein, is on the university's Board of Regents.

The case stems from Tanton's 2010 donation of 25 boxes of his private papers documenting his work with the Federation for American Immigration Reform to UM's Bentley Library on the condition that 10 of the boxes remain under seal until 2035. Tanton died in Petoskey in July 2019.

In 2016, Ahmad requested access through the Freedom of Information Act to the documents but the university denied Ahmad's request through 2035 because of the privacy contract.

UM argued its 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. Federal courts have protected documents stored by the National Archive. 

Republican-nominated Justice David Viviano questioned the applicability of that federal precedent. 

"The federal statute is a lot different than our statute," Viviano said. "...That's given the federal court I think more range than we have.”

Unikowsky argued that if Ellison's argument were to stand, "virtually every single document the government holds onto would be considered public record.”

"The document has to shed light on the affairs of Michigan government" in order to be considered a public record, Unikowksy argued. 

But Ellison argued that Tanton petitioned and influenced government policy and that context also would make his documents, in the possession of a public body, subject to a public records request. 

Ellison asked the high court to send the case back to the trial court so that the parties could move beyond the question of whether the documents are public and look instead at whether an exemption in the public records law applies to the specific documents. 

"The tougher question and the question that is trying to be avoided is if this fits an exemption," he said. 

Unikowksky argued that the university, if sent back to trial court, would likely plead a personal privacy exemption on behalf of Tanton's documents. 

"We’d certainly go back to the trial courts to assert exemptions." But, he said, "we think this case shouldn’t even get there because as a matter of law because it's not a public record.”