Supreme Court splits on UM public records denial, lets FOIA fight proceed

Beth LeBlanc
The Detroit News

The Michigan Supreme Court deadlocked Friday on whether records in possession of the University of Michigan library are considered public record regardless of what guarantees the university made regarding their release. 

The 3-3 split affirms by default a lower court ruling that allowed an immigration lawyer to proceed with a public record request seeking documents donated to the library by a well-known anti-immigration activist. However, it is likely the university will invoke a privacy exemption under the current public records law, which will now be subject to arguments in Michigan's Court of Claims.

A Michigan public records fight centers around private documents that anti-immigration activist John Tanton of Petoskey gave to a University of Michigan library under an agreement that promised to keep some of them out of public view until 2035.

We're offering a great deal on all-access subscriptions. Check it out here.

After four years of litigation, Friday's decision puts the plaintiff back in the courtroom to continue arguing his case in court, said Philip Ellison, the lawyer representing immigration attorney Hassan H. Ahmad.

"It opens the courthouse doors for access to papers that are trying to be kept out of the public by secret agreement," Ellison said, noting his client still had a long road ahead.

"I have a distinct feeling that it's going to go back to the Supreme Court," he said. "I expect the university is going to fight us all the way back up there again.”

The University of Michigan said Friday it was "studying the opinion."

"Being able to preserve the non-governmental papers of private donors, at least for a period of time, is fundamental to our academic mission and to furthering our understanding of state history," UM spokesperson Kim Broekhuizen said. 

The case arose when Virginia-based immigration attorney Ahmad submitted a public records request in 2016 for 25 boxes of documents donated by anti-immigration activist Dr. John Tanton in 2010 to UM's Bentley Historical Library.

Tanton donated the documents on the condition that 10 of the 25 boxes remain under seal until 2035. Tanton died in Petoskey in July 2019.

The university denied Ahmad's public records request through 2035 because of the privacy contract, arguing that the documents aren't subject to the public records law because they are still private.

The court's deadlock saw Democratic-nominated justices Bridget McCormack, Elizabeth Welch and Megan Cavanagh side with the university's argument that the documents were not public record. Republican-nominated justices David Viviano, Brian Zahra and Elizabeth Clement said they would not have heard the case in the first place because of a separate argument in the case.

Justice Richard Bernstein did not participate because of his brother, Mark Bernstein, is on the UM Board of Regents.

Viviano said he was "inclined to believe" the appellate court reached the correct result, but he said would have delayed Supreme Court consideration of the case until the courts had also ruled on whether Tanton's information would fall under a personal privacy exemption under the public records law. 

"Rather than resort to the broad purposes behind FOIA to determine the definition of 'public record' and resolve the case today, I would wait until we could assess whether the materials here, even if deemed public records, fall within FOIA’s personal-privacy exemption," Viviano wrote.

In a dissent, McCormack said the records should not be considered public just because they are in the possession of a public university. The state's Freedom of Information Act is meant to shed "light on the workings of the government," not the personal writings of a private individual who had entered a limited-use agreement with UM, she wrote. 

The Court of Appeals used "bad logic" in concluding that a private donor's writings are public when  they're in the possession of the library since "an official function of a library is collecting and preserving archival materials," McCormack said. The documents do nothing to expound on the official functions of the library, she wrote.

"To compel the Bentley Library to disclose a private donor’s writings would shed as much light on the affairs of government as requiring the nearby Ann Arbor District Library to disclose its copy of 'Goodnight Moon' pursuant to a FOIA request," McCormack wrote. "Neither disclosure would tell the public anything about the government entity housing the writing."

The Bentley Library is furthering efforts to collect and preserve information for future public access by entering agreements like the one they entered with Tanton, she said. 

"If Michigan’s public institutions can’t honor donor agreements, some people may simply opt to donate to private or federal archives," wrote McCormack, who is also a UM adjunct clinical assistant professor of law. "But capacity is limited, and many will instead withhold, censor, abandon, or even destroy historically significant documents."