Column: Close the FOIA loophole
The University of Michigan is a public entity, and its president a government employee. Taxpayers, who provide more than $1 billion to UM through state and federal spending, have a right to expect the school to treat all students fairly and not discriminate based on political beliefs.
So when UM President Mark Schlissel delivered a speech after last November’s election that was decidedly unfavorable to President Trump and disparaged his voters, reporters at Michigan Capitol Confidential, a news service run by the Mackinac Center for Public Policy, were interested in learning how that speech was developed. We filed a Freedom of Information Act request for all emails from the university president mentioning “Trump.”
There were 11 such emails, but instead of simply providing them, the university delayed the request for more than 100 days. A FOIA filed in November and paid on schedule didn’t produce any documents until March, despite the university indicating it would take fewer than three hours to complete the request.
And when the documents did arrive, only four emails were provided. The university denied the need to disclose the others, claiming they were exempt by law from being released. Believing that these emails were not, in fact, exempt and that the university violated the law by delaying their release, we filed a lawsuit against the university. UM settled the lawsuit recently and the documents were finally brought to light.
The newly released emails show Schlissel behaving in a partisan manner concerning the 2016 presidential election. Discussing an August convocation for new students — a few months before the election — he says he doesn’t want to “waste an important opportunity” to influence freshman who “are first time voters and thus special.” He also admits that he would “feel awful if Trump won the election.” After Trump’s election, Schlissel writes that he “can’t imagine lending one’s name to a Trump administration,” referencing faculty members potentially leaving UM for positions in the federal government. He added that he found it “ironic” that Trump supporters on campus feel marginalized by some of the university’s post-election actions.
Nevertheless, this lawsuit was not about Republicans or Democrats, or Trump and his supporters and detractors. It’s about a public entity delaying and denying documents that should be disclosed under Michigan transparency laws. This has become a common problem across the state.
In 2016, the Mackinac Center filed a separate lawsuit against the state of Michigan after the Department of Environmental Quality took four months to produce documents related to the Flint water crisis. This was a simple information request that, like the UM response, took very little time for the government agency to execute.
The DEQ and UM can wait months to deliver the documents because they are taking advantage of a loophole in state FOIA law. While the law states plainly that governments can take five business days to respond and ask for a 10-day extension to gather the information, the statute is silent about when they actually have to deliver the information. Other public entities around Michigan are taking advantage of this loophole and delaying the release of government data.
Government entities that stall and delay the release of public information are violating the FOIA law’s stated purpose. The law reads: “All persons ... are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and public employees ... so that they may fully participate in the democratic process.”
Lawmakers should close this loophole and clarify the maximum amount of time taxpayers can be allowed to wait on information from their government. A reasonable amount of time — like 20 business days — should be allotted public entities to gather the data, review and release it. State legislators should act now to enhance Michigan’s transparency laws.
Patrick Wright is the vice president for legal affairs at the Mackinac Center Legal Foundation. Jarrett Skorup is the marketing and strategic outreach manager at the Center.