University of Michigan is latest example of records loophole for colleges

ShredTo say that there have been problems reconciling university policy with state level lawmaking when it comes to public records would be an understatement. To say that the way schools align themselves with state laws on the matter is “bumbling” would also be putting it way, way softly. Take last year, for example, when an assault investigation at the University of Oregon lead to numerous public records requests that were so heavily redacted they were virtually useless. It was argued at the time that the redaction was excessive, but in the end the concerned parties had to be content with the half-attempt at compliance.

Now, the University of Michigan is finding itself in some hot water as well. Amongst the complicated resignation of former athletic director Dave Brandon, many of his decisions were called into question. What there isn’t room for much critique on, however, is Brandon’s response to public records requests – namely, that he never complied with them.

Now I know, I know, you’re probably wondering how a public institution, funded by the state – and therefore the taxpayers – is getting away with not adhering to public records law. It’s here that an ugly beast rears its head, and that’s the noticeable disconnect between state law and internal policy at institutes of higher learning.

In the case with Michigan, however, it goes even deeper than a refusal to hand over records; the problem was that the records didn’t exist in the first place. According to Michigan state law, public bodies are required to not only keep specific records, but they have to preserve and retain them for future viewing. According to the university, however, there is an understanding that internal and individual operations are exempt, and that the individuals themselves can decide how to document interactions and their outcomes, among other potential “records”.

Government officials, and concerned citizens, however, have a very different take. According to Frank LoMonte, executive director of the Student Press Center, any document created by a publicly funded employee is subject to the state’s “Sunshine” laws.

Whatever the right call is in this case, there’s no denying it’s an odd argument to make that some sort of ambiguous “internal” quality makes the action or record not subject to state law. In fact, it seems understandably bizarre to many that the practice isn’t simply called out as illegal.

The problem is that there seems to be a lack of explicit language for exactly what makes up the public record when it comes to these institutions. For example, even if, under state law, the actions of a public institution are considered public record, specificity isn’t there in many states. Does every action have to be documented? Sure, it makes sense that people would want to see where their money was going, so things like salaries and pay information are available, but how about internal communications? Does every email a member of staff sends to another person count? What if the other party isn’t subject to public records law?

While not all of these questions have clear answers, each conflict case with state schools is illustrating a need for them to be developed.