By John Irwin
How open and transparent is Central Michigan University?
That apparently depends in part on how much money one is willing to spend.
After a request letter, two formal responses, several email exchanges and roughly one month of time, lawyers for CMU agreed to release to the public all Freedom of Information Act requests it had received since 2011 and its responses. The goal was to determine how the university responds to requests from the press, students and taxpayers for public information.
The university agreed to release those records, but there was a catch: CMU Insider would have to pay $1,044, which would go to pay a legal assistant to look over documents that have already been released to the public.
Insider filed a FOIA request on Oct. 28 asking for those copies or an opportunity to examine the records. Click here to see the request in full.
After requesting an extra two days to process the request beyond the five days required by the state’s freedom of information law, the university responded via a letter signed by CMU Freedom of Information Officer Mary Roy.
“[T]here are over 400 requests in that time frame,” the response authored by CMU Freedom Information Officer Mary Roy reads in part. “The most efficient way to provide the requested records is to copy them to a CD/s, however they must be reviewed first. It was difficult to assess the amount of time that might be needed for that review — by our legal assistant, the lowest paid employee capable of doing the work — given that some of the files are more voluminous than others. A conservative estimate of the time that review will take is 40 hours at $26.10/hour. Therefore, the total estimated cost is $1,044.00.”
On Nov. 10, Insider inquired via email, by request, about the validity of having a member of a legal team review documents already in the public. From a legal perspective, there is little that needs to be reviewed. Any information the university deemed worthy of public release was sent to a member of the general public, and Insider did not request an opportunity to review any documents granted by any FOIA requests but only the university’s response to them.
Several weeks later, after an assistant in the general counsel office spoke with a team of attorneys before drafting a response that was then reviewed by those same attorneys, the university responded to the request. CMU upheld the fee, arguing that such a wide range of documents requires extensive review. More:
Many public records requests received by the CMU Freedom of Information office were easy to respond to as they may have requested a single public record, but other freedom of information requests for public records required substantial quantity of time to process because of various factors … In addition, some freedom of information record requests required CMU to take extensions of time to respond because of the quantity of records requested or the nature of the records requested (i.e., records that may have required redaction, etc.) … Therefore, since many public records requests are complex, so too is assembling the various responses; in other words, responding to your request is not as simple as sending you “X” request and “Y” response on a CD as this will certainly not meet your stated objective.
Michigan’s public information law, while weak in practice, is written to bend toward openness and transparency.
“It is the public policy of this state that all persons, except those persons incarcerated in state or local correctional facilities, 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, consistent with this act,” the law reads in part. “The people shall be informed so that they may fully participate in the democratic process.”
It is unclear, then, why CMU’s public records policy seems to be one that steers not in the direction of openness but in favor of secrecy. Repeated requests for interviews with CMU’s legal team to discuss that and other issues over the last several months have been turned down in favor of email exchanges that can be easily monitored.
As it stands, the high fee will prevent Insider from examining the university’s FOIA record. As previously reported, CMU, as with many other public institutions, has abused the Family Educational Rights and Privacy Act, a federal law designed to keep students’ academic records private. The university has broadly construed what an academic record qualifies as, as it did when it previously denied releasing information surrounding CMU running back Thomas Rawls’ arrest and suspension. It is unclear how frequent that abuse is, however, and examining the university’s public information record would paint a clearer picture.
Frank LoMonte, executive director of the Student Press Law Center, said the university’s stated reasoning for the fee is “excessive,” as there was no request to review or inspect the actual public records made available under the request. Since that information has already been made public anyway, he said there is little reason for the university to have to request a fee for so much work.
“It just seems completely unnecessary to me,” LoMonte said. “So often you see universities put such high fees on requests in order to keep these documents in the dark.”
LoMonte put part of the blame for universities using fees as a de facto denial on Michigan’s FOIA law, which he said is open to wide interpretation.
“We seem to get a lot of phone calls for freedom of information help from Michigan,” he said.
Still, it is unclear why a public institution funded by taxpayers and student tuition fees to operate in such a nontransparent manner on a regular basis. And until the university opens up its records policy, the citizens that fund the university’s operations will remain in the dark.
John Irwin is the founder and editor of CMU Insider.