FOIA fight: Attorney urges court to reject University of Michigan secrecy claim

Dispute over access to records could set precedent in Michigan

HEMLOCK, Mich. — A Mid-Michigan law firm has filed a formal response with the Michigan Supreme Court opposing the University of Michigan’s request to be declared constitutionally exempt from the state’s Freedom of Information Act.

In a May 8 filing, attorney Philip L. Ellison of Outside Legal Counsel PLC argued the university is seeking “institutional immunity from public accountability dressed in the language of academic freedom.” Ellison represents FOIA requester Hassan M. Ahmad in the case.

The university, in a March application for leave to appeal, has asked the court to find that Article VIII, Section 5 of the Michigan Constitution exempts its governing board, the University of Michigan Board of Regents, from generally applicable transparency laws enacted by the Legislature. Ellison’s filing states that no Michigan court has previously recognized such a doctrine.

The case, Ahmad v. Regents of the University of Michigan, began nine years ago when Ahmad, an immigration attorney, filed a FOIA request seeking eleven boxes of documents held at the university’s Bentley Historical Library. The materials were donated by Dr. John Tanton, a Northern Michigan ophthalmologist described by the Reagan administration as “the most influential unknown man in America” for his role in shaping U.S. immigration policy.

According to Ellison’s filing, the university accepted the papers as a public institution but later declined to release them, citing a private agreement that purportedly restricts access until 2035.

The Michigan Court of Claims and the Michigan Court of Appeals both ruled in favor of disclosure. After multiple court-ordered indices and an in camera review of sample documents, the Court of Claims found the records “devoid of intimate, embarrassing, private, or confidential information.” The university has not released the records and has instead pursued further appeals.

Ellison’s filing also highlights what he describes as an inconsistency in the university’s position, noting that the university maintains a FOIA office, publishes procedures, and has processed FOIA requests for decades.

“Only after losing countless arguments over nine years did the University suddenly discover that FOIA itself is supposedly unconstitutional,” Ellison said. “That is not principle. That is litigation opportunism.”

In addition to opposing the university’s appeal, Ellison filed a conditional cross-application asking the court to reconsider two legal doctrines he says have been used by public bodies to avoid transparency requirements.

One doctrine, stemming from Residential Ratepayer Consortium v. Public Service Commission, allows public agencies to raise new FOIA exemptions during litigation that were not included in their original denial. Ellison called it “the functional equivalent of a legal mulligan,” arguing it forces requesters into costly lawsuits.

Another, based on Local Area Watch v. City of Grand Rapids, has been used by courts to deny punitive damages to FOIA requesters despite a 2014 legislative change that states courts “shall award” such damages in certain cases.

“FOIA was written to make government accountable to the people,” Ellison said. “Public records do not become secret because a private donor wished it so.”

The University of Michigan has argued that certain records are exempt from disclosure and that constitutional protections apply to its governance. The Michigan Supreme Court has not yet decided whether it will take up the case.