Court rules letter on university president's house not public

• When disclosure of a letter from one university official to another is likely to “hurt, not advance” the public’s interest, it can be withheld under the “frank communications” exemption of the state open records law, the Michigan Court of Appeals ruled.

Feb. 16, 2005 — A letter from an Eastern Michigan University official to a university board member responding to questions about the construction of the president’s house will remain secret, the Michigan State Court of Appeals ruled Feb. 10, upholding a trial court which affirmed the denial of the letter to The Ann Arbor News.

The 2-1 ruling labeled The News’ September 2003 request as “disclosure for disclosure’s sake” and said that to “make [the] letter public would likely hurt, not advance, the public interest.”

The letter was written by then-Vice President of Finance Patrick Doyle to Jan Brandon of the university Board of Regents and contained responses to Brandon’s questions about construction of the University House. University President Samuel A. Kirkpatrick, who has since left the school, was criticized for house construction costs.

The court ruled that because Doyle’s letter did not contain only “factual material,” it could fall under the exemption to the open records law that protects “frank communications.” Justice Henry William Saad wrote, “This exemption explicitly recognizes that there are special cases where nondisclosure better serves the public’s interest in good governance.”

Chief Justice William Whitbeck dissented, finding that in “construing the frank exemption of the [state Freedom of Information Act], the majority has posited a false choice between ‘good government’ on the one hand and ‘disclosure for disclosure’s sake’ on the other.” The decision to keep the letter secret “ignores the concept of accountability that is so essential to the process of governing,” he wrote.

Whitbeck said that there is an explicit standard to the frank communications exemption that information may be withheld only if the public’s interest in nondisclosure clearly outweighs the public’s interest in disclosure.

“The majority reaches the astounding conclusion that in Michigan the ‘public welfare’ — defined without regard to the particular circumstances of this case — is more important than public knowledge,” Whitbeck wrote.

The majority criticized Whitbeck’s dissent at length, saying it contained “misstatements, misapprehensions, and mischaracterizations.”

(Herald Company, Inc. v. Eastern Michigan University Board of Regents; Jonathan Rowe, Soble & Rowe, Ann Arbor, Mich.) — AB

© 2005 The Reporters Committee for Freedom of the Press

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