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University letter about project overruns exempt from release

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NEWS MEDIA UPDATE   ·   MICHIGAN   ·   Freedom of Information   ·   July 25, 2006

University letter about project overruns exempt from release

  • The state high court endorsed a standard of review in public records cases that gives more deference to lower court discretion than to the appellate court’s interpretation of whether the records should be made public.

July 25, 2006  ·   A letter between two public university officials about cost overruns on a university project can remain secret because it is “frank communication” under state public records law, the Michigan Supreme Court ruled Wednesday, affirming a lower court.

In ruling for Eastern Michigan University, the court refined the legal standard for reviewing lower court decisions related to the Michigan Freedom of Information Act. The high court, by a 4-3 vote, established that FOI decisions should be reviewed by weighing whether a lower court abused its discretion in deciding whether the information requested should be public.

The decision came in a case involving a letter requested by The Ann Arbor News and Booth Newspapers about construction of a $5 million house for University President Samuel A. Kirkpatrick, who has since left the school.

At issue was a letter written by then-Vice President of Finance Patrick Doyle to Jan Brandon of the university Board of Regents containing responses to Brandon’s questions about construction of the University House.

Under Michigan’s records act, if a potential record is considered a “frank communication,” courts must apply a balancing test weighing the public interest in protecting such communication against the public interest in disclosure. Frank communications are records created by public bodies that are advisory, involve more than factual matters, and are preliminary to a final decision. In this case, the Washtenaw County Circuit Court ruled the interest in protecting the frank communication was paramount.

A split Michigan Court of Appeals affirmed, and the high court ruled that the lower court did not abuse its discretion. While the court did not express its full support of the decision to shield the letter, it found the ruling within the “principled range of outcomes” and thus the lower court’s decision should stand.

“That a frank communication contains criticism of a public official or a public body, which is unremarkable considering that these are frank communications, certainly factors into the balancing test, but it cannot singularly serve to outweigh the public interest in disclosure,” Justice Robert P. Young Jr. wrote for the court. “Were we to adopt such a rule, we would eviscerate the frank communication exemption. We doubt that officials within a public body would offer candid, written feedback, or that they would do so for very long.”

The Supreme Court recognized that the lower court’s decision was controversial.

“But a circuit court is permitted to reach a controversial conclusion with which reasonable people and reasonable appellate courts may disagree without abusing its discretion and reaching a result outside the principled range of outcomes,” Young wrote.

The court returned the case to the circuit court to separate exempt material from other materials requested by the newspaper that are public records.

Matthew E. Krichbaum, attorney for the Herald Co., which owns both Booth Newspapers and The Ann Arbor News, said despite the loss the ruling clarifies the standard in such cases, though he expected the impact of the new standard to be limited. Still Krichbaum found some positives in the ruling.

“[The court] does recognize that the Legislature has tilted this particular exemption in favor of disclosure,” he said.

Justice Michael F. Cavanagh dissented, calling the majority correct on stating the law, but wrong on applying it to the facts in the case. Cavanagh disagreed with revising the standard of review and also the result. “Not only does the majority neglect the fact that the defendant offers nothing but mere platitudes to support its position, it uses these platitudes in an attempt to bolster its analysis,” Cavanagh wrote. “Based on the facts of the case, defendant has not met its burden . . . and the trial court abused its discretion when it held otherwise.”

(Herald Co. Inc. V. Eastern Michigan University Board of Regents; Requester’s counsel: Matthew E. Krichbaum, Soble Rowe Krichbaum, Ann Arbor, Mich.)PS

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