OLC Secures FOIA Win on the 25,000 Pages of the Tanton Papers; University Vows Appeal

For Immediate Release | February 22, 2025
https://olcplc.com/public/media?1740235111

After nearly eight years of litigation, two appeals to the Michigan Court of Appeals and a prior challenge to the Michigan Supreme Court, Outside Legal Counsel PLC has secured a final order that the University of Michigan violated the Freedom of Information Act. While the University has been ordered to turn over copies, the requirement has been stayed because the University has vowed a now third round of appeals.

OLC's attorney Philip L. Ellison represents Virginia immigration attorney Hassan Ahmad, the FOIA requester, who sought access in 2016 to and copies of the records. Under Michigan's Freedom of Information Act, public records must be open for inspection and copying.

Between 1984 and 2010, Dr. John Tanton donated 25 boxes of his personal papers to the Bentley Library's collection at U of M. Some label him an anti-immigration policy advocate. Others describe Tanton, a retired ophthalmologist and eye surgeon, as an insightful advocate against unending U.S. population growth.

Either way, the Michigan trial court described the legal challenge as concerning "whether the public is entitled to access thousands of pages of documents that Tanton donated [] chronicling his life and work." The sticking point was that Dr. Tanton had desired his papers in eight of the twenty-five boxes to remain closed for 25 years--similar to what happens with presidential records. OLC argued, and after year of litigation the Court also held, that cannot occur.

In a final judgment issued Friday, the Michigan Court of Claims ordered that the University shall produce and make copies available to Ahmad of all papers consisting of long withheld Boxes 15-25 of the Tanton Papers held at the Bentley Historical Library. The only exception allowed is certain medical information which the Court required withheld. The University's actually asserted excuses for not providing the records were rejected. The University argued that the papers in Boxes 15-25, despite being owned, maintained, and use by Bentley Library, should not be disclosed based on what it calls the "gift agreements." It also claimed the Michigan Community Foundation Act, the Library Privacy Act, and FOIA's personal privacy exception also precluded production.

The University was also assessed $1,000 in punitive damages, the maximum that Michigan's FOIA statute permits. It is expected that the Court of Claims will award attorney fees and costs for more than half decade of litigation.

But despite being a final order, access to the papers has not occurred because the prior judge in the case stayed the legal obligation to make copies until the University's threatened appeal is taken. OLC will be challenging the stay as improper.

The final order comes a year and half after now-former Chief Justice of the Court of Claims ruled in favor of Ahmad by adopting OLC's arguments rejecting University assertions. While more than 25,000 pages of records have been sought (and for years denied by the University) and now ordered released, the Court directed that the University may only "redact from the documents subject to production all healthcare-related information relative to Tanton's patients, friends, family, and correspondents, including the names and addresses of these individuals," but the balance must be produced.

Tanton passed away turning the pendency of the case.

A common misunderstanding permeates that governments can, by contract, give away the public's right to access and of copying. This case highlights that error. The result is a major victory for government transparency.

"There should be no such thing as secret documents in government libraries," states Philip L. Ellison, a FOIA attorney at OLC who is representing Ahmad. "It has taken years, but this precedent will hopefully be a clear message to other public entities who might try to take the same improper stance."

OLC has previously prosecuted other FOIA violations and obtaining reversals of access denials issued by public bodies, including recordings of prisoner telephone calls and the infamous Oakley Pay to Play policing scam.

###