University of Michigan Asks State Supreme Court to Declare Itself Above Michigan’s Transparency Laws

The Hemlock, Michigan based law firm of Outside Legal Counsel PLC today filed an formal answer with the Michigan Supreme Court opposing the University of Michigan’s extraordinary recent request that the State’s highest court declare the Regents of the University constitutionally immune from Michigan’s Freedom of Information Act.

The University’s position, advanced in its March application for leave to appeal, asks the Court to hold that Article VIII, § 5 of the Michigan Constitution exempts the Regents from generally applicable transparency statutes enacted by the Legislature. No Michigan court has ever 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 Freedom of Information Act request seeking eleven boxes of papers held in the University’s Bentley Historical Library. The papers were donated by Dr. John Tanton, a controversial Northern Michigan ophthalmologist whom the Reagan administration described as “the most influential unknown man in America” for his role in shaping United States immigration policy. 

The Court of Claims and Court of Appeals both sided with Ellison’s arguments and ordered disclosure. After four court-ordered indices and an in-camera review of representative samples, the Court of Claims found the records “devoid of intimate, embarrassing, private, or confidential information.” The University has not complied with the disclosure order and instead pursued multiple appeals.

Ellison’s filing today emphasizes a critical inconsistency in the University’s position: the University maintains a dedicated FOIA office, publishes FOIA procedures and guidelines, processes FOIA requests, and litigates FOIA exemptions on the merits. It has done so 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.”

The Answer also asks the Michigan Supreme Court, through a conditional cross-application, to throw out two long-misused doctrines that public bodies routinely deploy to avoid transparency obligations under Michigan FOIA.

The first, traced to Residential Ratepayer Consortium v. Public Service Commission, allows public bodies to invent new FOIA exemptions for the first time in court — long after they were statutorily required to assert them in their written denials. The doctrine has been followed by Michigan courts for nearly forty years despite having no foundation in the FOIA statute itself

“It is the functional equivalent of a legal mulligan,” Ellison said. “A public body can issue a deficient denial, force the requester to file an expensive lawsuit, and then have its trial lawyers manufacture entirely new exemptions the FOIA Coordinator never raised. That is not what the Legislature wrote. It is what the courts let happen.”

The second, Local Area Watch v. City of Grand Rapids, has been used by Michigan courts to deny punitive damages to FOIA requesters even after the Legislature, in 2014, replaced judicial discretion with mandatory language: “the court shall award.” Panels of the Court of Appeals continue to apply Local Area Watch as though the 2014 amendment never happened.

“FOIA was written to make government accountable to the people,” states Ellison. Public records do become secret because a private donor wished it so.” 

The University’s appeal now awaits a decision by the Michigan Supreme Court on whether leave to appeal will be granted. Whether it will take the case or not will be decided in the coming months.