How ‘the public is priced out of public records’ by Michigan universities

By Anna Clark, CJR

In Michigan, transparency comes at a cost—and a seemingly arbitrary one at that.

The Society of Professional Journalists chapter at Central Michigan University recently conducted a FOIA audit of the state’s 15 public universities. It asked for a year’s worth of information on expenses from the university presidents and governing boards, and also police reports on campus sexual assaults. The goal: to compare how universities respond to requests for public information, and how much they charge.

No university denied the requests. But the price to fulfill all of them totaled more than $20,000. That ranged from Eastern Michigan University and two other schools that offered records for free, to the University of Michigan, where it would cost $2,774 just for presidential spending records. UM attributed that cost to its estimate that it would take 46.5 staff hours to search for records, and many more to review and duplicate documents.

In total, presidential expenses were the most costly records; it would take $10,750.93 to fulfill them all. Arielle Hines, president of CMU-SPJ and a senior journalism major, questioned the hours it would take to fulfill the requests. “What archaic system are you using?” she said. “You have to think they’d have some kind of auditing process for the president, and if not, that’s a bigger story.” (Incidentally, this isn’t the first time that Hines, the editor of CMU Insider, has pushed for more and better transparency at public universities.)

The universities also collectively charged $5,104.51 for sexual assault police reports and $4,759.54 for governing board expenses. Eight universities indicated that the requests would take more than a thousand hours to fulfill at up to $78 per hour. These are requests that Hines described, in a Bridge column, as “crafted specifically to make retrieval easy and to minimize ‘review.’” The audit, she wrote, demonstrated that “at too many public universities, members of the public are priced out of public records,” and “revealed a system largely hostile to any sort of reasonable openness.”

Student journalists on other campuses have conducted similar experiments that illustrate not only the costs of public information, but also the unpredictable rates. In 2011, The Michigan Daily, the campus paper at the University of Michigan (which I once wrote for), FOIA’d a year’s worth of information on parking tickets issued by campus police, and information about employee use of purchasing cards (PCards) from all the Big 10 universities. It found that most schools provided the information for free. Michigan State charged a total of $450. UM, on the other hand, charged $1240 for the ticket information, and “unspecified thousands of dollars” for PCard information.

Similarly, The Post at Ohio University led a statewide FOIA audit in January in which students from eight different campus papers requested, in person, identical information from 12 public universities. They did not identify themselves, and state law doesn’t require them to do so. Nearly half the requests were denied or obstructed.

David Jesse, higher education reporter at the Detroit Free Press, said that the CMU-SPJ experiment reflects his own experiences. His paper built a major investigation on charter schools (which often receive their charters from a public university) on FOIA requests, and its ongoing examination into campus sexual assaults relies on the same. The Freep also used FOIA to expose the Eastern Michigan University board’s reprimand of the then-president for a drinking incident.

“It’s often cost prohibitive for most organizations to pay for the material,” Jesse wrote in an email. “I happen to work for a media organization that has resources to pay, but even we get stretched when we get bills for thousands of dollars.”

That ultimately limits, or denies, public information to the reporters. Jesse said that he recently sent FOIA requests for emails and memos to one of the state’s large universities. He was warned of a big bill. Either the paper could pay it, or Jesse could truncate his request to cut the cost. He did the latter. “The problem is, what information am I missing because I limited the scope of what I was seeking in order to keep costs down?”

Sam Gringlas, a UM senior and former managing news editor at The Michigan Daily, said his paper ran into a similar wall when it FOIA’d information about the Department of Education’s Title IX investigation into UM’s handling of sexual misconduct cases. The Daily was told that it would cost thousands of dollars to fulfill their request. “That seemed like pretty much a huge fee that would eat into our budget significantly, so we went back through all the things on our list … and basically went shopping for documents. We can’t afford to get all we wanted.”

As it turned out, after paying one of two $445 fees for their pared down list, UM delayed the documents, and then ultimately rejected the FOIA request. (It refunded the money.) The paper’s appeal to the president’s office was also denied. The Daily ultimately ran a special report on sexual misconduct investigations at the university that relied on a narrative of a particular case, rather than on public documents.

In the wake of the Flint water crisis, there has been a renewed push for open records reform in Michigan, a state with a notoriously poor reputation for transparency. The CMU-SPJ report raises a new point of needed change. Not only is the plain cost of information eyebrow-raising, but so are the scattershot rates and response times—even for identical information requests.

“Most of the decisions made by Michigan’s universities are made behind closed doors,” Jesse said. “FOIA allows the public to see the information the decision makers are seeing.”

To make that happen, Jesse said, we need more than a legal change. “It will take a university willing to be a leader and adapt the spirit of the law, and not just the letter of the law.”

Gringlas echoed this idea. “In my ideal world, journalists would not have to pay money for FOIA costs; it would just be the university doing its duty as a public institution.”

By David Uberti, CJR

In early 2015, an anonymous source began forwarding German newspaper Süddeutsche Zeitung encrypted files from a Panamanian law firm specializing in offshore companies. The trove of documents kept growing, and eventually numbered in the millions. Seeking help to break down all the data, the Munich-based daily contacted a small investigative outfit in Washington that specializes in global analyses. The International Consortium of Investigative Journalists quickly organized nearly 400 journalists across 80 countries to jump on the story. 

The fruits of ICIJ’s labor since then became clear on Sunday, when it orchestrated the mass publication of a global leak investigation through more than 100 partners. The “Panama Papers” collectively reveal how that Panamanian firm aided global elites in sheltering wealth through offshore tax havens. Stories kept pouring out on Monday as governments began to respond. Spanish prosecutors have reportedly launched a money laundering probe, the Icelandic prime minister is fending off calls for his resignation, and China appears to be censoring coverage of those implicated. 

The project is a testament to ICIJ’s partnership model, which aims to maximize impact through inclusive global collaboration. Media partners around the world localized the Panama Papers for their respective audiences, while near-simultaneous publication of that work created a critical mass of coverage needed to drive discussion worldwide. Such joint efforts are also more resilient to government or corporate pushback in any particular country.

Global networks of any kind—and financial networks in particular—are inherently difficult for individual news organizations to cover. ICIJ responds with a global network of its own, a much-needed answer for stories that transcend borders and languages. Cash is universal, so it’s fitting that ICIJ attempted to match that ubiquity in order to broaden and deepen the Panama Papers’ impact.

How to maximize impact is the ultimate question for nonprofit investigative outfits. They take the time to dig deep into difficult stories, but a slower publishing schedule typically prevents them from building a large audience on their own. Partners oftentimes want exclusive work, meanwhile, limiting the net benefits of distributing the journalism elsewhere.

Nonprofit newsrooms have devised various models in recent years to address such questions, but few have managed to connect as consistently as ICIJ. A project of The Center for Public Integrity, the organization has become a go-to facilitator for such massive international leaks. Just last year, it organized the team that exposed how Swiss bank HSBC held money for arms dealers, tax dodgers, and other international criminals. 

The organization claims the Panama Papers “is likely the biggest leak of inside information in history”—11.5 million files mentioning 214,000 companies in more than 200 countries. (Edward Snowden chimed in to agree.) ICIJ acted as a sort of central communications hub as it proceeded to share the information with outside partners, as Wired reports:  

ICIJ’s developers then built a two-factor-authentication-protected search engine for the leaked documents, the URL for which they shared via encrypted email with scores of news outlets including the BBC, The Guardian, Fusion, and dozens of foreign-language media outlets. The site even featured a real-time chat system, so that reporters could exchange tips and find translation for documents in languages they couldn’t read. “If you wanted to look into the Brazilian documents, you could find a Brazilian reporter,” says [ICIJ Director Gerard] Ryle. “You could see who was awake and working and communicate openly. We encouraged everyone to tell everyone what they were doing.” The different media outlets eventually held their own in-person meetings, too, in Washington, Munich, London, Johannesburg and Lillehammer, Ryle says.

ICIJ journalists have produced big-picture text and multimedia pieces from the information. National and international media have further upped the pressure, spotlighting offshore connections from powerbrokers in Russia, the United Kingdom, Ukraine, Pakistan,Argentina, Brazil, and elsewhere.

This model of promiscuous collaboration and concurrent publication isn’t unique in the nonprofit world. California Watch, a project launched by The Center for Investigative Reporting in 2009, periodically blanketed the state with investigations in newspapers, radio stations, TV channels, and digital outlets. More recently, CIR received funding to essentially turn that model on its head, creating a self-contained platform for both its own reporting and partners’ work. Many other nonprofits, such as ProPublica, typically share work exclusively with partners. 

In an interview with CJR last year, former CPI head Bill Buzenberg highlighted both the promise and difficulty of bringing an ICIJ-type model to the United States:

So many stories aren’t just state stories or local stories. They’re national and international stories. And if you can create a coalition, or a consortium, to tackle it using the same data, you can have a much bigger impact and do a better job. Is it doable? Yes, I believe it’s doable. Is it a lot of work? Yes, it is, and it means giving up some central control in a way, too. I don’t know that American journalists want to work that way.

Only a handful of American-based organizations partnered with ICIJ on the Panama Papers, including McClatchy, Univision, and The Miami Herald. National outlets such as The New York Times and Washington Post—not part of ICIJ’s network—have begun publishing follow-ups.

Despite the lack of initial involvement with American media, the ICIJ-organized wave of stories made it stateside thanks to their collective digital reach. The organization’s model fills a pressing need on the international stage. With the Panama Papers, it should also be commended for the logistical feat of keeping more than 100 newsrooms organized—one is overwhelming enough.

By Jonathan Peters, CJR.org

Sunshine Week brought some welcome news for transparency advocates this year: Two state courts ruled, in suits brought by news organizations, that freedom-of-information laws require private entities to disclose their records if they perform a public function.

The rulings, which arrived last week during the annual effort to promote awareness of open government, took up one of the key recurring disputes in public-records law, and both resolved it in favor of greater access. Together, the cases provide even more evidence of judges breathing new life into the right to know.

In the first case, which CJR covered in July, the Chicago Tribune secured an order compelling the private foundation for the College of DuPage, a public school in Glen Ellyn, Illinois, to release a federal subpoena that it had tried to keep private. DuPage County Judge Robert Gibson’s ruling is believed to be the first of its kind in Illinois requiring the disclosure of records of a public college’s private foundation, according to the Tribune.

The paper began investigating the College of DuPage in January 2015, and its series, as of this writing, includes more than 100 stories on everything from prosecutors’ interest in the foundation to non-competitive contracts awarded to its board members. The lawsuit started after the Tribune requested, under the state public-records law, foundation and college documents related to their spending. The college initially said it didn’t have responsive records but later released some. The foundation refused to release anything, saying it was not a public agency.

The lawsuit ultimately focused on the Tribune’s request for a federal grand jury subpoena sent to the foundation. The paper argued that the college was using its foundation, housed on campus and staffed by college employees, “as an artifice to circumvent” the law. According to the complaint, “The foundation is mostly or entirely under the control of [the college, which] has been using the … foundation as an excuse or a subterfuge to shield its … records … from public view.”

The judge agreed. Although he held that the foundation was not a public body or a subsidiary of one, Gibson went on to find that it was contracted with a public body—the College of DuPage—to perform public functions, such as fundraising, and so records in its possession could be subject to disclosure.

“It is undisputed,” the judge ruled, “that the foundation is not merely soliciting donations from individual citizens and private corporations for the college educational programs, but the foundation also holds all private donations to the college, even those the foundation did not solicit. The [college] has no separate endowment, so all donations are routed through the foundation.”Supported by those findings, Gibson held that the federal grand jury subpoena was a public record and should be disclosed. The foundation, for its part, is considering an appeal. Its attorney also asked the judge to seal the decision—only to be denied.

“Certainly, the court’s not going to announce a decision in open court and then say the order is private,” Gibson said. “It will be a matter of court record and open to the public to review.”

In the second case, which CJR covered in February, ESPN and Outside the Lines reporter Paula Lavigne persuaded an Indiana appeals court to rule that the University of Notre Dame’s police department is a public agency and thus subject to the state public-records law. The case stems from Lavigne’s investigation of college athletes and the justice system, beginning in 2014. She wanted to know whether athletes receive favorable treatment during criminal inquiries, so she requested incident reports involving athletes from campus police departments at 10 universities—including Notre Dame, which refused to release anything.

In January 2015, Lavigne and ESPN sued Notre Dame in state court to compel the private school to release the documents, arguing that the department is a public agency because it exercises police powers granted by the state. They lost at the trial court. There, the judge held that lawmakers could—and perhaps should—declare that campus police at private universities are subject to public-records laws, but he ruled that the statute’s plain language did not support that conclusion. 

The appeals court, however, disagreed and found that it was “clear” that the private police department exercised “a public function,” because “police power is a sovereign power.” The court reasoned that the state had delegated to Notre Dame’s officers generally “[t]he same common law and statutory powers, privileges, and immunities as sheriffs and constables.”

With that in mind, the court remarked, “It would not be appropriate for the Police Department, having availed itself of its statutory right to exercise these public functions, to then be able to circumvent public records requirements to which all other entities exercising these same functions are required to adhere.”

The court remanded the case to the trial court for it to determine exactly which records must be released under the state records law; meanwhile, Notre Dame is preparing an appeal to the Indiana Supreme Court.

The Notre Dame case is one of several in recent years in which state courts have taken up the question of whether private-college police records are public. It’s notable that the Indiana appeals court cited a ruling by the Ohio Supreme Court, which also ruled for disclosure in a similar case last year. That suggests that at least some state courts may be coalescing around a common framework for this issue.

For the moment, though, the case’s impact is an open question—and not just because of the appeal. As the South Bend Tribune has reported (and editorialized), while the case was being argued in court, the state legislature overwhelmingly passed a bill setting specific public-records rules for private university police forces. That bill would make clear that information about incidents resulting in arrest or incarceration is public, but it would exempt private-college police from many of the disclosures required of other law-enforcement agencies. That would limit the effects of last week’s ruling.

But that’s not the last word in this matter, either. Gov. Mike Pence, who has until Thursday to decide whether to veto the bill, has expressed concern about it, saying that he has a “strong bias for the public’s right to know.” The bill’s lead sponsor, meanwhile, has said that even if the measure becomes law, a ruling for ESPN by the state Supreme Court would be reason to “re-examine” the issue to require more disclosure. Let’s hope that, come next year’s Sunshine Week, transparency advocates will still have reason to celebrate.

Update, 3/27: Pence vetoed the bill. “Limiting access to police records in a situation where private university police departments perform a government function is a disservice to the public and an unnecessary barrier to transparency,” he said in a statement, according to the Indianopolis Star.