The University Record, September 21, 1992

FOIA: It covers more than you might think

By Jane R. Elgass

Remember those notes you took at a meeting on your feelings about a sensitive issue and tucked under some papers in your top drawer instead of in a file so they wouldn’t be subjected to public scrutiny?

Sorry. That tactic won’t work.

Under the state’s Freedom of Information Act (FOIA), enacted in 1977, “...all persons are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and public employees, consistent with this act. The people shall be informed that they may fully participate in the democratic process.”

As a public institution, the University and all of its employees are subject to the act, says Virginia B. Nordby, the U-M’s freedom of information officer.

Nordby has been running a one-person campaign to educate faculty and staff about the implications of the policy since appointed to the post in 1988.

“All records, anything recorded in any medium by anyone in connection with their University function is open to the public,” Nordby states.

“Many people don’t realize that anything they do in the course of fulfilling their professional responsibilities is subject to public scrutiny. I tell them that because so many University records are subject to disclosure, they should be mindful of potential public dissemination when drafting a document. They should make a knowing decision as to whether a document needs to be retained, particularly drafts of documents and opinions and evaluations that are extraneous to a document’s purpose.”

This includes anything handwritten, typewritten, photographed, photocopied, on tape, disk, microfiche, microfilm, or any other means of recording, according to General Counsel Elsa K. Cole.

“The form that a record is kept in does not prevent its disclosure,” Cole explains. “Additionally, stamping or labeling a document ‘confidential’ has no effect under this act. Keeping a document in an office desk rather than an office file does not exempt it from disclosure, and the University cannot destroy a document once it has been requested.”

Cole notes that the University is not required to create a document if one does not exist. For instance, all the pieces of information might be in a database but not in the form the person requests. “We aren’t required to create a new report or compilation.” She also notes that any FOIA request must describe a record with sufficient specificity so that it can be located.

There are some exceptions allowed by the act, but Nordby says they are very narrow. “Public policy favors release. There are no implied exemptions,” she explains, “only those stated clearly in the law.”

Among the exemptions most frequently cited by the University:

—Protection of student records. “Students’ records are firmly protected by federal law,” Nordby states. “The only exception to that is any record of criminal activities, which is public also through police records.”

—Right to privacy. “This exemption is quite narrow,” Nordby says. “Material can be exempted only if release would constitute a wholly unwarranted invasion of personal privacy. It has to be a personal matter, not just sensitivity to a professional matter. For example, when asked to evaluate a program, a person might want their views to be considered private. But this argument won’t fly.”

Nordby says personnel files are not totally exempt either. “We have to find a privacy basis to justify an exemption. For example, individuals’ vitae, salary, appointment, course assignments and routine evaluations are non-exempt. Grievances are exempt.”

—Portions of preliminary and advisory memos between University officials prior to a final decision on a matter are exempt to the extent they do not cover purely factual items. Factual information in those memos, such as “...tuition equals XX dollars...” is not exempt.

Nordby also works hard to protect the research arena. “We are absolutely committed to maintaining confidentiality until research results have been peer-reviewed and published. We have to present arguments from several allowed exemptions since the law was not written to address this issue specifically.”

Nordby is the only person authorized to claim exemptions on behalf of the University. Generally she asks units to send her all files on the information requested. She determines what is exempt and works with the unit so they understand the issues and problems. If there is uncertainty on what can and cannot be released, Nordby consults Cole, who makes a final decision based on whether denial can be defended in court.

The law requires that exempt and non-exempt material be separated in released material. For instance, a name would be removed, but the discussion of unprofessional behavior of someone would be retained. Nordby and her assistant are responsible for deleting exempt information, a task that takes up about one-half of her assistant’s time.

Nordby notes that there is an “odd juxtaposition of FOIA and the Open Meetings Act, which really only covers Regents’ meetings.

“If a unit has a meeting in which minutes are taken, the minutes are subject to FOIA even if the meeting does not have to be open to the public under the Open Meetings Act. The minutes are not a preliminary/advisory document between officials, but a statement of fact. There’s no privacy involved because individuals attend the meeting in their professional roles.”

To hold down the number of requests for information, some individuals and groups subscribe to minutes of such meetings at a charge of five cents per page, an approach allowed under the act.

Materials released under FOIA cost 5 cents per page plus minimum wage for staff time to locate records and files. Material on tape or microfiche or materials that must be searched for at night are more expensive. If the cost is estimated to be $50 or more, a 50 percent good-faith deposit is required.