Nassar scandal clogs FOIA office at Michigan State, impeding access to public information

By Sarah Lehr
Lansing State Journal
May 30, 2018

https://www.freep.com/story/news/2018/05/30/michigan-state-larry-nassar-scandal-public-records/637494002/

A man walks on Michigan State University's campus in East Lansing in 2017. Photo by Julia Nagy

The case of Larry Nassar, a serial sexual abuser and a former physician with Michigan State University, has attracted scrutiny about what MSU officials knew and when.

At the same time, it has become more onerous for journalists and concerned citizens to access public records from the university.

The Michigan Freedom of Information Act allows access to documents from public institutions like Michigan State.

Since news of the allegations against Nassar broke, FOIA requests to MSU have increased exponentially. But, staffing levels have not kept pace with the demand, leading to longer wait times for public information.

And, on average, the university is requesting higher fees to fulfill FOIA requests, although amounts vary based on complexity of the request.

"On any given day one request may result in several thousand pages from multiple areas on campus requiring dozens of hours of work, while another is just few pages taking less than two hours," Emily Guerrant, an MSU spokeswoman and vice president, wrote in an email.

MSU officials say the university is taking steps to alleviate its FOIA bottleneck.

Currently, MSU employs one part-time FOIA officer, who is an attorney, to oversee three full-time employees.

"We recognize that sometimes our timelines for processing requests are not ideal, but we are doing the best we can with our available resources," Guerrant wrote in an email.

The university is looking to hire two more full-time FOIA employees, Guerrant said. Last month, MSU contracted with an outside law firm, Foster Swift, to assist with "FOIA matters."

Additionally, MSU hired three law students this semester to work part time on FOIA requests. Several interns also will help part time with FOIA responses this summer.

Even so, the staffing increase may not be sufficient to keep pace with a dramatic uptick in requests. 

In 2015, MSU fielded 438 requests.

FOIA request numbers held constant in 2016 compared to the previous year. The Indianapolis Star published the first news story about allegations against Nassar in September 2016.

In 2017, the number of requests nearly doubled at 812.

And requests are on pace to double again in 2018. As of May 23, MSU had received 628 FOIA requests, the vast majority of which relate to Nassar.

International media attention reached a fever pitch at the start of this year, when hundreds of Nassar's victims confronted the former physician during his sentencing hearings in Ingham and Eaton counties.

Larry Nassar's criminal cases end with Eaton County sentence

The university announced a $500 million settlement with 332 Nassar victims on May 16, bringing a major chapter of the scandal to a close.

But MSU's involvement in the story is far from over. A Michigan Attorney General's Office investigation into sexual misconduct at MSU is ongoing and Nassar's former boss is facing his own criminal charges.

Lisa McGraw, public affairs manager for the Michigan Press Association, believes MSU has a public-interest obligation to keep up with the increased FOIA demand.

"FOIA is an essential service of government, much like police and fire," McGraw said. "If there's a big, five-alarm fire, you're not going to just send one fire truck because that's what you did for other calls. You're going to increase your response."

During the first four months of 2017, MSU's estimated time to turn over the requested public records averaged 4.5 weeks, according to a State Journal analysis of letters the university sent to people who made requests. That was on top of the 15 business days that consistently elapsed between the filing date and MSU's letter estimating fees and a timetable.

That delay stretched to an average of more than 6 weeks between January and March 7, 2018, the State Journal's analysis found.

Actual wait times were often much longer. More than a dozen FOIA requests filed by LSJ reporters have been extended beyond the original estimated delivery date, and in a few cases the revised delivery date was pushed back a second time. 

For more extensive requests, MSU often uses a two-tier processing system. The first tier involves a fee and time estimate only to identify whether the requested records exist. If they do, the second tier involves another charge and another waiting period to allow MSU staff to review the records and redact any information exempted from disclosure.

Compared to the first four months of 2017, the start of 2018 saw fee estimates that increased almost five-fold from an average of about $190 to roughly $900.

The estimated cost to search for records  — typically, a fraction of the total fee — more than doubled from about $70 to $160.

Frank LoMonte, director of the Brechner Center for Freedom of Information at the University of Florida, questioned whether MSU's search fees, in particular, might be inflated. 

Many media outlets asked for similar, if not identical, records, such as emails from former MSU President Lou Anna Simon that contain the words "Larry Nassar."

"I find it hard to believe that MSU doesn't already know exactly what Nassar emails are in existence," LoMonte said. "If anything, they've already gathered those records for defensive purposes."

Michigan law allows agencies to charge fees to offset the cost of completing a request. Labor costs cannot exceed the hourly wages (plus fringe benefits) of the lowest-paid employee who is capable of the work.

In 2017, MSU collected $9,361 in FOIA fees, a 48% increase over 2016.

MSU's FOIA office is not a money-maker for the university. 

The fees paid by requesters go into the $1.36 billion general fund, which is the fund that pays for FOIA office operations.

MSU's current budget for its FOIA office is $140,268, a $10,979 increase over the previous fiscal year.

MSU Trustee Brian Mosallam said he will push for funding to increase FOIA staff.

Mosallam released a "New Day MSU" plan earlier this month, calling for greater transparency.

"Public universities should be places for debate and the free exchange of ideas," said Jane Briggs-Bunting, former chair of MSU's School of Journalism and founding president of the Michigan Coalition for Open Government. "You're running counter to that ideal when you make it more difficult to access public information."

LoMonte suggests that MSU re-evaluate its budget priorities.

"It's telling when universities encounter a crisis and the first they do is turn around and hire a high-priced PR firm," LoMonte said. "Then, they claim they can't fund the FOIA office at a reasonable level."

MSU has spent at least $1 million on public relations firms to help manage its response to the Nassar scandal. The university also has spent more than $11.3 million on its legal defense against Nassar-related lawsuits.

As allowable under Michigan law, MSU typically requires half its total estimated fee up-front before completing a FOIA request.

In some cases, MSU ended up assessing a final fee that was less than the university's initial estimate.

Nonetheless, LoMonte said estimates are significant because high costs and long wait times could deter people from pursuing public records.

"Without FOIA, government is basically operating on the honor system," LoMonte said. 

Several of the most damning facts about MSU's response to Nassar's conduct came to light through FOIA.

The Lansing State Journal used FOIA documents to reveal that MSU let Nassar see patients for 16 months while Nassar was still under criminal investigation.

Other FOIA requests showed that MSU withheld key information from one of Nassar's accusers when university lawyers produced two versions of a 2014 Title IX report.

McGraw, of the Michigan Press Association, said FOIA is essential to the watchdog role of the press.

Yet the law extends beyond the news media, she said. Any member of the public may file a FOIA request.

"Transparency benefits everyone" McGraw said. "If I was a parent paying MSU tuition, I sure would want to know where my money is going."