Public records

Want to Donate Your Papers to a University, to Be Opened Some Years Later? Donate to a Private University, Not a Public One

|The Volokh Conspiracy |

That seems to be the implication of Ahmad v. Univ. of Michigan, decided a week and a half ago by a Michigan appellate court: Applying Michigan law, the court held that the papers were public records and therefore were presumptively open to the public, notwithstanding the condition in the donation that some of the papers remain closed for 25 years.

I can't speak to whether this is a sound interpretation of Michigan law, and it might be that courts in other states might reach a different result under their own states' laws. [UPDATE: I thought I'd switched the post from "scheduled" to "draft" while I was researching this, but I must have erred, and the post went up before I was done; I should add that some states, such as Georgia, Tennessee, and West Virginia, do have an exemption for this very sort of thing, though a donor or his lawyers would need to research this on a case by case basis.] Indeed, it's conceivable that on remand the trial court in this very case might find that some Michigan law exception applies, though I don't know of one in Michigan that would. But it seems to me that, to be on the safe side, donors who want to attach "sealed for years" conditions should generally donate to private universities (if they're willing to take the gift, of course) rather than to public ones.

Here's the factual backstory:

Dr. John Tanton—"an ophthalmologist and conservationist," according to the University, and "a figure widely regarded as the grandfather of the anti-immigration movements," according to plaintiff—donated his personal writings, correspondence, and research (collectively, "the Tanton papers") to the Bentley Library's collection. His donation included 25 boxes of papers, but boxes 15-25 were to remain closed for 25 years from the date of accession, i.e., until April 2035, purportedly in accordance with the terms of the gift.

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  1. Beginning with a general observation: this looks like another in the giant category of cases where courts jump into subject matter they do not understand, and then make a mess, just because they can. Maybe in this case, the mess-making is easy to get away with, or to think you can get away with, because the principal people affected are dead people, and so what?

    For a very long list of adverse so-what’s implied, talk to some professional archivists. Did that even happen in this case? If this stands, it will prove damagingly disruptive to scholarly practices of many kinds.

    1. It’s not the court’s job to make its decision based on what is good for scholarly practice of any kind. It’s the court’s job to enforce the laws as written by the legislature. Assuming the court is interpreting the public records act correctly (which I don’t care enough about to examine), the fault is with the legislature, not the courts. The legislature passed a law requiring public agencies, including the University of Michigan, to disclose records subject to certain exceptions. If these documents to fall into one of those exceptions, blame the legislature. And if this decisions turns out to be disruptive to scholarly practices of many kinds, that’s also the legislature’s fault because there’s a simple fix for that–pass a new law.

      1. It’s an illogical decision, not a legislative problem. From the decision, with emphasis added:

        “Thus, a public library receiving a gift is authorized by statute to “hold, use, and apply” the gift for the purposes set forth in the donor’s agreement, subject to any conditions or limitations expressly made. Therefore, the Bentley Library carries out an “official function” as it relates to its gifts and donations when it holds onto such gifts and donations in accordance with the donation agreement.”

        This is how they argued that it was a public record: it was part of the official function of the library. That ignores the fact that as soon as they decide to open the documents they aren’t holding onto the gift “in accordance with the donation agreement.”

        1. Whoops, missed a tag somewhere.

        2. Thank you for that. Seems to show it’s just a wrongly decided case.

          1. No, it’s rightly decided, because there’s also a presumption that any record generated or obtained by a public agency is covered and subject to release unless it falls within an exception, which is construed narrowly.

            1. And an explicit statutory exception is not enough?

              1. It’s not an exception. It is a definition. Subject to the rule of construction

              2. Really curious which explicit statutory exception you think applies.

                1. tkamenick, it would be mistaken to assume archival records will be either clearly government related, or clearly otherwise. A great many donations to university archives are the private papers of otherwise public figures, including government figures. Others may be records of corporations which did extensive business with government. Others may be records of corporations which have privacy-related information on thousands (or more) of ordinary members of the public, including government figures major and minor among a great many others.

                2. Quoting from the decision, gormadoc wrote this: “Thus, a public library receiving a gift is authorized by statute to “hold, use, and apply” the gift for the purposes set forth in the donor’s agreement, subject to any conditions or limitations expressly made.”

                  That says it is by statute. What is described is standard archival practice at universities across the nation.

                  1. Which is not an explicit statutory exception to the public records act. That’s why the University will have to make the argument that the conditions on the donation means that it doesn’t have to produce the documents rather than pointing to an exception.

                    “We had asked the parties to file supplemental briefing in regard to the applicability of the MCL 123.905(3) and how its application may support granting defendant’s motion for summary disposition under MCR 2.116(C)(8). However, after reviewing the briefing, we have determined that the University cannot rely on MCL 123.905(3), or its predecessor, MCL 397.381(1), to dismiss plaintiff’s action under MCR 2.116(C)(8). That is because, assuming the University is required to not disclose the Tanton papers under the terms of the gift instrument, this fact relates to an affirmative defense the University may raise. [citations] And affirmative defenses generally are not implicated in a motion brought under MCR 2.116(C)(8). [citations] We offer no opinion on how either MCL 123.905(3) or its predecessor, MCL 397.381(1), might affect an analysis under MCR 2.116(C)(10) or at trial.”

                    (always read the footnotes)

                    1. Why should there be a reading that a public records act makes every private record public unless the public records act specifically excepts private records? I read “public records” to be records created by public employees in the course of public business, along with some other stuff contributed by folks who know they are contributing to a public process.

                      Thus, it is unreasonable to assume a pubic records act conditions rules for private records. The existence of other legislation which specifically addresses private records quite reasonably can be interpreted as an exception (if not the rule itself) that ought to stand up in court.

                    2. “Why should there be a reading that a public records act makes every private record public unless the public records act specifically excepts private records?”

                      That would be a silly reading. Regardless of the outcome of this case, private records will remain private. As for why there would be a reading making it the default that publicly owned documents are accessible to the people, most people support government transparency and accountability and don’t like the government keeping secrets from the people it’s supposed to serve.

                      “I read “public records” to be records created by public employees in the course of public business, along with some other stuff contributed by folks who know they are contributing to a public process.”

                      Do you have a statutory basis for your reading, or is that just how you wish the law was written? Because the definition of “public records” in the Michigan code certainly seems a whole lot broader than that. Again, your issue seems to be with the way the statute is written.

                      “The existence of other legislation which specifically addresses private records quite reasonably can be interpreted as an exception (if not the rule itself) that ought to stand up in court.”

                      Again, this isn’t about private records. Leaving your continued misuse of the term “private” aside, do you have any support for your claim that an agreement between a private party and a library employee can override Michigan law to the contrary?

                      Should Boxes 1 through 14 be exempt from disclosure as well? Under your restrictive reading of “public records,” I don’t see how anyone would have the right to look at any of the boxes.

                    3. From the judgment:

                      Under the FOIA, a “`[p]ublic record’ means a writing prepared, owned, used, in the possession of, or retained by a public body in the performance of an official function, from the time it is created.”

                      You say this:

                      As for why there would be a reading making it the default that publicly owned documents are accessible to the people, most people support government transparency and accountability and don’t like the government keeping secrets from the people it’s supposed to serve.

                      My definition is not in conflict with the quote above. Your definition is in conflict, because of your blanket inclusion of all publicly owned documents, without regard to the definition’s requirement that any such document be publicly owned “from the time it was created.”

                      It is evident that the definition does not encompass documents created as private documents, but which later come under public ownership.

                      As decided, the case makes no sense.

                      Thanks to Lee Moore for the pointer to the definition in the judgement.

                    4. “It is evident that the definition does not encompass documents created as private documents, but which later come under public ownership.”

                      Is it now? I wonder why the Michigan legislature chose to include statutory exception to the FOIA disclosure requirements for “[t]rade secrets or commercial or financial information voluntarily provided to an agency” if it’s evident that documents created as private documents aren’t included. That “[t]his subdivision does not apply to information submitted as required by law or as a condition of receiving a governmental contract, license, or other benefit” seems rather inconvenient as well. “A bid or proposal by a person to enter into a contract or agreement” certainly isn’t created by a government employee, but they are only exempted from disclosure “until the time for the public opening of bids or proposals.” That means the bids are subject to disclosure after the bid opening. Or what about “[r]ecords of a campaign committee including a committee that receives money from a state campaign fund.” Those don’t sound like they were created by government employees. And how is a government employee generating records subject to “the minister, priest, or Christian Science practitioner privilege” in the course of their employment? Seems awfully silly of them to create a special exemption for all of these categories of documents that were already exempt.

                      Don’t you think that if documents created by private parties were automatically exempt, the University of Michigan lawyers would have made that very simple argument along with the much more complicated argument about the terms of the agreement? I hear they have a pretty good law school there, and I’m pretty sure they can afford fancy lawyers (assuming they don’t have to chip in for Michigan State’s legal bills).

                    5. Let’s look at what the Michigan Supreme Court has to say about “from the time it was created.”

                      “The language “from the time it is created” in the definition of the term “public record” was initially included in MCL 15.232(e) to make clear that FOIA applied to records “irrespective of the date the document[s] [were] prepared,” i.e., to records created before
                      FOIA took effect. [citations (“A writing can become a public record after its creation. We understand the phrase ‘from the time it is created’ to mean that the ownership, use, possession, or retention by the public body can be at any point from creation of the record onward.”).]

                      That doesn’t sound much like what Stephen Lathrop told us it means. It sounds pretty different in fact.

                      I wonder if the Michigan Supreme Court has anything to say about whether documents have to be created by the government to be subject to disclosure. Oh look, they answer that as well.

                      “However, because FOIA ‘does not require that the record[s] be created by the public body,’ that the recordings were created by private entities does not necessarily insulate the records from FOIA.”

                      But Stephen Lathrop was just so certain he was right.

                    6. jph12, every quibble you cite is consistent with the very common practice of having private parties separately create contributions to public records, during a scheduled comment period for instance. Nothing in your list of quibbles seems to rule out a different status for privately-created records which were never intended to be part of a public process, except that they were subsequently donated to a public entity.

                      What argues in favor of that interpretation, and not yours, is that yours proposes to overturn in Michigan decades of established practice modeled alike by university archives across the land.

                      Even assuming that was the Michigan legislature’s intent, and that they intended to revolutionize the status quo without explicitly saying so, why would anyone, including you, suppose that was wise? You are clearly advocating for it. Why?

        3. “That ignores the fact that as soon as they decide to open the documents they aren’t holding onto the gift “in accordance with the donation agreement.””

          They didn’t decide to open the boxes. If the requestor ultimately prevails, they will be required to open the boxes by court order and in accordance with the freedom of information laws of the State of Michigan. Many confidentiality agreements permit disclosure “or as otherwise required by law” and those that don’t are likely void as against public policy. And in at least some states (not sure about Michigan), if you make an agreement with a government entity that the government entity is not actually authorized to enter into, you are just plain out of luck. When dealing with the government, the private citizen is expected to know, and enforce, the limits on the government’s authority. It may seem unfair, but that doesn’t make it untrue.

          Even if it is forced to make a copy, the University itself probably would still be barred from further access to, or use of, the records until the limitation period expires, so the University can still abide by its end of the agreement.

          1. Whether they wish to or not, it’s pretty clear to me that as soon as they open the boxes the donation is forfeit. The donation, including the boxes, is no longer theirs. They may have been previously, and that might matter, as I’ve already stated, but they aren’t anymore if opened before 2035. They shouldn’t be able to copy those documents due to copyright then, much less give copies to the public. Even if they are still held to be public records they should still be protected.

            1. You’re going to have to do a little more to convince me that you can breach an agreement by complying with a court order.

              1. Of course you can breach an agreement by complying with a court order. For example, if I sign an agreement with a contractor to do some work on my house, and he can’t because my neighbor takes a restraining order out against him, I assume he has to give me my deposit back. And if the agreement here is void, isn’t it correct that the state loses the donation?

      2. I agree, but I wouldn’t even state it in terms of “fault”. Public universities are well aware that public records acts apply to them. This actually isn’t anything new or limited to this issue. There are plenty of situations where things that private universities keep private, such as, for instance, salaries of star professors and deans, admissions records, underlying data of research projects, etc., are considered public records under state statutes.

        So this is no different. A public university simply can’t act exactly the same way as a private university can. It has less freedom, because it is public. I don’t even really think this is controversial.

  2. Seems like opening these would kill the agreement, making them not public records anymore and the donation forfeit. I don’t know if it matters that they used to be public records in that case, but the decision seems stupid to me.

    1. Exactly. If the U was wrong in agreeing to the condition, then the agreement is broken, and the documents are nolonger the U’s, and therefore cannot be accessed under FOIA.

      Yes the legislature should fix it, but FOIA can’t crack open a document that isn’t, and apparently never was, q government document.

  3. The difficulty here is that I would think a conditional gift isn’t completed if the conditions aren’t met. If the university can’t meet the conditions, why does it have a right to the papers?

    There could be extraordinary exceptions. The original Rhodes bequest was for white men only. But nobody has ever thought a delay in publication to be extraordinary. Even the idea that a bequest of this nature is a “public record” before the release date is reached seems a stretch and wholly unnecessary. The Michigan court’s could just as easily have held that the university is holding it in trust for the public but it isn’t fully the public’s until the date is reached.

    What next? The University of Michigan has an obligation to publish your health data unless a statute specifically forbids it? Forget leaving them papers. Do you want to even see a doctor there with laws like that?

  4. Presumably every document held by the university library is a public record, if one follows the argument they made. Is the public really entitled to copies of every single book and every journal held by the library? If so, I know where I’m going to start getting copies of articles I’d usually have to buy.

    1. Since they deal with preserved documents, this decision is potentially harmful to the documents themselves. Lots of old papers don’t take well to handling or copying.

    2. I can’t speak for every state’s open record law, but the ones I’m familiar with and FOIA all have exceptions for copyrighted material to avoid that. Also since they can usually charge you for reproduction costs, it’s likely that paying per-page for a copy of a library book (which you could do at the library’s copier yourself already) will be prohibitively expensive.

      1. The problem is that we don’t know if these works are copyrighted. If they are indeed his personal papers, correspondence, and research, they probably are.

        There are documents and articles that you can only gain access to by becoming a member of a professional organization. That can cost several hundred dollars. There’s one I would like to have, just one page, but joining a professional organization isn’t worth it.

        1. The University owns the copyright. From the footnotes, “Dr. Tanton donated his papers during his lifetime, transferring the title and the copyright at that time.”

          1. One issue is that donated papers almost always have complicated copyright issues, even when the donor transfers all his/her copyrights. If a donor’s papers have, for example, a letter written to them by someone else, the donor can’t transfer the letter writer’s copyright. Same thing if the donor’s papers include clippings of newspaper articles. There are probably other examples, too.

    3. There’s usually an exception for copyrighted material built into the public records law and if there wasn’t, they usually charge such a high cost per page to get a copy of a public record that you’d probably be better off buying a copy on your own.

      1. You might be surprised at the price of journal articles then. A Nature article is $32. It’s very easy for a university to get those articles, since they probably have a subscription, so the FOIA cost should be very low, but it’s a nominal $25. For groups that intentionally suck up as many articles as they can for free or profitable distribution it’s a good difference, considering that there are at least 12 articles in Nature just this issue. Other companies might be higher; I think Springer charges very high rates for some older articles.

        1. It ruling doesn’t mention why Ahmad wants to see these things. I understand it’s probably not relevant to the legal argument. Going to court shows a pretty strong motivation to want to see these papers. I can’t help wondering what he wants them for! (We can’t assume it’s for “scholarship”. FOIA wouldn’t require Ahmad to want it for “scholarship”. )

    4. I wonder if I could get a public law school to do all my legal research for me just by handing in FOIA requests. Probably not great for writing briefs on a deadline, but could save a lot of work on researching Law Review articles.

  5. One would think that the contract of the acquisition would need to be fulfilled before the records would be seen as belonging to the university, much like a trust for an minor upon reaching majority. This seems a pretty limited case, and would simply provide a need for a paid, neutral third party to hold the records til maturity (like that organization in Back to the Future).

  6. Sounds like a defeasible estate to me.

  7. Records laws often leave some grey areas for court interpretation, sometimes explicitly with things like balancing tests for the public interest in confidentiality versus the public interest in disclosure.

    You run into problems just saying anything that the government says will be confidential gets to stay confidential because they the record keepers themselves just get to decide what’s released and not. And you run into similar problems saying that the person who gave the record to the government gets to decide if it’s confidential.

    So often you wind up with a test where a promise of confidentiality will be respected if it was necessary to make that promise in order to get the record in the first place, but that of course is not always easy for a court to figure out, and still involves deciding how much to trust the self-interest motivations of the promise giver and taker.

    In a case like this, I would lean heavily on the fact that the records themselves aren’t (or don’t appear to be) records of government activity. By reading them, you wouldn’t learn anything about what open records law are traditionally designed to illuminate. In that kind of case, I’d give a strong presumption in favor of the confidentiality clause. Part of that gets exactly at what Prof. Volokh is saying – this will strongly discourage similar gifts to public universities, actually harming public access to information over the long run (for virtually no gain to the pertinent interests furthered by open records laws).

    1. tkamenick, it would be mistaken to assume archival records will be either clearly government related, or clearly otherwise. A great many donations to university archives are the private papers of otherwise public figures, including government figures. Others may be records of corporations which did extensive business with government. Others may be records of corporations which have privacy-related information on thousands (or more) of ordinary members of the public, including government figures major and minor among a great many others.

      Consider the records of the major credit ratings agencies, for instance. If any of them went out of business, their financial records on millions of people—in and out of government, would be a treasure trove for historians—but only justifiably so after at least a century or more had elapsed, to be sure every party with a privacy interest was dead. I happen to know that one such example from the 19th century is among the most requested archival resources at Harvard.

      1. I agree, which is why I’m not advocating such a blanket rule – I said it appears in THIS case the guy’s records themselves don’t contain information about government activities (although neither do either of your examples, so I don’t think those are cases that would support unsealing the records over a grant conditioned on temporary confidentiality).

        1. Of course the private records of government figures include information about government activities. And quite likely some of that information is stuff which should have gone into government archives, but didn’t. Or do I misunderstand you?

          1. I am not willing to make the assumption you are, no. There’s no reason private records of a government official would necessarily contain government information. And whether any government-related information SHOULD have already been retained in government archives is highly fact- and state-law- specific.

            1. Talking as I was about government figures in general, my remark was not an assumption. It was a simple statement of fact.

              1. It was a simple statement of what you assume the fact(s) to be.

                There. EVERYBODY wins!

                1. No assumptions involved, James. Known facts.

                  Why would anyone take even a moment to quibble about such an obvious proposition?

    2. I’m not a lawyer and I don’t know the specifics of this case (beyond what Eugene wrote and what a few commenters here noted). But your analysis seems right to me. (Or it is the analysis I would want to be true if I could be public policy dictator.)

      I’d also like to reiterate your point about “if it was necessary to make that promise in order to get the record in the first place….” Archivists make that type of determination quite often. For a number of reasons (their mission is expanding public access,* maintaining closed records takes valuable space, and it’s simply easier not to have to enforce restrictions when dealing with patron requests), they usually have strong incentives to avoid closing or otherwise restricting records. They’ll often accede to requests for restrictions when accepting donated papers because they know, or believe, the donor wouldn’t make the donation otherwise.

      *I’m talking about archivists at public institutions or private institutions with a public-facing mission like, say, a historical society. The mission is different for archivists at, for example, private firms.

  8. I wonder if the university could have gotten around this by donating the documents in question to a trust, under the stipulation it would be returned back in 25 years. Alternatively, the decedent’s estate could have.

  9. I would think that if they donated to the university with a behest that stipulates they not be opened for X years, they’d be held in trust by the university rather than owned outright, and thus NOT subject to “open-records” laws.

  10. Leaving the case in question aside, but considering archival questions generally, much of the commentary here over-simplifies the premises and problems involved. Here are a few points to consider:

    1. Document donors often make bequests before they die. They may wish continuing access for themselves as a condition.

    2. At least initially, donors may want their collections open to some, and not to others. Different universities have differing policies on whether that is ethical. The Library of Congress has permitted doing it that way.

    3. Sometimes document donors condition access after they die on the permission of heirs or descendants. Once again, universities may differ on going along with that. If they don’t, they reject the bequest, or negotiate terms.

    4. There are some highly valuable bequests which may not be subject to copyright, but which can nevertheless be made profitable for the institution which holds them, simply by controlling access.

    5. Some collections are too dangerous to allow the public to access. Collections are not always only documents. A live hand grenade has been found in one collection. Other collections have been suspected of containing dangerous disease spores from around the world.

    6. National security information may turn up unexpectedly in documents donated by public figures, or corporations which do business with government.

    7. Initial cataloging almost never includes more than a cursory read of the materials. Scholars commonly turn up in archives interesting discoveries which nobody suspected were there.

    8. Large archives almost always contain considerable backlogged material, yet to be curated, for which no one really knows what to expect in the collection.

    9. All kinds of things get looted when you allow the public free access. Criminal specialists—including some with appropriate academic credentials—have been caught with enormous troves taken from multiple archives. Antique maps, old engraved plates cut out of books, and antique postage stamps from foreign lands have been targeted, among other kinds of valuable objects.

    10. Bequests of fine art to universities—especially if they are sometimes to be exhibited in university offices—may be kept in archives at times, or most of the time.

    11. Supervision of general public access to large archival collections is not economically feasible, and usually cannot be made so. Maintenance of the archives is a cost of supporting scholarship.

    12. The bulk of university archive collections has increasingly been moved off university campuses, and into secure storage facilities operated by specialist private companies.

    13. Nevertheless, archives are the principal source supporting many kinds of scholarly research, especially in the humanities. Their absence from public universities would strike a considerable blow against their ability to attract scholars and educate the public. The subtraction of public university archives from the system as a whole would strain the rest of it, reducing the overall sum of what could be saved and curated.

    1. Ditto. If I tried, I could probably think of more points to add, but you seem to cover it.

  11. Skimming – and only skimming – the judgement, I was puzzled by this :

    Under the FOIA, a “`[p]ublic record’ means a writing prepared, owned, used, in the possession of, or retained by a public body in the performance of an official function, from the time it is created.”

    The judgement then goes on to discuss, reasonably coherently, whether the documents in question fall within the meaning of “in the performance of an official function” by reference to the University’s bylaws.

    But I did not spot any discussion of “from the time it is created.”
    It’s hard to see how this time condition could apply to a writing prepared by a third party and later given to the University.

    What am I missing ?

    1. From the decision’s standard of review: “Effect should be given to every phrase, clause, and word in the statute and, whenever possible, no word should be treated as surplusage or rendered nugatory. ”
      Hmmm. (Actually it is a reasonable reading to assume documents not created by government become government documents as soon as gov’t takes possession, but it is interesting. Maybe it is not discussed because the university didn’t bring it up).

      1. Actually it is a reasonable reading to assume documents not created by government become government documents as soon as gov’t takes possession

        It’s a reasonable policy, but not a reasonable reading since the statute says:

        “from the time it is created

        Perhaps the university wanted to lose, so it didn’t raise the argument. But it wanted to give the impression of fighting.

        1. To make it into reasonable policy, you pretty much have to give up on any expectation that your archives will ever become a repository for records which were not always public records. Basically, you would get a class of public university archives which—unless preempted by official state archives—contained odd bits of records from state government files, and almost nothing else.

          That class of archives would serve principally scholars of state government, or other scholars needing to dip in to cover a state government angle related to some broader interest. It would raise a question why such limited usefulness ought to be funded out of a university budget, instead of out of the state’s general budget. Why not just send it all to the state archives, where all state records could be accessed together?

          Donors with a need for more flexible policy would seek elsewhere. Federal documents would go to the National Archives. Private documents would go to private universities, or to the Library of Congress, or perhaps even to the National Archives in cases where the private documents had national historical importance. None of those repositories will ever be operated on the basis of a presumption that everything they hold will be open to the public all the time.

        2. I understand, but since something non-government cannot magically be changed to a government document retroactively to when it was created, some poor judge is stuck figuring out how to shoehorn some meaning into that.
          Since this was a summary judgement ruling, not the actual trial ruling, I imagine the school didn’t make every possible argument. I expect they aren’t trying to throw the case since the effect will be a significant reduction in people interested in donating things to them.

          1. I’m only speculating about throwing the case – it’s hardly an unknown tactic but incometence is always a stronger suspect than conspiracy.

            However, for amusement let’s stipulate that they were trying to throw the case. Why ? And are there really adverse long term consequences ?

            1. Why ? The donor is advertised as a figure widely regarded as the grandfather of the anti-immigration movements” and the material in question was stuff he wanted to be kept from the public eye for anther fifteen years or so. Is it not reasonable to suspect that the material might be politically useful to his pro-immigration foes (which are likely to include the university itself) in the short term ? Perhaps frank correspondence with conservative pols or others who are currently active but are unlikely to be in 2035 ?

            2. If the judgement frightens off potential donors a simple legislative fix is available. “Sorry we were forced to reveal stuff that that donor wanted kept quiet for a bit. But we really tried, and look – now we persuaded them to change the rules. Your stuff will now be kept supersafe. Unless it’s really dynamite stuff when we’ll just leak it.”

            Daphne, strike that last sentence in the final version.

            1. Heh, maybe. There is a real patent application (not mine) I used to have outside my office – the patent attorney had added a claim something like:
              “A claim added by me to see if any of you are actually reading the draft application like you are supposed to so you can tell me to remove this”
              Somehow it was submitted to the patent office with that still in the application.

              1. Yup, checking your work before submitting it is dull, but often useful.

                I recall, several hundred years ago, when I was in college, a small group tutorial in which there were four students (inc me) and a Prof. We had each had to write an essay on a given subject, something to do with Kant in this case, I believe. The Prof would pick one student at random to read his essay out loud, and then the other students were supposed to criticise it.

                Well the student selected – a very odd fellow indeed – was reading aloud his thoughts on Kant, and suddenly began a new paragraph with “Some middle aged women….” He paused, realising that this text belonged to something other than his piece on Kant, and moved on seamlessly to his next paragraph.

                We never discovered what apercu on middle aged women we had missed out on, or whether there was an unsuspected link to Kant. But a least we were comforted in our conviction tha he was a very odd fellow. (But, as it happens, certainly no odder than the Prof.)

            2. “and the material in question was stuff he wanted to be kept from the public eye for anther fifteen years or so. Is it not reasonable to suspect that the material might be politically useful to his pro-immigration foes (which are likely to include the university itself) in the short term ?”

              It’s not unreasonable, but in my experience, a lot of closed or restricted stuff is actually not very interesting or earth shattering.* Frankly, a lot of it is boring.

              *I’m an archivist, by the way, but I’m not involved in any of my institution’s policy decisions and all my opinions are mine and not necessarily my employer’s.

          2. And :

            some poor judge is stuck figuring out how to shoehorn some meaning into that

            I don’t see much difficulty. Or indeed any. The meaning seems pretty clear to me. It just doesn’t happen to cover items that come into the government’s possession after they are created. It’s only poor judge in difficulty time if the poor judge is hunting for one of Sarcasto’s hooks on which to hang a predetermined judgement that this sort of stuff is covered.

  12. As I’ve read this more carefully, I’ve become less concerned. As Professor Volokh mentions (and as has seemed to have been missed or forgotten, including by me at first), the only legal issue here is whether the documents met the statutory definition of “record”, which in itself is not enough to require their production to the public. The question still remains whether any particular record must be disclosed, at which point statutory exemptions and other considerations (in Wisconsin, that would include a common law balancing test) come into play. The conclusion that these are “records” is fairly innocuous and seems right (although the point about “from the time it is created” is an interesting one, that perhaps has been read to mean something different from its plain meaning by Michigan courts).

    For example, a Wisconsin case 10 years ago dealt with whether teachers’ purely personal emails on government accounts (“Honey, can you pick up the kids”, “Let’s have a 4th of July party at our house”, etc.) had to be disclosed. The short answer is that they didn’t, but the long answer is elucidating. A majority of the court concluded that the emails did qualify as “records” (Wisconsin’s definition is broad and not content based, applying to virtually any document/file in government possession, regardless of format, with some exceptions for notes/preliminary drafts/etc.). But a separate majority, for varying reasons, also concluded that the emails should not be released (2 because the emails were not “records” and 2 because even though they were records, the public interest in allowing government employees some privacy in such emails outweighed the public interest in disclosing them, since they did not shine a light on official government actions).

    The fact that this case is going back on remand and, even though the donations are “records” under the law, they may still not be disclosed, makes me less worried.

    1. “For example, a Wisconsin case 10 years ago dealt with whether teachers’ purely personal emails on government accounts (“Honey, can you pick up the kids”, “Let’s have a 4th of July party at our house”, etc.) had to be disclosed. The short answer is that they didn’t,…”

      That may be state specific. I worked at a university and we were told that any email was available via FOIA (modulo the narrow FOIA exceptions for ongoing criminal investigations, etc).

      As an aside, it was also verboten until 2010 or so to use email for any personal business. One example given was that you could use the university supplied phone to call your wife and say ‘I’ll be working late’, but you weren’t supposed to email the same thing.

  13. Thank-you for including a case law link to a publicly-readable copy. (And non-PDF as in this case is always preferable.)

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