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.