ANALYSIS: The challenges of obtaining public records from a public university
It has now been over 10 weeks since the university initially received Campus Reform's request, leaving ample room for concern over the lack of transparency.
In late March, Campus Reform sent a public records request to Wayne State University (WSU) in Detroit, seeking the release of emails from several key individuals: Matt Lockwood, Associate Vice President of University Communications; Roy Wilson, President; Marquita Chamblee, Chief Diversity Officer; Caroline Maun, English Department Chair; and Lisa Ze Winters, English Department Associate Chair.
To facilitate document production, Campus Reform narrowed the search scope to the following words: Steven Shaviro, Facebook, First Amendment, Free Speech, Stanford, and Kyle Duncan.
Further, the timeframe for documents was narrowed to a three-day span, from March 26, 2023, to March 30, 2023
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The request was sent to find documents related to WSU professor Steven Shaviro, who in late March was suspended with pay after describing conservative speakers as “racist, homophobic, [and] transphobic,” and calling for their murder.
“I think it is far more admirable to kill a racist, homophobic, or transphobic speaker than it is to shout them down,” Shaviro posted on Facebook.
FOIA Coordinator Linda Lowe, of the university’s Office of the General Counsel, did not acknowledge the request until April 10, despite stating that the university had received it on April 3.
In an email dated April 10, she stated, “I am writing in response to your Freedom of Information Act request received on April 3, 2023. Pursuant to Section 5(2) of the FOIA, the University is permitted to extend its time to respond to a FOIA request by 10 business days by notice to the requesting party. This letter provides you with notice of such an extension, which is required to prepare a proper response. The extended period ends April 24, 2023.”
Campus Reform did not respond to that email, but instead waited for the follow-up response.
The follow-up came on April 19, four business days before the April 24 deadline, but 15 business days after Campus Reform initially sent the request.
Disappointingly, the April 19 follow-up did not include documents.
Instead, the university sent a message explaining their legal right to charge a deposit fee to initiate the search.
Lowe stated, “Under University policy and the FOIA, the University is permitted to charge a fee for certain labor and out-of-pocket costs that it incurs in responding to a FOIA request and to require a 50% deposit of the estimated fee if it exceeds $50. The estimated fee for complying with your request is $202.60 ... To proceed with your request, we require a deposit in the amount of $101.30.”
She also mentioned that it would take three weeks from receipt of the deposit to fully process the request.
“[I]t will take 3 weeks from receipt of your deposit to fully process your request, including collecting and examining the requested records, reviewing and identifying applicable exemptions and redacting or otherwise removing exempt material,” the email read.
Campus Reform alerted Lowe on April 20, just one day later, that it agreed to pay the deposit and requested an estimate of the number of files Campus Reform expected to receive for the requested amount.
Lowe did not provide an estimate and instead resent an earlier email dismissing the question.
In a media inquiry to WSU’s General Counsel office, Campus Reform asked how the department could calculate an estimated fee if it could not provide an estimated amount of documents.
“The estimated fee is based on a good faith estimate of the volume of records that will need to be reviewed,” Lowe responded.
Campus Reform also inquired about the reason why the university has taken more than 10 weeks to process the public record request.
Lowe responded by stating, “The FOIA allows a public body 15 business days to respond to a request. We responded five ays before that deadline, i.e., on April 19, 2023. Our response included a cost estimate and an estimated time frame to process the request once a deposit is received. We did not receive your deposit until May 31, 2023 – more than five weeks later, accounting for more than half of the ‘10 weeks.’ Currently, we are only two weeks into the five-week time frame estimate.”
However, the deposit check was sent to the university on May 12.
Therefore, WSU is arguing that it took more than two weeks to receive Campus Reform’s deposit, which contradicts known facts about domestic delivery times. “[T]he average time of delivery for domestic mail in America sits at 2.5 days regardless of where you are the United States,” according to the United States Postal Service.
Attorney Cece O’Leary with Southeastern Legal Foundation told Campus Reform that WSU is using its full legal right to make obtaining documents a long and difficult process.
“As an arm of the government, WSU is required to produce public records in a reasonable and timely fashion, but it appears to be using delay tactics to avoid fulfilling its duty,” she said.
It has now been over 10 weeks since the university initially received Campus Reform’s request, leaving ample room for concern over the lack of transparency.
But lack of transparency is a common characteristic of WSU.
It failed to fulfill promises to release public records requested by the Detroit Free Press for over two years.
Detroit Free Press sent a request in 2019 for email records related to the relationship between Detroit’s mayor and a university doctor. Despite providing estimated timelines, the university repeatedly allowed them to pass without producing the records.
“For two years, Wayne State University made promise after promise to release public records requested by the Detroit Free Press. And for two years, those promises went unkept,” the publication reported in June 2021.
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After waiting more than two years, the Detroit Free Press again inquired about the emails.
The same public record coordinator Campus Reform has been working with, Lowe, told the Detroit Free Press that the documents would be sent by mid-February 2021, but the paper reports that Lowe failed to deliver and did not provide an explanation.
As O’Leary noted, the Detroit Free Press also alludes to issues with Michigan’s Freedom of Information Act laws, which experts say lack concrete deadlines for public bodies to respond to records requests.
“Transparency is a necessary tool to hold our government accountable. The public has a right to know what is happening on college campuses, but too often universities ignore or undermine transparency laws,” O’Leary told Campus Reform.
As the Detroit Free Press reported, WSU finally released around 500 pages of emails after being informed about an article highlighting the two-year delay.
Campus Reform hopes to not wait that long.
