In an attempt to disclose business conducted at private MSU Board of Trustees meetings, The State News filed a request for documents distributed at a closed work session.

The university responded to the newspaper's Freedom of Information Act, or FOIA, request by releasing several heavily censored preliminary budgets and withholding four other documents.

The trustees meet in private work sessions the day before their formal Friday meetings to discuss matters they will decide upon the next day.

University officials' reason for not including the documents was that Michigan FOIA laws allowed them to withhold information "of an advisory nature to the extent that they cover other than purely factual materials and are preliminary to a final agency determination of policy or action."

The language of that particular section of the law, however, goes on to say that the above exemption only applies if the body can clearly show that maintaining candid discussion between the body and its employees is more important than the public's right to know. The university's response did not clearly show this.

The state FOIA laws also stipulate that a written notice denying information shall contain a description of a public record or information on a public record that is separated or deleted. A description of the withheld information was not included in the university's response to The State News' request.

The university's FOIA office did not return repeated calls Wednesday to clarify the omission.

Trustee Joel Ferguson said the public is not entitled to information of a financial nature, such as buying property or sensitive personnel information.

When asked if he felt the trustees were not acting transparently by keeping their work sessions closed, he responded, "Not particularly."

"The Michigan Supreme Court gives us the power to do this," Ferguson said.

Ferguson said the board is not subject to the state's Open Meetings Act because a 1999 Michigan Supreme Court decision exempted the board from complying with the act in some situations.

"That was made very clear in the Supreme Court case," Ferguson said. "Clear as a bell."

The court made that decision in the context of presidential searches, but it has been broadly interpreted by university boards to let them close any meeting except their formal meetings, which are required to be open by the state's Constitution.

What is not clear is what constitutes a formal meeting. The trustees do meet by subcommittee in the work sessions and review materials that so far have not been made public. Trustee Dorothy Gonzales said this week that board members also talk about business matters during their dinner meetings with MSU President Lou Anna K. Simon at Cowles House the night before their public meetings.

The state's Open Meetings Act defines a meeting as "the convening of a public body at which quorum is present for the purpose of deliberating toward or rendering a decision on a public policy." The board's bylaws define quorum as majority of members, or at least five of the eight trustees.

MSU bylaws do not establish quorum for the subcommittees.

"At this point, the board is defining what is a formal meeting," said Dawn Hertz, a First Amendment lawyer and general counsel for the Michigan Press Association, who represents The State News.

Hertz said in order to get the Michigan Supreme Court to clarify the scope of the 1999 decision, someone would have to take the board to court. The likelihood of that is slim, Hertz said, because if the board is found to be exempt from the Open Meetings Act, the plaintiffs would have to pay the full cost of the suit.

"It would be on your own dime," Hertz said. "There will be no direction given by the court until there is further litigation, and there won't likely be further litigation because of the expense."

But Herschel Fink, a First Amendment and media lawyer who represents newspapers across the state, said the 1999 court decision was limited to the narrow scope of presidential searches.

"University boards do not get a pass because of the '99 case," Fink said. "That is an evasion."

Fink said if the board is holding closed meetings in which members deliberate toward a decision, then it violates the act.

"Translate this across the street to the East Lansing City Council," Fink said. "If they were getting together to kick ideas around, it would clearly be illegal."

East Lansing Mayor Sam Singh said the City Council follows the Open Meetings Act to the letter.

"The citizens of East Lansing have a higher level of trust when they see that we operate in a very public fashion," Singh said.

Josh Jarman can be reached at jarmanjo@msu.edu.