Michigan State University has decided not to publicly release thousands of documents relating to the university’s handling of years of sexual abuse by disgraced ex-MSU doctor Larry Nassar until an outside investigation ends.
The university argues that the records — which were released to Michigan’s attorney general in December — are not subject to the Freedom of Information Act because they fall under an exemption covering “records compiled for law enforcement purposes.”
The exemption shields records from disclosure when they would interfere with law enforcement proceedings, according to the statute.
The State News filed public records requests for the documents after the board voted to waive privilege over them last year. MSU responded Thursday, saying release of the records would “interfere with law enforcement proceedings.”
The university did not explain how release would interfere with attorney general Dana Nessel's work.
The decision was made by MSU’s general counsel and did not involve the attorney general’s office, university spokesperson Emily Guerrant said.
MSU plans to stop using the exemption when the attorney general’s investigation concludes completely, she said.
The attorney general’s office did not respond to requests for comment at time of publication.
Steve Delie — a FOIA attorney and director of transparency and open government at the Mackinac Center for Public Policy — reviewed the correspondence between MSU and The State News and said the exemption seems to be misapplied.
Normally, the carve-out is employed by law enforcement agencies trying to shield records of their own ongoing investigations, he said.
The only cases where he’s seen a public body use the exemption over records for someone else’s investigation is in the context of shared investigations.
“Let’s say MSU Police and another law enforcement agency were investigating a potential crime and sharing records, I would not expect MSU to release the records it got from the other agency,” Delie said. “But, I can’t think of another scenario where a public body that is under investigation would use (the exemption) to shield its own obligation to disclose.”
The exemption doesn’t have a specific provision preventing a public body from using it that way, but it’s not common, Delie said.
If MSU has reason to believe release of these records would materially harm the attorney general’s work, they should have explained it in their response, he said.
The university is also obligated to use redactions to separate truly exempt portions of the records from the rest, Delie said. MSU’s response declined to provide the records whatsoever, even in a redacted format.
“They’re essentially arguing that the entire universe of records they sent over, all of it, would interfere,” he said. “That seems to be an improperly broad, blanket exemption that I don’t think is appropriate.”
The State News plans to appeal the decision to MSU president Kevin Guskiewicz. Under Michigan's open records laws, he will have ten days to review the general counsel's decision and decide whether to uphold the denial.
The previously-privileged documents include thousands of pages of email and text communications to and from MSU leaders and attorneys, records of internal complaints and investigations regarding Nassar, and personnel files of those who worked with and above Nassar during his time at MSU.
Nassar is currently serving an effective life sentence for numerous county charges of assaulting young women and girls under the guise of medical treatment and federal child pornography charges. Many of his offenses occurred during his work as an MSU doctor. Subsequent lawsuits and accounts from survivors have alleged that MSU’s administration and board failed to protect his victims and ignored reports of abuse.
The records were sought by Nessel in hopes of reopening her investigation into “how and why the university failed to protect students” from Nassar’s abuse for so long.
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For years, the board withheld the documents from investigators, arguing they were subject to attorney client privilege. It voted unanimously to reverse that decision in December.
