Monday, May 20, 2024

MSU changed its mind about releasing Nassar documents to the public

May 6, 2024
A Michigan State University sign on Beal Street on Aug. 23, 2019.
A Michigan State University sign on Beal Street on Aug. 23, 2019.

Michigan State University did release some of the infamous Larry Nassar documents in response to a public records request — then changed its mind about the rest.

The university gave some of the documents to a doctor who studied in Nassar's department. Then, it issued a broad denial when The State News requested them.

The decision raises questions about if MSU is fairly processing requests, according to an expert on the Michigan Freedom Of Information Act, a statute allowing the public to request records from government agencies like MSU.

The documents — which relate to the university's handling of years of unchecked sexual abuse by Nassar, a disgraced ex-MSU doctor — were withheld from investigators for years.

In March 2024, however, the university began sending them to Michigan's attorney general.

On March 10, MSU received a Freedom of Information Act Request from Jonathan Decker, a doctor who studied in MSU's department of osteopathic medicine while Nassar was a professor.

Decker requested documents referencing himself, according to a copy of his request obtained by The State News.

The university provided him with the relevant records, according to a letter from MSU's FOIA office.

Then, on March 28, The State News requested all Nassar-related records turned over to the attorney general.

MSU denied that request, citing a FOIA carve-out covering records that would "interfere with law enforcement proceedings." An expert said the exemption was misapplied.

MSU has also declined to give The State News the smaller set of records it already released to Decker.

The university "changed course" between the request from Decker and the ones from The State News, said MSU spokesperson Emily Guerrant.

The FOIA office and general counsel discussed the State News' request, and decided that given the "angle of impacting the investigation," the documents shouldn’t be released, she said.

They didn't consider that when processing Decker’s request "because of the limited scope," Guerrant said.

If MSU received another similar request — from a colleague of Nassar or survivor of his abuse — they would now deny it, she said.

Steve Delie — a FOIA attorney and director of transparency and open government at the Mackinac Center for Public Policy — said the decision raises questions about if MSU is fairly applying the exemptions to all requesters.

"I don't see how you can say the record won't interfere one day, and then decide they will the next day," he said. "It raises questions about if MSU is processing these based on who the requestor is, which is generally not appropriate."

To use the law enforcement exemption, a public body has to be able to prove the records "would" interfere with an ongoing law enforcement investigation, Delie said. It’s not enough to assume that they "could."

MSU did not make the decision based on advice from the attorney general, Guerrant said. The university told the AG that it had received requests, but got no response or any guidance about how to handle them, she said.

Regardless, the university decided release of the records could interfere with the investigation into MSU, she said.

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The attorney general's office has not returned calls and emails from The State News asking if it believes the release of the records would interfere in its investigation.

Delie said he doesn't understand how MSU can know releasing the records would hurt the investigation if they haven't talked to the investigators about it.

"The standard in the law is clear: You have to be able to say specifically that it would interfere, and how," Delie said. "You can't make a vague generalization about how there might maybe be a problem.”

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 for years by Michigan's Attorneys General, in hopes of investigating "how and why the university failed to protect students" from Nassar's abuse for so long.

For years, MSU’s board withheld the documents from investigators, arguing they were subject to attorney client privilege. It voted unanimously to reverse that decision in December. The transfer of the documents began in March and ended last month.

Administration Reporter Theo Scheer contributed to the contents of this article.

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