PART 4 Archivists Have to Know—and Advocate for—FOI Bryan Whitledge, Central Michigan University We learned many things from the oral arguments in Ahmad v. University of Michigan . Two stood out. First, Freedom of Information (FOI) attorneys are experts with FOI statutes, and judges are experts at interpreting law in relation to the specifics of a case. Despite their expertise and good intentions, however, none of them are archivists. Second, we should not assume that insights on FOI from another jurisdiction will be persuasive in Michigan. As the counsel for the University of Michigan learned via a bristly response, citing federal FOIA law did not carry any weight with at least one judge. Despite widely differing opinions on this case, it is safe to say that nobody thinks years of litigation in court is the best way to address questions about access restrictions. How can we achieve a more effective public records framework for private archives at public institutions? One way is for archivists to become agenda-setters. Keeping in mind the two aforementioned points—archives aren’t necessarily understood by those who work with public policy and one must know the specific laws of a jurisdiction—archivists’ expertise can improve public policy, but archivists must understand the policy landscape to effect meaningful change. After all, Ahmad v. University of Michigan is not the first—and will not be the last—time that archivists negotiate FOI statutes. and concern for the individuals whose private stories are in the records. When I raised these concerns with a lawyer friend well-versed in Mi-FOIA, the response was to counter those concerns by asserting that the sensitive information could remain closed because of existing Mi-FOIA exemptions: Exemption (a) about privacy, Exemption (o) about archaeological sites, and others. The legal scholar may be correct. It may be technically possible to honor the terms of the donor agreement with this procedural mechanism. But relying on non-archives-specific public records FOI exemptions to enforce the conditions of a donation is not a satisfactory solution. For example, Michigan has twenty-seven exemptions to Mi-FOIA and none is specific to archives. 2 An archivist might wish for their institution’s FOIA officer to cite Exemption (h) about physician-client privilege to enforce the conditions of a donor agreement or maybe Exemption (r) about a campaign committee. This haphazard approach, which is no sure thing when brought before the courts, produces uncertainty and muddles the work of archivists. Furthermore, we cannot be sure that FOIA statues will include exemptions that would apply to all access restrictions in a donor agreement. university, museum, or government depository from a donor or depositor other than a public agency.” 3 Archivists in Kentucky have a clear policy they can follow and articulate with their donors and researchers. Where jurisdictions deem archives at public institutions to be subject to FOI, Kentucky’s definitive exemption language would prevent the uncertainty that University of Michigan archivists are experiencing in the Ahmad case. 4 Archivists can influence changes to better define the application of FOI laws to private records in public institutions. Until then, archivists must work diligently to understand the quagmire of donor relations, access restrictions, and FOI statutes that govern their work. Not only is this knowledge essential for doing the best work possible, it is the first step in zealously advocating for the interests of archivists. Notes 1 “Amicus Brief of Association of Research Libraries, Association of College and Research Libraries, American Historical Association, American Council of Learned Societies, University of California Libraries, University of Illinois Library, and University of Iowa Libraries, in Support of Defendant-Appellant.” September 30, 2020, 9–11, https://www.arl.org/wp-content/uploads/2020/09 /2020.09.30-ahmad-v-university-of-michigan -amicus-brief.pdf . Michigan Compiled Laws 15. 243, Sec. 13, http:// www.legislature.mi.gov/(S(ydma3nr5c4zr23msmms ylawt))/mileg.aspx?page=getObject&objectName= mcl-15-243 . Ky. Rev. Stat. 61.878(n) cited in Jeremy S. Rogers, Kentucky, Open Government Guide , https://www .rcfp.org/open-government-guide/kentucky . Another approach is to make definitive that personal records in public institutions are not subject to FOI, as Peter Hirtle asserts on page 13 of this article. Federal agencies, such as the National Park Service, have policies based on this approach: “Donated and purchased archival collections that weren’t created by a Federal agency aren’t subject to FOIA,” which is grounded in court precedent citing 44 USC §3301 (a)(1) (B)(i), “[a record] does not include library and museum material made or acquired and preserved solely for reference or exhibition purposes.” National Park Service, “Appendix D: Museum Archives and Manuscript Collections” in Museum Handbook (Part II) , 80, https://www.nps.gov /museum/publications/MHII/mh2appd.pdf . March/April 2021 2 The Landscape of Michigan’s Public Records Laws When I first learned about this case, I didn’t realize how little I knew. I initially thought that making the Tanton papers subject to Michigan’s Freedom of Information Act (Mi-FOIA) was inappropriate because it creates the potential for horrible, unintended consequences if closed archives at public institutions are subject to Mi-FOIA. An argument along the same lines is found in the amicus brief on behalf of the Association of Research Libraries, et al. 1 My opinion was not grounded in my understanding of Michigan’s public records laws, but rather my professional ethics 14 ARCHIVAL OUTLOOK Archivists’ expertise can improve public policy, but archivists must understand the policy landscape to effect meaningful change. Another Model A better approach is found in Kentucky, which removes the ambiguity found in Michigan by specifying, in law, that archives at public institutions are covered by one of fourteen public records exemptions: “Public or private records [ . . . ] having historic, literary, artistic, or commemorative value accepted by the archivist of a public 3 4
Archival Outlook March/April 2021: Page 14
