Court rules that MSU can’t sue ESPN for requesting open records



MICHIGAN — A Court of Claims judge threw out a lawsuit against ESPN, saying Michigan State University can’t sue reporters for requesting records under the Freedom of Information Act.

When a FOI request is denied, it often leads to legal disputes, but it’s usually the party requesting information who takes that step. That’s what makes MSU’s decision to sue ESPN for filing an open records request so unorthodox.

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It started in February of this year when multiple MSU football players and a staff member were suspended due to investigations of sexual assault. ESPN reporter Paula Lavigne requested related police reports under Michigan’s freedom-of-information act, known as FOIA. The school denied that request.

Then MSU went a step further and in May sued to receive a declaratory judgment from the Court of Claims. The school claims it was stuck between ESPN’s request, and the police’s request to keep all information related to the investigation private, and wanted a court to decide which took priority.

“We typically would take those records, redact them appropriately per the FOIA statute and then release them,” MSU spokesman Jason Cody said in a previous conversation with the SPLC. “In this specific case, we have a media outlet that’s asking us to do that and we also have the chief law enforcement officer in the county…telling us that the release of any information, even in redacted form, could potentially threaten the case.”

Court of Claims judge Cynthia Diane Stephens ruled that FOIA’s language was specific in granting parties who are denied records the chance to appeal that decision in court, not the other way around. Therefore, the act could not be used to justify the record-holding party preemptively suing those requesting the records.

“There is no reciprocal provision in the act granting a public body the type of ‘race-to-the-courthouse’ cause of action for which MSU advocates in this case, nor does the act in any sense permit a public body to preemptively sue a requesting person under the act.”

After the ruling, Cody said, “Though the court ruled that we we did not have legal standing to go about getting that guidance in the way we did, there was a counterclaim filed by ESPN that the court is going to rule on which will give us that guidance.”

While “sue-the-requester” lawsuits are unusual, they’re not unique. The student newspapers at both the University of Kentucky and Western Kentucky University are defending themselves in court now against suits brought by their own institutions to block the release of public records. What makes these cases potentially worrisome to journalists is that the government agency is forcing cash-strapped news organizations into court in cases where the news organization may not have been prepared to spend money fighting for access. Public records laws normally put the journalist, not the agency, in the position of deciding which records are important enough to spend potentially tens of thousands of dollars suing over. When the agency initiates the lawsuit, the journalists have no choice but to put up a defense.

SPLC staff writer Danielle Dieterich can be reached by email or (202) 833-4614.

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