Submitted on behalf of Kurt P. McCamman, General Counsel for NMU
On October 30, 2014 The North Wind published an article in which it alleged that “NMU signed a secret Starbucks deal” and a week later, published a follow-up article in which it again referred to the secrecy of the Agreement and cited “open records experts” who said “such a confidentiality agreement violated state laws for public institutions.” The conclusion that the Agreement violated state law is wrong and misleading.
The North Wind received the Agreement two days before the first article was published and nine days before the second article, yet it failed to report the significance of the clear language in the Agreement that took away confidentiality “as may be required by law.”
This reference to “law” includes the Michigan Freedom of Information Act (“FOIA”) law. In other words, NMU and Starbucks agreed that they would follow Michigan and other law to disclose the Agreement. Agreeing to follow the law does not violate the law.
The Agreement did require that NMU give notice before the Agreement was released, but this part of the Agreement again permitted disclosure “pursuant to the requirements of any applicable law. . . .” After receiving the FOIA request from The North Wind, NMU’s legal counsel reviewed the Agreements, researched the legal issues, including Michigan’s FOIA, and notified Starbucks and they agreed the Agreement should be produced.
NMU receives hundreds of requests for information about every conceivable topic and issue, from contracts to police reports to student demographics and grades. Each of these requests must be reviewed to ensure compliance not only with FOIA, but also with a number of other laws and privileges that restrict or prohibit what can be released. While this legal review took a few extra days, NMU’s intent was always to release the Agreement and it was released in full and free of charge.
Companies, especially major companies, often request confidentiality clauses and notice requirements in such agreements in an effort to avoid, to the extent permitted by law, disclosure of trade secrets and proprietary information to competitors. Both federal and Michigan FOIA law recognize that trade secrets or commercial or financial information are entitled to confidentiality exemptions from disclosure under certain circumstances. NMU did not try to withhold the Agreement under these exemptions to FOIA.
The Agreement between NMU and Starbucks is a legal contract and was not secret. The Agreement was negotiated and approved in the normal manner, including legal review. This process adheres to all applicable laws and requirements of public universities in Michigan.
Had anyone requested the Agreement at any time since it was first signed, NMU would have provided it, as it did to The North Wind. NMU agrees with The North Wind that transparency in government is important and NMU takes its obligations seriously. We trust that The North Wind agrees that fairness and objectivity are important in journalism and that it takes these obligations seriously.
Editors Note: In his letter to The North Wind initially denying the Starbucks contract to the newspaper, Vice President for Finance and Administration Gavin Leach said the contract had a confidentiality agreement from which the university was seeking release. A confidentiality agreement keeps the contents of a contract secret. The newspaper reported what the university reported to it.
FOIA law makes clear as does the 2008 Michigan Supreme Court Case, Detroit Free, Inc. v. City of Detroit that a confidentiality clause is not sufficient grounds to deny a FOIA request.
The newspaper also contacted two First Amendment experts who further affirmed that denying a FOIA request because of a confidentiality agreement is illegal for a public institution. The North Wind stands by its story.