Attorneys to Fritz: Give up the emails

Anthony Viola

CLICK HERE TO READ THE LETTER FROM THE NORTH WIND’S ATTORNEY’S TO PRESIDENT ERICKSON

Attorneys representing The North Wind sent a letter Wednesday, Feb. 11 to President Fritz Erickson regarding administrator emails the paper requested under Michigan’s Freedom of Information Act. The university released the emails to The North Wind. However, many were significantly redacted.

The attorneys, Robin Luce Herrmann and Frank D. LoMonte, are asking Erickson to release the emails un-redacted, change The North Wind bylaws and restore the faculty advisor’s four hours of faculty release time.

According to the letter, “It became necessary for the student editor and their adviser to seek legal counsel because of a pattern of antagonism toward the newspaper, its staff and faculty adviser connected with The North Wind’s pursuit of news stories about the University’s contracting practices.”

The letter states that “…it appears NMU takes an unnecessarily negative view of FOIA requests.” But reputable journalism schools require students learn how to obtain records through laws such as Michigan’s Freedom of Information Act. Requesting information from NMU should not be seen as “antagonistic,” but “standard journalistic practice,” the letter states.

The attorneys took issue with the university’s use of the “frank communication” exemption under FOIA and argue that it is not applicable to the administrator e-mails. For a communication to be considered under that exemption, it “must be of an advisory nature and preliminary to a final determination of policy or action,” Herrmann and Lomonte said. Even if the communications are protected under the “frank communication” exemption the university must “[demonstrate] that the interest in frank communication outweighs the public interest in disclosure,” said the letter.

In addition, the attorney’s urge the university to release the redacted emails because “continued insistence on secrecy will breed further public distrust and suspicion.”

The North Wind adviser Cheryl Reed requested and received permission from The North Wind board in November to seek advice and pro-bono legal representation after the university delayed providing the Starbucks contracts, citing “confidentiality agreements.” First Amendment experts said such a delay was illegal.

Subsequently, The North Wind reporters alleged intimidation from faculty and administration after the publication of stories concerning the Starbucks contract. According to the letter, an editor was told by a faculty member the administration was unhappy with the Starbucks stories and if she continued to pursue those stories “it could hurt her professionally.”  The letter goes on to say the news editor was told “she individually and the newspaper were at risk of sanctions, including withdrawal of the newspaper’s funding,” if she continued writing about the university.

The 1969 U.S. Supreme Court case, Tinker v. Des Moines Community Independent School District, is held as precedent for student journalist rights. According to the letter, “the Court ruled that nothing short of a ‘substantial’ disruption of the orderly operations of the school could justify censoring students or punishing them for the content of their speech.”

The letter goes on to say, “A government agency (such as a public university or those acting under the authority of a university or on its behalf) is prohibited from censoring indirectly as well as directly.” Indirect censorship is seen, as the letter says, as “retaliatory or punitive actions short of literally ‘stopping the presses.’”

“In summary,” the letter said, “the law of the First Amendment is clear that administrators at a public university may not interfere, directly or indirectly, with the student editor’s decision to publish or not publish the content of their choice. This is true even if the publication receives financial support from the institution.” Vice president of Identity, Brand and Marketing Derek Hall was asked to comment but had yet to read the letter.

In other news, The North Wind requested all expense reports, travel records and budget reports of NMU’s Board of Trustees under Michigan’s Freedom of Information Act Wednesday, Feb. 11.