MSU trustees' decision on Nassar docs' release violated state law, suit alleges

East Lansing — Women who were assaulted by serial pedophile Larry Nassar announced on Thursday litigation against Michigan State University for alleged closed-door discussions and decisions related to the long-awaited release of documents related to the Nassar investigation.

The suit, which alleges violations of the Open Meetings Act and Michigan Constitution, argues the MSU Board of Trustees held a discussion and some sort of vote behind closed doors to keep thousands of documents secret.

In April, the board indicated again that it would not waive attorney-client privilege on more than 6,000 documents that have been withheld from an investigation into the university's handling of complaints against Nassar.

The group is asking to depose members of the Board of Trustees about discussions that led up to their April announcement after days earlier indicating to Attorney General Dana Nessel that they would release them if another formal request were issued. Nessel made that request.

"Something happened, something happened behind closed doors," ahead of the meeting, said Azzam Elder, a Dearborn attorney who filed the case in Ingham County Circuit Court.

“We contend that board members made a behind-closed-doors secret decision not to release the records in blatant violation of the Open Meetings Act,” Elder said. “They followed that up with violations of the Freedom of Information Act when we requested emails that might show they discussed and made a closed-door decision on the matter in violation of law.”

The lawsuit seeks a court finding that MSU violated the Open Meetings Act and Freedom of Information Act and calls on the court to require the MSU board to vote publicly on the release or confidentiality of the documents.

“We're just here for what was promised," said former gymnast and survivor Angelika Martinez-McGhee, referring to campaign promises trustees made to release the documents.

Michigan State University declined to comment on pending litigation, but noted it had not yet been served with the lawsuit.

Universities have substantial leeway when it comes to compliance with the Open Meetings Act, thanks to a series of court decisions that found the Michigan Constitution gives universities autonomy from state government.

In 1999, the Michigan Supreme Court determined universities largely have power to govern themselves without legislative oversight, including when it comes to compliance with the state's Open Meetings Act. The decision has been relied upon by lower courts in throwing out complaints about votes and meetings of university governing boards.

Trustees have withheld the documents for more than six years from an investigation launched by the Michigan Attorney General's office, first under Republican Bill Schuette and now under Democrat Nessel. A circuit judge had ruled the documents need not be disclosed because of attorney-client privilege.

While the initial dispute over attorney-client privilege involved about 6,000 documents, the final number of documents — if or when they're released — will likely be much higher since the attorney general's requests over the years have sought more recent, ongoing communications related to the Nassar investigation.

In April, board Chairwoman Rema Vassar maintained any information that is factual is available through a public records request. But the university, she said, is unwilling to release the attorney-client privilege documents, noting ongoing litigation with MSU's insurance company and concerns that the release of the documents would be retraumatizing for victims.

Elder said "it's obvious" the board violated the Open Meetings Act in the lead up to the April announcement by coming to a consensus against release behind closed doors.

"They're going to try and throw out every argument to try and convince the court or judge, but we're ready for that," Elder said. "It's just really not that complicated."

The lawsuit filed Thursday alleges Elder, on behalf of MSU survivors, sent an April public records request to the university requesting emails, text messages and written documents related to the agenda, the privileged documents or voting that were exchanged among trustees and administrators in the lead up to the April 21 vote.

MSU delayed its response until July 6, when it provided 600 pages of documents that "were not in compliance with the FOIA request." When Elder expressed concern that MSU's search wasn't comprehensive, MSU performed a second search and said it did discover additional documents and gave itself a deadline of Aug. 4 to respond, according to the lawsuit.

The Aug. 4 response date would have been past the timeline Elder had to make an OMA complaint under the law. The delay in part prompted the filing of the suit, Elder said.

Elder on Thursday said the case was filed in circuit court instead of the Michigan Court of Claims because the victims want a jury of their peers to be the ultimate arbiters of their case, rather than a jurist who is potentially tied to the university.

"Michigan State University is very powerful," Elder said.

eleblanc@detroitnews.com