Freep to play hardball?

Submitted by Garvie Craw on September 8th, 2009 at 8:07 PM

I read this somewhere else - I have no proof. Sounds about right for the Freep, though. Would like to know if anyone with knowledge can confirm. Brian?

"The Free Press is going to FOIA cell phone records (including texts) from any cell phones issued by UM to the coaching staff. This is presumably in an effort to discover any text messages that show coercive action from staff/coaches to players who were not "All in" for UM practices."

Comments

hokiewolf

September 8th, 2009 at 9:11 PM ^

Using soft money of any type at a state school, whether it's from a University foundation or private donor, relaxes some of the rules but not all. For example, if I have a business meal paid for by the state: no booze. Foundation money: booze!

shorts

September 8th, 2009 at 8:37 PM ^

I'm not a cell company executive or anything, but my wife and I both worked for a particular cell company a few years ago and were told that text messages and phone records would only be released to outside parties with a subpoena. People requested this stuff all the time, and it was not up for negotiation.
I'm sure there was one in the Kilpatrick case because it was a criminal investigation, but I can't just FOIA all of your text messages. It doesn't work like that.
The only thing that might make this different is that they're school-issued phones, but I still highly doubt the Freep can get those records without a court order, and how would they get that with no criminal charges or investigation?

EDIT: I'd also be curious to hear a lawyer's take on this.

Blue2000

September 8th, 2009 at 8:52 PM ^

I'm glad you wrote this - I'm not sure what exactly a FOIA request would get the FREEP in this instance. Assuming that there were records of text messages that were sent back and forth, those records would presumably be in the possession of the cell phone companies, not the University. (Correct me if I'm wrong on this - my cell phone bill includes calls I've made and number of texts; it doesn't include the actual substance of each text message.) But the cell phone company isn't subject to FOIA, and would not be required to produce anything without a subpoena, as you point out. Having had to serve subpoenas on phone companies before (I'm an attorney), they're extremely protective of client information, lest they be accused of disclosing private information unnecessarily and losing their client base.

If the University does keep records such as actual text messages sent, then they would presumably have to turn them over. A public body cannot refuse to comply with a FOIA request unless the material requested falls under one of a few specifically-enumerated exceptions, usually which relate to privileged material (attorney-client communications, deliberative process documents, etc.).

I don't live in Detroit and didn't follow the Kilpatrick case, but I can't believe that his cell phone company would have turned over all of his records short of a subpoena, which as you point out, probably came during a criminal investigation that preceded the mayor's trial. Obviously there is no pending criminal investigation in "practice-gate," so the FREEP would be unlikely to get anything from the phone companies themselves.

Of course, I haven't issued or handled a FOIA request in a long time, so my memory on the nuts and bolts is a bit hazy.

BlueGoM

September 8th, 2009 at 8:34 PM ^

"cell phones issued by UM to the coaching staff."

I hope these guys are paid well enough to get their own cells. I know some companies will do that, or reimburse you for your purchase or something like that.

I'm no attorney but I'd think that if a student-athlete uses their own cell to text the coach it wouldn't fall under the FOIA, but if a taxpayer paid-for cell issued by the U to a coach probably would? Any lawyers here?

wildbackdunesman

September 8th, 2009 at 8:37 PM ^

Since it was just brought back up, I went ahead and sent this message to the FREEP...

Dear Free Press,

I am a teacher and use newspapers and newspaper websites in my class on a frequent basis. I often buy out of my own pocket newspapers for my class. The Detroit Free Press is the newspaper that I have used the most. It frustrates me to say that the Free Press has suffered a huge blow in my personal opinion.

I feel that the Free Press has done a horrible job in journalistic integrity when reporting on Rodriguez and the recent defense of the Rosenberg article avoided the pertinent criticisms of Rosenberg’s article rather than address them.

If I can’t trust the Free Press to properly report the things I know about, how can I trust the Free Press to properly report the things that I know little about? I am sorry to say that I will no longer use the Free Press at school or in my personal life, and that also includes the website.

Here are some criticisms that I have with the Free Press that have not been addressed by the newspaper. Whether or not the accusations turn out to be true, the journalistic integrity was compromised by the Free Press.

1) If the article will accuse Rodriquez of breaking an NCAA rule, the rule should clearly be described – including non-countable hours. This clearly misleads the public and journalistic integrity should include it automatically.

2) Even a subpar journalist should know to ask Clemons the following questions about his testimony and then relate them in the paper: A) Several of the activities Clemons mentioned in his example are not countable hours and therefore we need to know how much time he spent doing those to see if a violation actually occurred AND B) Some of those activities are not countable hours if they are voluntary, can Clemons prove (within NCAA rules) that those hours are not voluntary.

3) The criticism is not whether or not the Free Press should have used Freshman testimony, but if the Free Press deliberately asked misleading questions and took out of context their answers. Even if the Freshman brag about long workouts that does not indicate any NCAA rules violations (non countable hours), the Free Press should have dug deeper to figure out and explain how that testimony shows rules violations or not used the out of context quotes.

4) The average college football player nationally puts in 44.8 hours a week and yet it is possible that not one of these players is breaking the NCAA 20 hour limit. If the Free Press researched they would have found this information in the NCAA report released in 2008 that surveyed well over 600 schools and thousands of players. This information would have made the report more fair and would have tipped the Free Press off to the importance of countable hours and the necessity of mentioning it in their article.

5) How can the Free Press allow Rosenberg to write a condemning article on Rodriguez when he has publicly (Huge Radio Show) and previously admitted to despising Rodriguez.

6) Why is it kept a secret how many current players made these complaints in the article. Additionally, it is highly suspicious that Rosenberg conveniently forgot how many players were currently on the team when he was interviewed on the Huge Radio Show. It seems to me that the only players currently on the team are the 2 freshmen that were misled, if the article is misleading the public as to the amount players on the team.

7) If the article will imply that the team is struggling academically due to Rodriguez and his workouts, would it not be fair to balance it out with the team’s record high GPA and the coaching staff’s efforts to boost their player’s class attendance and assignment completion?

8) The Free Press has been guilty of past transgressions against Rodriguez in example: A) condemning Rodriguez as wanting to win at all costs for recruiting Feagin, when Rodriguez booted him off the team instantaneously and did in fact research the kids back ground. B) Add to the piling on of Rodriguez with Tiller’s Wizzard Hat Snake Oil comments, when 20 minutes of research would have shown that virtually every single BigTen coach including Tiller himself had done the exact same thing as Rodriguez – which is probably why Tiller backed off as he realized he was being a hypocrite.

The slander of Rodriguez by a man who clearly does not like the coach can hurt the University of Michigan, a football team that helps the state’s economy, and a man who does not deserve more slanderous journalistic attacks starting with the false shredding reports out of West Virginia.

Sincerely,
xxxxxxxxxxxxxxxxxxxx

ColsBlue

September 8th, 2009 at 9:03 PM ^

Great letter, loved the first three paragraphs. The long, itemized complaints were kind of a bummer. Here's an analogy to explain the Rosenberg hit piece to your class:

A kid stands in the hall, points at one of his classmates, and yells "this dude just shit his pants". Although he knows the dude didn't shit his pants, he also knows the majority of other kids will laugh, point, and remember. To make it worse, the bully holds the other kid down and "checks for skid marks". They're probably not there, but the whole scene leads to further embarrassment.

The Freep knows Michigan didn't shit it's pants but will now sniff out the skid marks just to be sure. Paul Anger will replace Rosenberg and Snyder as chief sniffer.

Va Azul

September 8th, 2009 at 8:38 PM ^

The state of Michigan FOIA summary from the attorney general states thusly

Public Records Exempt From Disclosure:
A public body may (but is not required to) withhold from public disclosure certain categories of public records under the Freedom of Information Act. The following public records are exempt from disclosure under this act:

--Specific personal information about an individual if the release would constitute a clearly unwarranted invasion of that individual's privacy.

The University may have grounds to deny such a blanket request

The full text can be found here...

http://www.michigan.gov/ag/0,1607,7-164-17337_18160-51242--,00.html

Blue2000

September 8th, 2009 at 8:57 PM ^

Under the federal FOIA, which contains a similar exemption, the "personal information" that this usually refers to is SSN, home address, medical records, etc. Assuming that the University kept things like actual text messages sent (and I doubt they do), I don't think this exception would apply, because the University could simply redact any personal identifying information and release simply the text messages themselves. I'd imagine that the FREEP is most interested in the substance of the texts anyways (though having the names to go with them would be nice).

GCS

September 8th, 2009 at 8:42 PM ^

Perhaps I'm being overly paranoid, but I suspect this is the first step in another propaganda volley, with "University tries to hide incriminating evidence from Free Press" showing up in future headlines.

shorts

September 8th, 2009 at 8:46 PM ^

Sadly, GCS is probably right. The Freep makes a ridiculous request, and when it is denied, the ensuing editorial or Rosenberg column will be something along the lines of, "What does Michigan have to hide?"
Just like Brian talked about in his post this morning, this is a way of winning the perception war without actually doing anything to refute the valid criticisms of the original "investigation."

jmblue

September 8th, 2009 at 8:53 PM ^

If no evidence of wrongdoing turns up, the Free Press will not win the perception war. Starting a witch hunt and then finding nothing tends not to do much for one's credibility. Most of the public will simply be convinced that the paper has gone batshit crazy.

Tha Stunna

September 8th, 2009 at 8:45 PM ^

Why are people worrying about this? If RichRod screwed up, we should find out about it; if he didn't, there's no big deal. The worst they'd be able to do is take text messages asking why arent u at practice and make them look slightly bad. By the time they come up with anything, people will already know to put the info in context, so it won't be a big deal.

There's no need to recircle the wagons. Nothing new has happened. You can go about your business.

wildbackdunesman

September 8th, 2009 at 9:02 PM ^

>>

Sadly, I think you are wrong. Most people don't bother to research information outside of what the Main Stream Media says. Heck, a lot of people don't ask info outside of what they hear at the water cooler.

Most adults I know that bring this issue up to me, do not even know a single major point of criticism that has been on this blog and they don't seem to be that responsive either to the fact that the Free Press could be wrong.

In fact, I have even heard 2 teenagers (falsely) say that the Free Press article included allegations of paying players.

I don't have much faith in the truth getting out wide spread no matter what it is.

The damage has been done and to some extent part of it will stick even if the allegations are proven to be BS.

The King of Belch

September 8th, 2009 at 8:47 PM ^

Having no knowledge of it, two questions come to mind: If Carty was able to FOIA students records and use them in his story--is there a difference?

And yes: Is the intent of the FOIA (well, maybe not "intent"--more like "side-effect") that anyone, anywhere, anytime, can petition under it and get just about anything they want in terms of private information?

Credit812

September 8th, 2009 at 11:55 PM ^

is them finding something that is completely unrelated to their original story, is not an NCAA violationo, but could be used to paint the coaching staff in a negative light -- an affair, or texts to other coaching staffs about strategy, or just about anything. Given the nature of text messages, it would be extremely easy to take them out of context and make them seem untoward. We know how the Free Press has dealt with context in their original story.
Not to get political, but this sounds to me kinda like what happened in the early 90s with the special prosecutor and President Clinton. They started out investigating a former real estate deal and ended up investigating anyone who ever knew them. It wasn't about facts, or a search for truth, it was about an agenda.

david from wyoming

September 8th, 2009 at 8:49 PM ^

IANAL, but I am a GSI and this would raise holy hell under the FERPA (Family Educational Rights and Privacy Act) laws. I don't know how athletes are treated, but I can not even comment on if a student is enrolled in my class. If someone from the local paper calls me looking for any type of info on a student on mine, all I reply with is dead air. My gut feeling is that is illegal and really shady.

Wolverine318

September 8th, 2009 at 10:32 PM ^

Agree, I am also a GSI for the Chemistry department. We are instructed by the department, to not even say one word to anyone other than the individual student about their grades and current class performance. We cannot even speak to the students' parents/guardians without the direct written permission of the student. Heck, legally I cannot even accuse a student of cheating if I see them looking at another student's test during an exam. The university bends over backwards to protect themselves from legal action by students.

david from wyoming

September 8th, 2009 at 11:48 PM ^

It's more then just class performance though. Home address, email address, phone number, gender, hell I can't confirm or deny the person is enrolled in my class! Any university has a whole lot of info about students and a newspaper would get laughed at for even thinking about asking for any of it.

Staff might be another issue, but any information at all concerning a student is NOT going to get in the hands of anyone other then that one student. Period.

BlueNote

September 9th, 2009 at 9:44 AM ^

ASSUMING the information is protected by FERPA, it could not be released under FOIA. They would have to seek the info under Michigan's version of FOIA, which is trumped by federal law (FERPA).

There is a federal FOIA, but that only applies to the federal gov't.

FERPA was not an issue in the Kwame scandal, so this provides a new twist in seeking the text messages.

Twisted Martini

September 8th, 2009 at 8:52 PM ^

Didn't some knuckleheads at Arkansas use FOIA to get his text record and they found out he was having an affair with his secretary or some such nonsense. IIRC, this was around the time when Mitch Mustain was there.

And as someone who has a company cellphone, it doesn't make a difference how much money I make, my phone is used primarily for work so they pay for it, simple as that.

harmon98

September 8th, 2009 at 8:59 PM ^

http://www.opengovva.org/in-the-news-mainmenu-72/current-headlines-main…

"That's what Thomas McAfee got last year when he asked the University of Arkansas for the text messages and other cellphone records of the school's head football coach, Houston Nutt. McAfee, an avid Arkansas football fan, wanted to see whether a school booster was unduly influencing Nutt's play-calling decisions.

Arkansas' public records law doesn't mention text messages specifically, but it does cover "electronic or computer-based information."

The logs McAfee got from the school show Nutt not only communicated with the booster but also frequently used his university-issued cellphone to text message a female TV news anchor. McAfee subsequently asked the school's board of trustees to investigate the conduct of Nutt, who is married. Nutt has denied any improper relationship."

me

September 8th, 2009 at 9:25 PM ^

Even in the Houston Nutt case, I don't believe they discovered the contents of the text messages, only that text messages were sent. They essentially asked for the phone bills and got those. From them they were able to see Nutt was having way too many communications with the wrong people.

BlueNote

September 9th, 2009 at 10:09 AM ^

Difference here is that the University is not trying to damage Coach Rod, as was the case at WVU after his departure. If the public university is inclined to release the information, it could perhaps be illegal (if covered under FERPA) but, in all practicality, no one is going to prevent the release.

Right now we have a situation where U of M will attempt to uphold the law, produce what it must, but also protect what it is obligated to protect under federal law.

Maize_and_Drew

September 8th, 2009 at 9:46 PM ^

this is related to the internal investigation going on? If the University has records of the texts, and were asked to hand them over to the investigators, maybe the Freep caught wind of that. Now they're trying to get the texts for themselves.

I'm still waiting to see where this story came from.

EDIT: If the above scenario is not correct, than this truly is nothing more than a witch hunt. Seriously Freep, don't you think you've pushed this issue enough already? You're playing with fire here.

tomhagan

September 8th, 2009 at 9:39 PM ^

OK>..this makes no sense... there ALREADY is an NCAA investigation in progess...why would the freep even bother with this now? other than to try and look good... but wtf...the NCAA would probably do the same thing anyway....

Seth9

September 8th, 2009 at 9:39 PM ^

First of all, the Free Press has already decided that they are willing to take quotes out of context. I don't think that I'm really going out on a limb when I say that they'd probably be willing to do the same with text messages. I'm afraid they'll take something as innocent as a joke (like the stuff Paterno said) and use it as "damning" evidence against Rodriguez.

Secondly, there's no reason to assume that the Free Press will restrict their probe to the practice-story. More serious matters, such as Justin Feagin* could be examined. This could be very bad if, for instance, Feagin and Rodriguez had slightly more phone calls or texts in the days immediately preceding Feagin's arrest. As Rosenberg has already insinuated that Rodriguez knew about Feagin's history before he was recruited, it isn't exactly hard to believe that he would be willing to write an article stating that he chose to ignore Feagin's actions while he was still on the team and only kicked him out when he was found out.

*I'm categorizing the Feagin issue as more serious than the Rosenberg story because I personally think that it is far worse for any of our players to commit misdemeanors/felonies than for all of them to (allegedly, with weak evidence to back up the allegation) practice too much. I don't blame Rodriguez for Feagin's actions, but they still annoy me a lot more than the practicing thing.

Blazefire

September 8th, 2009 at 9:41 PM ^

At this point, I would lock the free press and all associated press organizations out of any Michigan activities, athletic or otherwise. For that matter, if I were Jim Delaney, I would be screaming at the top of my lungs at these punks.

goblueclassof03

September 8th, 2009 at 9:46 PM ^

Let's FOIA the cell phone records of MSU, OSU, and Notre Dame. The Freep will only FOIA the cell phone records of RichRod b/c they are yet to understand the concept of reporting in context.