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A judge authorized charges Tuesday against three MSU football players: Josh King, Donnie Corley and Demetric Vance.
Laura Trabka/Lansing State Journal

LANSING – Michigan State University lost a public records lawsuit against ESPN for the second time in two years.

The most-recent lawsuit stems from a Freedom of Information Act request ESPN submitted in February, for police reports containing allegations of sexual assault over several months as well as records of arrests. 

“As is not entirely uncommon under FOIA, the public body denied the request,” Michigan Court of Claims Judge Cynthia Stephens wrote in a ruling last month. “That denial sparked a sequence of events that is different from those that normally occur in conjunction with a FOIA request.”

What was different is that MSU sued ESPN and asked the court to issue a decision on whether some police reports could be withheld through a FOIA exemption relating to open police investigations. 

Stephens dismissed MSU’s lawsuit because the state’s FOIA law doesn’t allow for public bodies to sue people seeking records. A counter lawsuit filed by ESPN is still pending. 

The reports in question related to a sexual assault investigation that later led to charges against three MSU football players, who were then dismissed from the team. University spokesman Jason Cody said the records were released to ESPN after the players were charged in June. 

A spokesman for ESPN declined to comment. 

In a court filing, ESPN said lawsuits like the one MSU filed against it could have a “chilling effect” on others seeking public records. And Stephens agreed. 

“It does not take much imagination to think that the type of suit MSU wants to bring in the instant case could dissuade persons from making FOIA requests in the first instance out of fear of being sued by a public body,” Stephens wrote. “Such a chilling effect would be entirely incongruous with the statutory purposes of disclosure and open governance.”

Cody said the university didn’t intend to create a chilling effect, but wanted judicial guidance on whether the documents should be released. Prosecutors had asked that they not be released before a decision on charges. 

“We respect the judge’s decision,” Cody said. “And though we did not get a decision on the underlying issue that we sought, the judge is still going to rule on the counter claim and we will get the judicial guidance we sought.”

In August 2015, ESPN won a FOIA lawsuit it filed against MSU after the university redacted the names of student-athletes named in police reports. MSU was ordered to pay a portion of ESPN’s legal costs in that case.  

The MSU lawsuit is part of a growing trend. The Associated Press recently reported that government bodies across the nation are increasingly turning the tables on citizens who seek public records. Instead of granting or denying their requests, a growing number of school districts, municipalities and state agencies have filed lawsuits against people making the requests — taxpayers, government watchdogs and journalists who must then pursue the records in court at their own expense.

Contact Matt Mencarini at (517) 267-1347 or mmencarini@lsj.com. Follow him on Twitter @MattMencarini.