John Engler involved in Michigan State misstep, emails show

Gina Kaufman , Joe Guillen | Detroit Free Press

Michigan State University interim President John Engler was directly involved in the crafting of a detailed public rebuke of a rape accuser’s allegations, a statement that potentially violated a federal privacy law and endangered grant funding for sexual assault counseling services, the Free Press has learned.

Emails obtained by the Free Press show Engler and his closest advisers sharing “essential facts” and edits to be included in the university’s official response to a lawsuit, which accuses MSU counseling staff of discouraging a student from reporting she was raped by three basketball players. Among the emails was one where a spokeswoman acknowledged they had moved quickly “to get materials the President wanted out the door.”

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The statement was posted on MSU’s website and sent to reporters April 11. It said allegations in the lawsuit were untrue and refuted the claims with information about the woman's counseling center history.

MSU’s decision to release details about the woman may have violated a federal student privacy law, experts previously told the Free Press, because the information could be used to piece together her identity. Details in the statement included when the woman sought counseling, services provided to her and that she never filed a police report or Title IX complaint.

The statement prompted a caution to the university from the state’s Department of Health and Human Services about confidentiality rules that are a condition of funding for MSU’s counseling services. Then, two weeks after the statement, a state official scolded the university in a letter, writing the “incident brings into question MSU’s ability to provide safe and confidential services to these victims” of sexual assault.

The state is so concerned, officials are planning a visit to MSU this month to review its confidentiality policies.

The emails reveal another controversy involving Engler and his top aides since the former Michigan governor was tapped to lead the university following former president Lou Anna Simon's resignation in the midst of a widespread sexual assault scandal involving Larry Nassar, a once-prominent gymnastics doctor who worked at MSU. In recent months, Engler has drawn headlines for making a controversial statement about ESPN and for offering $250,000 to a Nassar survivor during a meeting — a characterization Engler has disputed.

MSU spokeswoman Emily Guerrant acknowledged to the Free Press that Engler was involved in creating the university's response to the lawsuit and said the intent was “to say that MSU felt like it had handled this situation appropriately,” not to jeopardize the woman’s identity.

Karen Truszkowski, the woman’s attorney, said she’s puzzled by MSU’s disclosure of her client’s counseling history.

“They certainly had a right to release a statement,” she said. But “they certainly did it in a hasty manner. It wasn’t necessary that they release it that day or the day after and, had they taken a little time, perhaps they would have been a little bit more judicious about what information they chose to disclose.”

MSU’s statement has since been removed from the website and replaced with one from Engler saying the university has not discouraged sexual assault reporting and “we regret that we provided an unnecessary amount of detail to convey that point, which has been perceived by some as violating privacy expectations.”

Guerrant said the university, though, still believes it was within its legal right to release the statement.

This latest controversy comes as the university struggles to overcome criticism that it has mishandled scores of sexual assault cases. Just last month, the university agreed to a $500-million settlement to end lawsuits by hundreds of women who said they were sexually assaulted by Nassar.

RELATED: MSU reaches $500 million settlement with Nassar victims

The Free Press received roughly 90 emails under the state Freedom of Information Act from MSU related to the creation of the April 11 statement, but, in many cases, the university either partially or entirely blacked out information, making it impossible to know exactly what Engler, the university’s top attorneys and communications staff shared back and forth.

While MSU withheld information in the emails — claiming attorney-client privilege, privacy exemptions and security concerns — the university released private information about the accuser.

The consequence was a reprimand from the state.

Debi Cain, acting director of the state’s Division of Victim Services, said the state would conduct an in-person visit to review the university’s confidentiality policies and training practices and to gather information “to determine the circumstances leading up to and surrounding the April 11, 2018 disclosure,” according to her April 27 letter to Tana Fedewa, director of the MSU Sexual Assault Program.

Bob Wheaton, a spokesman for the state’s Department of Health and Human Services, said the site visit is scheduled for Wednesday.

MSU is required to provide confidentiality as a condition of federal Victims of Crime Act funding administered to the MSU Sexual Assault Program. The program has received more than $490,000 in funds, according to state Health and Human Services, which administers the funds. This includes additional funding — $89,610 — announced just weeks before the controversial statement. Those funds help pay for two new therapists and two additional victim advocates.

Cain's letter said “corrective action may be required based on the results” of the on-site visit.

But Wheaton said, “the federal regulations do provide for revoking funding if these confidentiality requirements were violated. At this point, we’re not looking to do that.”

The letter wasn’t the first correspondence from the state. Emails show that on April 12 — a day after the statement was released — Cain had a staff attorney with the Michigan Domestic and Sexual Violence Prevention and Treatment Board send links to federal laws about confidentiality rules to Carol Viventi, special counsel to Engler.

Viventi was one of several university representatives involved in email discussions regarding the statement, including Guerrant; attorney Kristine Zayko, who recently resigned from her job as MSU’s acting general counsel; attorney Robert Young, the former Michigan Supreme Court chief justice who was hired to represent the university in the wake of the Nassar scandal and in May was named MSU's general counsel, and Associate Athletic Director/Communications Matt Larson, who provided a statement from basketball coach Tom Izzo denying prior knowledge of the allegations.

Along with the process of building the statement, the emails also suggest friction among MSU attorneys and Young, who, at the time, was an outside attorney MSU had hired.

Young emailed MSU attorney Robert Kent about not meeting deadlines — a message Zayko later characterized in an email to Engler as “out of line.” She requested a meeting to discuss Young’s role.

Details of the dispute are limited because other information was redacted from the emails that were produced for the Free Press. Guerrant confirmed Zayko emailed Engler, but wouldn't explain the disagreement.

It’s clear from the emails and interview with Guerrant that Engler was providing input about the lawsuit response, but information removed from the emails by the university leaves unclear what directives he gave.

The redactions are so extensive that even MSU employees’ email addresses that can be easily found on the university’s website were blacked out. The university justified the deletions by citing a section of Michigan’s FOIA law that exempts “a public body’s security measures.”

This response from MSU is not consistent with the way it has handled other FOIA requests.

Documents previously received by the Free Press include the email addresses of employees — such as high-ranking officials like then-Athletics Director Mark Hollis and football coach Mark Dantonio.

Redacting the email addresses further obscured Engler’s role. For most officials, the redactions did not hide their identities because their names appeared next to the blacked-out email addresses. But that’s not the case with Engler, whose name isn't visible in the sender or recipient field, but Engler's signature does appear at the end of two emails.

One email with Engler’s signature line was to Young. The subject line is “draft.” That email was forwarded to Guerrant from a redacted email address with the message: “Emily G – look at this.” Guerrant confirmed the redacted email address belonged to Engler.

Free Press attorney Herschel Fink said Michigan law does not allow for the redaction of public officials’ email addresses. He called MSU’s reason for blacking out the email addresses “phony.”

“The purpose of the Freedom of Information Act is to make government accountable,” Fink said. “Michigan State University still hasn’t learned that fundamental truth. Most of their redactions and their claims of exemption are made up.”

Contact Gina Kaufman: 313-223-4526 or gkaufman@freepress.com. Follow her on Twitter: @ReporterGina

Contact Joe Guillen: 313-222-6678 or jguillen@freepress.com. Follow him on Twitter: @joeguillen

Free Press staff writer Chris Solari contributed to this report.