News Release: Court of Appeals Decision Undermines Freedom of Information Act, Says Mackinac Center Senior Legal Analyst

Ruling that exempts school officials’ communications from FOIA ‘turns each individual e-mail into a legal battle’

For Immediate Release
Thursday, Jan. 28, 2010
Contact: Patrick J. Wright
Senior Legal Analyst
or
Michael D. Jahr
Senior Director of Communications
989-631-0900

MIDLAND — A Michigan Court of Appeals decision issued yesterday significantly undermines the state Freedom of Information Act by allowing government officials to prevent access to many e-mails, said Patrick Wright, senior legal analyst for the Mackinac Center. Wright had filed the Center's amicus curiae brief in the case.

"The Freedom of Information Act is a pro-disclosure statute that allows the public to be informed as they participate in the democratic process," said Wright. "Prior to this decision, the courts recognized that the law is intended to help hold public officials accountable and prevent agency officials from hiding their mistakes and misconduct. This ruling ignores the plain language of the law and the purpose of enacting FOIA in the first place."

The case centered on a FOIA request for e-mails to and from three union officials who taught in the Howell Public Schools. These officials exchanged tens of thousands of e-mails on school computers over a three-month period, many of them in the context of negotiations for a new collective bargaining agreement. A political commentator filed the FOIA request to see if tax-funded lobbying was occurring and determine if the school e-mail system was being used for legitimate educational purposes.

"The FOIA law is meant to ease the public's access to information," said Wright. "The government has a short time to respond; the government must pay attorney fees if it loses; and appeals are supposed to be expedited. Instead of categorically allowing e-mail to be sought under FOIA, this decision turns each individual e-mail into a legal battle. For instance, the ruling would have made it easier for Kwame Kilpatrick to hide his illicit conduct in office by claiming that documents related to his perjury were not generated as part of his 'official function' as mayor. But FOIA was meant to expose waste, fraud and abuse, not help hide those things.

"The Court of Appeals expressed concern about the privacy of the teachers, but FOIA already includes a privacy exemption," Wright added. "Further, even if the individual e-mails are mundane, at some point the sheer volume of them can be an issue. Here, we had three public employees who cumulatively sent 20,000 e-mails over a three-month period, many during school hours."

Either the school district or the requesting party has the right to appeal the case to the Michigan Supreme Court or to file a motion for reconsideration with the Michigan Court of Appeals.

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