Amicus cover

Are documents created by a public official on a public computer system considered "public records" under Michigan's Freedom of Information Act? In a "friend of the court" brief filed in 2009, Mackinac Senior Legal Analyst Patrick J. Wright argued the answer is "yes" and warned that a failure to readily disclose such documents would seriously undermine the value of Michigan's Freedom of Information Act.

Unfortunately, the Michigan Court of Appeals in January held that e-mails generated on a government server are generally not subject to FOIA. If this ruling stands, Wright points out, it will severely limit the public's ability to monitor the activity of their government.

The Center submitted its brief in a case filed by an independent journalist requesting e-mails generated over a three-month period by three Howell Public Schools teachers who were union officials. Using school computers, the officials exchanged tens of thousands of e-mails, many of them in the context of negotiations for a new collective bargaining agreement.

Michigan's FOIA — as well as its Open Meetings Act — was passed in the aftermath of Watergate to provide the public with "full and complete information regarding the affairs of government and the official acts of those who represent them as public officials." State courts have long recognized that FOIA is meant "to deter efforts of agency officials to prevent disclosure of mistakes and irregularities committed by them."

But in its latest ruling, the Court of Appeals held that an e-mail is not a "public record" when it "falls expressly outside the performance of an official function, i.e. the furtherance of the instructional goals of the district." The holding means that the public could use FOIA to request checks related to the purchase of school supplies, but would not be able to access checks that school officials were using to embezzle funds, because embezzlement is not an official function.

Further, by rejecting a categorical approach, the Court of Appeals is setting up a situation where each e-mail must be individually litigated. The case at issue involved 20,000 e-mails; even if every single one of these e-mails was "personal," that much tax-funded work time being expended on personal matters is a concern.

It is expected that an appeal will be filed by the party that was denied access to the e-mails. At that time, Wright is likely to file another brief in support of government transparency.