About This Document: A Brief of Amicus Curiae

On March 18, 2009, the Mackinac Center for Public Policy filed a brief of amicus curiae[*] with the Michigan Court of Appeals in Howell Education Association v. Howell Board of Education. The immediate issue is whether e-mails to and from public school employees on a school district e-mail system can be sought under the Freedom of Information Act (FOIA). But the case may be extremely important in determining whether FOIA continues to provide the public with a cheap and effective means of monitoring governmental action. In its amicus brief, the Mackinac Center sought a ruling that would maintain FOIA's usefulness.

The case arose in the context of negotiations for a new collective bargaining agreement for the Howell Public Schools. A political commentator filed a FOIA request for e-mails to and from three union officials who taught at the schools to see if tax-funded lobbying was occurring, to determine if the e-mail system was being used for legitimate educational purposes and to obtain more information about the bargaining dispute between the district and the union over health care benefits. The three union officials generated or received around 20,000 e-mails over a three-month period. The officials filed a "reverse-FOIA" suit seeking to prevent disclosure of the material.[†] The political commentator was allowed to intervene in the suit and was provided with the subject titles to these e-mails. He eliminated over 14,000 on that basis.

The crux of the officials' argument was that many of the e-mails were not "public records" under MCL 15.232(e), as they did not relate to an "official function." The trial court granted a temporary restraining order that prevented disclosure of the e-mails. A "discovery master" was appointed to review the e-mails, and eventually the trial court held that all of them could be disclosed under FOIA. The trial court nevertheless stayed its decision pending the school officials' appeal.

[*] "Amicus curiae" means "friend of the court." Thus, the Mackinac Center is not a litigant in this case, but rather an interested observer supplying additional legal reasoning for the Michigan Court of Appeals to consider.

[†] Joining this lawsuit was a fourth union official who did not teach at the school but whose e-mails within the school's e-mail system were part of the FOIA request.