Executive Summary

The Freedom of Information Act (FOIA) is a fundamental tool for citizens to keep track of the affairs of their government. The Legislature intended the law to be quick, easy and inexpensive for citizens to use. The Mackinac Center's brief asks the court to retain the plausible and consistent meaning of the terms "public record" and "official function" and thereby maintain FOIA's utility.

All public records not exempted by MCL 15.243 are subject to FOIA. The courts have consistently prevented attempts by public entities and their employees to narrow the focus of the law through provisions in collective bargaining agreements.

In this case, the e-mail account was provided by the school district and contained a sign-on page that informed the employee that it was not private every time the employee used the account. The union officials/public school employees argued that if an individual e-mail did not discuss an "official function" of their job, then that particular e-mail should not be disclosed.

There is not much case law on the meaning of "official function," but the best reading looks broadly at the service provided — here, the creating of an e-mail system to facilitate communication between school employees and the public — versus viewing it narrowly, which would require that each individual communication be examined. The broader categorical approach is easier to apply and would allow discovery of records where employees were acting illegally or failing to perform their jobs. Under the union officials'/public school employees' reading, an individual seeking copies of spent checks would not be entitled to records that showed embezzlement, since criminal activity is not an "official function" under the narrow reading of the term. A broad reading, on the other hand, would prevent public officials from having to make discretionary calls about the importance of certain content in documents and would prevent a flood of litigation over those discretionary determinations.

In support of the broad reading, the Mackinac Center's brief analogized the term "official function" to the term "under color of [state law]" in 42 U.S.C. § 1983, which allows for suits when state or local officials engage in activities that violate federal constitutional law or federal statutes. The federal courts construed that term "under color of [state law]" broadly so as to capture the most improper conduct. That same consideration should apply here. FOIA was meant to facilitate citizens' oversight of their government, and the statute should be construed in that manner.