Statement of Facts

In March 2007, Intervenor Chetly Zarko began filing a series of Freedom of Information Act requests seeking e-mails to and from three Howell Public School teachers that postdated January 1, 2007.  The requests were made in the context of heated negotiations for a new collective bargaining agreement that was playing out in part in the local media market.  The teachers all had ties to the local Michigan Education Association affiliate, the Howell Education Association: (1) Doug Norton - president of the HEA; (2) Jeff Hughey - vice president for bargaining; and (3) Johnson McDowell - vice president for grievances.  Zarko also specifically sought any e-mails to and from Barbara Cameron, a MEA UniServ Director, and those three employees.[1]

The e-mails were all on the school district's computer system.  In order to use this system, a school employee had to first view a sign-in screen that contained the following warning:

     This is a Howell Public Schools computer system.  Use of this system is governed by the Acceptable Use Policy, which may be viewed at

     All data contained on any school computer system is owned by Howell Public Schools, and may be monitored, intercepted, recorded, read, copied, or captured in any manner by authorized school personnel.  Evidence of unauthorized use may be used for administrative or criminal action.

     By logging onto this system, you acknowledge your consent to these terms and conditions of use.

The acceptable use policy contained the following terms and conditions:

4. Users of District technology will be responsible for its use and misuse.  Appropriate use of District technology is defined as use in furtherance of the instructional goals and mission of the District.  Users should consider any use, which does not fall under this definition of appropriate use as being potential misuse for which a loss of technology use and disciplinary consequences may occur.

. . .

10. E-mail is not considered private communication.  It may be re-posted.  It may be accessed by others and is subject to subpoena.  School officials reserve the right to monitor any and all activity on the district's computer system and to inspect any user's e-mail files.

The four individuals, the HEA, and the MEA filed a "reverse-FOIA" suit seeking, in part, a declaration that the "personal e-mails to and from Plaintiffs are not 'public records'" and that the "e-mails to and from Plaintiffs and HEA members that pertain to union business are not 'public records.'"  Complaint at ¶¶41-42.

The school district parties provided Zarko with subject titles to numerous e-mails.  This allowed Zarko to eliminate around 75% of the list, but still left 5,500 e-mails.  Intervenor-Appellee's Brief at 2. These e-mails underwent an arduous in-camera review by a special discovery master at the behest of the trial court, and on October 2, 2008, the trial court declared that those e-mails were "public records."  On November 20, 2008, the trial court stayed that judgment pending this appeal.

[1] For ease of reference all of the parties that are either a union or affiliated with a union will be referred to as the union parties.  Howell Board of Education and Howell Public Schools will be referred to as the school district parties.  Finally, Chetley Zarko will be referred to as either Zarko or intervenor.