2. “Purely personal” e-mails

The second argument is that "purely personal" e-mails are not public records.  Thus, the union parties contend that the first step of the Bradley analysis is not met, and that the district is under no obligation to turn over these e-mails.

MCL 15.232(e) states:

     (e) "Public record" means a writing prepared, owned, used, in the possession of, or retained by a public body in the performance of an official function, from the time it is created. Public record does not include computer software. This act separates public records into the following 2 classes:

     (i) Those that are exempt from disclosure under [MCL 15.243].

     (ii) All public records that are not exempt from disclosure under [MCL 15.243] and which are subject to disclosure under this act.


The union parties note that, "Under this definition, in order to constitute a 'public record' the writing must pertain to the 'official function' of a public body."  Plaintiffs-Appellants' Brief on Appeal at 15.  Oddly, it is not until their reply brief that the union parties make mention of the only Michigan Supreme Court wherein the official-function question is discussed: Kestenbaum v Michigan State University, 414 Mich 510 (1982).

In Kestenbaum, a student requested a magnetic tape that contained a list used to create a paperback directory of students.  The university denied the request on privacy grounds, and this Court affirmed.  At the Michigan Supreme Court, the court divided 3-3, which led to this Court's decision being affirmed.  Justice Fitzgerald wrote the lead opinion, and his opinion was a little unclear on whether the student directory was a public record.  At first he wrote, "A list of students appears to be a public record, i.e., 'a writing prepared, owned, used, in the possession of, or retained by a public body in the performance of an official function.'"  Id. at 521.  Soon thereafter, he indicated, "Whether a list of students is the kind of information envisioned by the Legislature as appropriate for disclosure is debatable."  Id. at 522.  He then indicated that he would presume, without deciding, that the list was a public record and move on to the privacy question.  Id.

Justice Ryan wrote the other opinion.  He directly addressed the official-function question:

     The expression "in the performance of an official function" is not defined in the statute. Accordingly, the term must be construed according to its commonly accepted and generally understood meaning. The need to exclude unofficial writings belonging to private citizens from the definition of "public record" is apparent when one recognizes that a state employee is included within the definition of a "public body". M.C.L. § 15.232(b)(i). A public body may not thwart disclosure under the FOIA by the simple expedient of sending sensitive documents home with its employees. However, unofficial private writings belonging solely to an individual should not be subject to public disclosure merely because that individual is a state employee.

     We have no difficulty in concluding that the magnetic tape involved in this case was prepared, owned, used, possessed, and retained by the defendant public body "in the performance of an official function." As the circuit judge aptly noted in his opinion, "Indeed, it would be useless to argue [that] such an institution could function without such a list of students." The specific magnetic tape sought in this litigation was used in the preparation and publication of a student directory, a publication our brother describes as compiled "to ease communications within the campus community" and likely to prevent "a great deal of havoc." Facilitating communications among students, preventing a great deal of havoc, and simply operating the university in an efficient manner are all "official functions" of Michigan State University. Since the requested "writing" was prepared, owned, used, possessed, or retained by Michigan State University in the performance of these official functions, we hold that the magnetic tape is a "public record."

Id. at 539 (Ryan, J.) (emphasis added).

The union parties did cite three cases that they believe should guide this Court's analysis on whether the e-mails are public records.

In Detroit News v Detroit, 204 Mich App 720 (1994), a newspaper requested records of all calls to and from Detroit's mayor at either the mayor's office or at Manoogian Mansion, the mayor's city-provided residence.  Id. at 721.  The city found a number of telephone bills, but claimed that they were "not public records."  Id. at 722.  The trial court noted that the bills were paid by the city, but it held "the records were not used in the conduct of the city's official business."  Id.

This Court held:

     The telephone bills requested by the News are expense records of public officials and employees. That they are prepared by a private entity dictating their form and content is of no moment. See OAG, 1979-1980, No. 5500, p. 266 ("a [public body] must release a report of the performance of its official functions in its files, regardless of who prepared it" [emphasis added]). The statute does not require that the record be created by the public body, or even created at its behest. Rather, it is ownership, use, possession, or retention in the performance of an official function that is determinative.

Id. at 724.  But this Court stated, "This is not to say that mere possession of a record by a public body is sufficient to make it a public record."  Id. at 724-25.

In Walloon Lake Water System, Inc v Melrose Township, 163 Mich App 726 (1987), a citizen submitted a letter about the water system to a township board of trustees, and the letter was read aloud.  A second citizen sought a copy of the letter.

This Court first determined that the letter was a public record:

At the township meeting, the letter was read to the board, which considered its contents to decide that the subject of the letter did not require township action. Without opining as to what extent an outside communication to an agency constitutes a public record, we believe that here, once the letter was read aloud and incorporated into the minutes of the meeting where the township conducted its business, it became a public record "used ... in the performance of an official function."

Id. at 729-30.  To bolster its holding, this Court discussed the purpose of FOIA:

To be fully aware of the affairs of government, interested citizens are entitled to know not only the basis for various decisions to act, but also for decisions not to act. To further this purpose, we must construe the FOIA in such a manner as to require disclosure of records of public bodies used or possessed in their decisions to act, as well as of similar records pertaining to decisions of the body not to act. Under this holding, not every communication received by a public body will be subject to disclosure. But where, as here, the content of a document is made part of the minutes of the body's meeting where it conducts its official affairs and the content of the document served as the basis for a decision to refrain from taking official affirmative action, that document must be considered a "public record," as defined by the FOIA.

Id. at 730-31.

Hess v Saline, unpublished opinion of the Court of Appeals decided May 12, 2005 (Docket No 260394),[2] concerned a FOIA request for a videotape of a city council meeting.  The meetings had been filmed by a third party so that they could be broadcast over a local cable channel.  When the council went into closed session in a separate room, the camera remained on and apparently captured a part of the  closed-session conversation that was audible through the door.  This unedited version was aired twice and was obtained by one council member.

A second member sought the unedited tape, and that request was denied.  This Court's opinion does not explicitly indicate whether the public body ever received a copy of that tape.  But the fact that the suit was filed and the fact that this Court did not focus on the possession question implicitly indicate that the public body must have obtained a copy of the tape.

This Court held that the closed-session portion of the unedited tape was not a public record because it was not created during an official function:

     We agree that the unedited videotape was not a public record. The unedited version of the videotape includes the segment where the city council had adjourned and was conducting its official business outside the chambers. Although the chambers remained open to the public during this period, no official city business was conducted during that time. Accordingly, that portion of the videotape does not meet the definition of a public record in MCL 15.232(e).

Slip opinion at 2.

The union parties read these cases to mean that only those e-mails that were made "in the context of their capacity of public employees/teachers" can be obtained under the FOIA.  Plaintiffs-Appellants' Brief on Appeal at 17.  They contend that disclosure of the disputed e-mails "would not serve to inform the public regarding the affairs of government or the official acts of public employees."  Id.

The Michigan Supreme Court recently discussed statutory interpretation:

     When interpreting a statute, our primary obligation is to ascertain and effectuate the intent of the Legislature. To do so, we begin with the language of the statute, ascertaining the intent that may reasonably be inferred from its language. In interpreting the statute at issue, we consider both the plain meaning of the critical word or phrase as well as its placement and purpose in the statutory scheme. As far as possible, effect should be given to every phrase, clause, and word in a statute. 

United States Fidelity Ins & Guar Co v Michigan Catastrophic Claims Ass'n, 482 Mich 414, 423 (2008) (quotation marks and footnote omitted).

Hence, the current case requires a review of the language of the FOIA to determine the Legislature's intent. The relevant sentence of MCL 15.232(e) states, "'Public record' means a writing prepared, owned, used, in the possession of, or retained by a public body in the performance of an official function, from the time it is created."  The words "in the performance of an official function" constitute an adverbial prepositional phrase that modifies how a "public record" is "prepared, owned, used, [possessed], or retained by a public body."  This phrase is relevant because it is the one to which the union parties' have appealed.

But given the close scrutiny we are giving this language, we should examine the statute in its entirety. The remainder of the sentence reads, "from the time it is created."  This phrase is likewise a prepositional phrase that serves as an adverb.  Determining its exact meaning, however, requires some care, since the pronoun "it" in the phrase could, at first blush, refer to three possible antecedent nouns in the sentence: (1) "writing"; (2) "body" (in the phrase "public body"); and (3) "function" (in the phrase "official function").[3] Only the first option causes any analytical complexity.

A moment's reflection shows that "it" cannot refer to "writing." True, there would be no problem if the sentence spoke only of "a writing prepared" by a public body, since the phrase "from the time it is created" would be construed to mean, " 'Public record' means a writing prepared ...by a public body in the performance of an official function, from the time the writing is created." Such an interpretation would be consistent with the intent of the FOIA.

The idea that "it" refers to "writing" breaks down, however, when the remaining participles — "owned, used, [possessed], or retained by" — are considered. With these words, we would be forced to read, " 'Public record' means a writing ... owned, used, [possessed], or retained by a public body in the performance of an official function, from the time the writing is created." While such a reading does not constitute a clear grammatical error, it is wrong, and it would undermine the intent of the FOIA.

For instance, a scientific study requested of a private research firm by the Legislature would not be subject to the FOIA under this construction of the language, since the testimony was created before it was "owned, used, [possessed], or retained by a public body in the performance of an official function." And consider the phone bills at issue in Detroit News. It would be hard to say that the documents were "owned, used, [possessed], or retained by" the city of Detroit from the moment the bills were created, since they were originally generated by the phone company.[4] In other words, to assume that "it" means "writing," this Court would be compelled to overturn Detroit News

This reading could produce a cleavage in results depending on who sent the original e-mail.  An e-mail that was sent from the UniServ Director to a teacher might not be a public document because it was created somewhere else, while an e-mail from that teacher to the UniServ Director would be.  Now since most replies include the original message, there might not be that much realistic difference as most replies from the teachers, which would be created by a public body, would encapsulate the original message from the UniServ Director and would be a public document subject to a FOIA request.  But it could be possible that a UniServ Director's missive to a teacher would not be responded to via e-mail, and this e-mail might not be subject to a FOIA request.

If "it" does not refer to "writing," it must refer to "public body" or "official function." If "it" means "public body," then the analysis is simple.  Any "writing prepared, owned, used, [possessed], or retained by a public body" is subject to a FOIA request from the moment of the public body's creation, and the document's point of origin is irrelevant.  Under this reading, it would appear that the Legislature wanted to make certain that any public document that predated the enactment of the FOIA statute could be subject to a FOIA request.  This is a logical reading that would not call into question the holding in Detroit News.

The final possibility is that "it" refers to "the official function."  In this case,  FOIA could apply to any document that postdates the creation of an official function.  Such a function could be the maintenance of a public school system or the creation of an e-mail system to facilitate school business.  This reading would also not call Detroit News into question.

Ultimately, regardless of the meaning of the phrase "from the time it is created," this Court still must give meaning to the words "official function."  The union parties' view would unnecessarily and improperly limit the reach of the FOIA.  A couple of examples will prove the point.  Say that a government official was in charge of a $100,000 account, and that this governmental official authorized a purchase of staples for $280.37, paid the amount, and then wrote himself a check for the rest of the money in the account.  According to the union parties, the check used to pay for the staples would be subject to the FOIA, but the check that the official used to embezzle funds would not, because embezzlement is not an "official function."

A second example relates to the recent mayoral text-messaging scandal in Detroit.  There, in the course of a lawsuit, text messages between the mayor and his chief of staff that were sent through the chief's city-provided cell phone were subpoenaed.  These messages were not provided until after the multi-million dollar verdict was returned in a wrongful termination trial related to the dismissal of two police officers.  In the course of settling the request for attorney fees and the case itself (i.e., reaching a settlement and preventing an appeal), the text messages were disclosed and showed that the mayor and his chief of staff had committed perjury.  A settlement was reached and local newspapers filed a FOIA request for that agreement and any pertinent documents related to it. 

The Circuit Court held that the settlement agreement and the records related to it were public documents.  This eventually led to the mayor's resignation and disbarment, a short term in jail, and a $1,000,000 restitution order.  But under the union parties' test, none of this should have been disclosed.  The original settlement in the wrongful termination trial was an unlawful attempt to hide perjury and was not the mayor's "official function."  Further, according to the union parties, if a citizen had submitted a FOIA request for the text messages on the city-owned device, he or she would not have been entitled to them because their purpose — to further a wrongful termination of city personnel — is not an "official function" of city government. Under the union parties' argument, the text messages were therefore not "public records."

Clearly, people who wish to "fully participate in the democratic process" may want to determine whether public officials are acting improperly or illegally on the job.  The union parties' construction of "official function" would prevent citizens from using the FOIA to do so.

The best way to read "official function" is to analogize it to the manner that "under color of state law" is read in 42 U.S.C. § 1983.  The Fifth Circuit stated: "Action taken 'under color of' state law' is not limited only to that action taken by state officials pursuant to state law.  Rather, it includes: 'Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law. . . .'"  Brown v Miller, 631 F2d 408, 411 (5th Cir 1980) (citations omitted).  Thus, federal § 1983 suits can be brought where a police officer beats a prisoner, despite the fact that such a beating is a violation of state law. 

This reading is in line with Justice Ryan's opinion in Kestenbaum.  There he indicated that facilitating communication, preventing havoc, and simply operating a school in an efficient manner are all "official functions."  Kestenbaum, 414 Mich at 539 (Ryan, J.).  In other words, it is the e-mail system in the general sense — not each specific e-mail — that must be subjected to the "official function" test, even if the individual e-mails involve activities that are not properly part of an official's prescribed duties.

If this Court were to determine that this statute is ambiguous, consideration must be given to the statutory scheme.  The FOIA is meant to allow the citizens easy access to governmental information so that the citizens can fully participate in the democratic process.  The union parties' proposed interpretation would require looking at each bit of information in isolation to determine if it dealt with an "official function."  This discretionary review would increase the amount of time (and thereby costs) that a public body needs to respond to FOIA requests. These costs would be passed on to citizens making the requests.  Further, the discretionary decisions could lead to more litigation.  Remember that in this case, 5500 e-mails were reviewed in camera and that this number could have been many times larger if Zarko had not eliminated approximately 75% of the scope of his request based solely on a review of the subject lines of the e-mails.  Currently, Zarko's request is about two years old, and he has not seen a majority of the documents that he requested.  This situation has occurred despite a statutory limit of 15 business days for a response and a statutory promise that legal conflicts will be expedited.

The e-mails to and from the teachers on the school-district provided system were part of the official function of a public body and thus qualify as public documents that can be obtained under the FOIA.

[2] 2005 WL 1124063.

[3] Admittedly, because of this initial ambiguity, this sentence probably should not serve as a model of legislative draftsmanship.

[4] It could conceivably be argued that "created" is used in the obscure sense of "investing with a new rank or function," and that a public record is therefore "created" from the moment the government entity uses it, possesses it, retains it, or obtains ownership.  But this construction would render the phrase "from the time it is created" superfluous, because it could be dropped from the sentence without changing the sentence's meaning. A reading that renders statutory language nugatory is generally to be avoided.