3. “Internal union communications” e-mails

Most of the union parties' arguments related to "internal union communications" mirror those made for "purely personal" e-mails and are unavailing for the same reasons.  The additional arguments provided in regard to "internal union communications" do not lead to a different result.

The union parties contend: (1) the current collective bargaining agreement between the school district and the HEA allows HEA to use the e-mail system to communicate with its members; (2) federal labor law makes employer communications systems a mandatory subject of collective bargaining.

It is unclear if the union parties mean to rely on Traverse City Record Eagle v Traverse City Area Public Schools, 184 Mich App 609 (1990), a case that was cited but not discussed in their brief here.  That case was discussed by the union parties while seeking the temporary restraining order at the trial court.  To the extent that it is relied upon, it is largely inapplicable.

That case arose when a newspaper sought a copy of a tentative collective bargaining agreement between a union and school district.  The newspaper had received a copy of the agreement, which by then had been ratified by the two sides, and this Court noted that the conflict was moot.  Id. at 610.  Despite this fact, this Court analyzed the trial court's decision to prevent disclosure of the tentative agreement.

This Court applied a standard of review — "clear error" — that the Michigan Supreme Court has since clarified is inappropriate for legal determinations, which are supposed to receive de novo review.  This Court ratified the trial court's determination that release of a tentative collective bargaining agreement might hamper the negotiating process.  Id. at 612-13.  It held that the trial court had committed no clear error in ruling that the "frank-communication" exemption of MCL 15.243(1)(m)[5] allowed the school district to shield the agreement from disclosure.[6]

Here, the union parties are not seeking to prevent release of a tentative collective bargaining agreement, and even if they were, this should not prevent disclosure.  Contracts between public employers and public employees necessarily involve the spending of public tax dollars.  Education spending is by far the largest portion of the state budget.  Collective bargaining agreements are principally about salaries, benefits and working conditions.  The FOIA explicitly allows for the disclosure of school district employees' salaries.  MCL 15.243a.  Pension information of public employees can also be properly sought under the FOIA.  Detroit Free Press, Inc v Southfield, 269 Mich App 275 (2005).  This Court has clarified: "[W]e note that a public official has no reasonable expectation of privacy in an expense the public bears to pay for income or any other benefit. We have consistently upheld the disclosure of publicly funded incomes and other benefits for more than 25 years."  Id. at 285.[7] Further, the Michigan Supreme Court has rejected any contention that there is something inherent in the Public Employment Relations Act, MCL 423.201 et. seq., that supersedes the FOIA.  Kent Co Deputy Sheriff's Ass'n v Kent Co Sheriff, 463 Mich 353 (2000).  Thus, to the extent that Traverse City Record Eagle is relied upon, it is inapposite.

As noted above, the union parties' argument that a collective bargaining agreement can contract away a public body's obligations under FOIA has been rejected on three separate occasions by the Michigan Supreme Court.[8] The union parties' mandatory bargaining argument might have some validity if this case were related to a claim of an unfair bargaining practice under PERA, but this is a FOIA case.  If, in an appropriate case, the Michigan Supreme Court were to hold that teachers' unions' use of school districts' e-mail systems was a mandatory subject of collective bargaining and must be allowed in certain circumstances, then that court might have to reconcile that holding with its prior rulings that FOIA obligations can not be contracted away.  But right now, the law is clear that collective bargaining agreements cannot obviate FOIA obligations.

[5] At the time of the Traverse City Record Eagle case, the exemption was located at MCL 15.243(1)(n).

[6] It is likely that the union parties do not seek a ruling that MCL 15.243(1)(m) applies because that would give the school district parties the discretionary right to disclose the disputed documents:  "It is worth observing that the FOIA does not prevent disclosure of public records that are covered by § 13 exemptions. Rather, it requires the public body to disclose records unless they are exempt, in which case the FOIA authorizes nondisclosure at the agency's discretion."  Herald Co v Bay City, 463 Mich 111, 119 n. 6 (2000).

[7] While perhaps not directly applicable, it should be noted that the Michigan Constitution indicates that public expenditures are supposed to be disclosed to the public:

All financial records, accountings, audit reports and other reports of public moneys shall be public records and open to inspection. A statement of all revenues and expenditures of public moneys shall be published and distributed annually, as provided by law.

Const 1963 Art 9 § 23.

[8] Bradley, 455 Mich at 303; Kent Co Deputy Sheriff's Ass'n, 463 Mich at 361 (quoting Bradley); and Detroit Free Press, 480 Mich 1079 (citing Kent County Sheriff's Ass'n).