Teacher union emails are not public records under Michigan FOIA
The Michigan Court of Appeals has ruled that personal emails sent by teachers’ union leaders are not public records under Michigan’s Freedom of Information Act (FOIA) “solely because they were captured in the [school district] email system’s digital memory.” The dispute began when a private citizen made a series of FOIA requests to Howell Public schools (HPS) for emails sent to and from HPS teachers who are members and officials in the Howell Education Association (HEA). HEA objected to release of union communications sent between HEA officials and HEA members. HEA filed suit in state court against HPS seeking to prevent release of the emails and alleging that emails were not “public records” as defined under FOIA. Counsel for HPS noted that there was no reported case law regarding whether personal emails or internal union communications maintained on the computer system of a public body were public records subject to disclosure under FOIA and suggested a “friendly lawsuit” to determine FOIA’s applicability to the citizen’s request. The state trial court concluded, “any emails generated through the [school’s] email system that are retained or stored by the district, are indeed public records subject to FOIA.”
The appellate court reversed and remanded the case to the trial court. It noted that the FOIA statute, which was adopted in a less technologically advanced time, must be applied “in the context of today’s ubiquitous email technology.” It pointed out that in order for the emails at issue to be considered public records they must have been stored or retained by [HPS] in the performance of an official function.” It found “[t]here is nothing about the personal emails, given that by their very definition they have nothing to do with the operation of the schools, which indicates that they are required for the operation of an educational institution.” It found that “[e]mails have in essence replaced mailboxes and paper memos in government offices.” The appellate court added, “Schools have traditionally, as part of their function, provided teachers with mailboxes in the school’s main office. However, we have never held nor has it even been suggested that during the time those letters are “retained” in those school mailboxes that they are automatically subject to FOIA.” It noted that its position was “consistent with federal cases interpreting whether an item is an ‘agency Record’ under the federal FOIA.” It stated: “We are not persuaded that personal emails are rendered public records” under FOIA merely by use of a public body’s computer system to send or receive those emails or by the automatic back-up system that causes the public body to retain those emails.” The court also rejected the argument that the so-called “privacy exemption” would be rendered a nullity by its decision. Quoting from a prior Michigan Supreme Court decision, the court found that the question regarding whether the emails are public records is a separate inquiry from that of whether a documents falls within the exemption.
The appellate court then rejected HPS’ argument that its acceptable use policy notified users that personal emails were subject to FOIA. The court said “[a]lthough the use policy certainly gives notice to the users that school officials may look at their email, and that the documents could be released pursuant to a subpoena, it in no way indicates that users’ emails may be viewed by any member of the public who simply asks for them.” It concluded, therefore, that “the public employees’ agreement to this acceptable use policy did not render their personal emails subject to FOIA.” Instead, the appellate court found “the fact that the communication is sent in violation of the use policy militates in favor of the conclusion that the email is not a public record because it falls expressly outside the performance of an official function, i.e. the furtherance of the instructional goals of the district.”
Howell Educ. Ass’n v. Howell Bd. of Educ.
[Editor’s Note: Courts have made varying decisions on the applicability of state statutes addressing documents or communications (e.g., open meetings, freedom of information, and student records) to email communications. Decisions are based on the language and purpose of the statute at issue. On December 31, 2009, the Massachusetts Supreme Judicial Court ruled that e-mail communications between school committee members prior to open session regarding the school district superintendent’s performance violated the state’s open meeting law. A summary of that decision is at the link below. Please see the second link below for further NSBA legal resources regarding technology.]
NSBA School Law pages on e-mail communications between school committee members
NSBA legal resources on technology