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Education Law
Alert February 5, 2010
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Education Law
Practice Group Leader
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Education Law
Practice Group
Members
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Jeremy S. Motz
Nancy
L. Mullett
Barbara A. Ruga
Kevin T. Sutton
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Education Law
Alert
Court of
Appeals Rules that School Employees' Personal and Union-Related
Emails Are Not Public Records Under Freedom of Information Act
by Kristin Bellar
In a published opinion issued on January 26, 2010, the Court of
Appeals held that personal or union-related employee email messages
"retained" on a public body's server or backup system are
not necessarily public records as defined by the Freedom of
Information Act ("FOIA").
In Howell Education Association,
et al, v Howell Board of Education, et al, Docket No.
288977, Chetly Zarko,
a "right-to-work" activist investigating how unions use
school districts' computer systems, submitted a FOIA request to
Howell Public Schools ("HPS"),
seeking email messages sent between certain employees who were also
union officials for the Howell Education Association ("HEA"). HEA and
the employees ("Plaintiffs"), with the cooperation of HPS and the Howell Board of Education
("Defendants"), requested a declaratory judgment that the
personal emails were not public records and, even if they were,
certain exemptions would apply to permit the public body (the school
district) to exempt them from disclosure under FOIA.
The trial court held that any emails generated through the school's
electronic mail system that are retained or stored by the district
are public records subject to FOIA. Plaintiffs (the union)
appealed this decision.
The Michigan Court of Appeals reversed the trial court's
decision. The Court of Appeals held that emails that are
inherently personal and unrelated to the functioning of the public
body and emails between union officials regarding union business are
not "public records," because they are not related to or
necessary for the functioning of the public body. Moreover, the
existence of an "acceptable use policy" prohibiting use of
the public body's email server for personal use did not automatically
transform personal and union-related emails into "public
records." The Court of Appeals did note that a personal or
union email message could be converted into a "public
record" if, for example, an employee was disciplined for
violation of an acceptable use policy. Then, the use of those
emails would be related to one of the school's official functions:
the discipline of the employee. Under those circumstances, the
emails would become public records.
According to a January 28, 2010 National Right to Work Legal Defense
Foundation, Inc. news release, Mr. Zarko
intends to appeal this matter to the Michigan Supreme Court, with
legal assistance provided by the Foundation. In the meantime,
since the decision has been designated for publication, it represents
binding legal authority.
If you have
any questions regarding this alert, please contact the author or your
Clark Hill Education attorney.
All articles
are also posted on the Clark Hill Website for future reference and
can be accessed by visiting www.clarkhill.com.
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For further
information about the content of this Education Law Update, please
contact Robert A. Lusk at 248-988-5847. To
find out more about Clark Hill and our Education Law team,
visit clarkhill.com
or call 800.949.3124
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