FOIA
Does Not Apply to an Elected Official's Personal Notes
By: Kenneth P. Lane
In Hopkins v
Township of Duncan (2011 Mich App=
LEXIS
1806, Case No. 300170), the Michigan Court of Appeals held that t=
he
handwritten notes of a township board trustee, taken during a pub=
lic
meeting for personal use and not used in the creation of the meet=
ing
minutes, do not cons=
titute
public records subject to disclosure under the Michigan Freedom of
Information Act ("FOIA"). <=
o:p>
A township resident submitted a FOIA
request for copies of notes taken by elected officials during
meetings of the township board. A township board trustee, who
voluntarily took handwritten notes at every meeting, testified at
trial that his notes were strictly for his personal use, written =
and
kept in his personal journal, never circulated or shared with oth=
er
board members, never referred to or used for official minutes, and
never placed in any township file. The township argued that such
notes were private writings not subject to the FOIA
because they were not taken in furtherance of an official functio=
n.
The court of appeals agreed noting that the FOIA defines a "public record" as
"a writing prepared, owned, used, in the possession of, or
retained by a public body in the performance of an official funct=
ion,
from the time it is created." The court recognized that the
notes were taken solely to assist the trustee with personal memory
retention and were not used for substantive decision making by the
board or for record keeping by the township. The court of appeals
explained that it was unwilling to convert the private notes to
public records simply because they were taken by the trustee at a
public meeting. The court determined that handwritten notes not
considered by other members of the board and retained and dispose=
d of
at the discretion of the writer cannot be anything other than
personal in nature.
If you have any questions regarding any of the above
information please contact your Clark Hill municipal or education
attorney.
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