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FOIA and a Superintendent's Telephone Records

February 19, 2014

In an unpublished decision, the Michigan Court of Appeals denied a request under the Michigan Freedom of Information Act (FOIA) for a public school superintendent's cellular phone records. Caffrey v Gladwin Community Schools , Mich App No. 314732 (December 26, 2103) (unpublished). The public school district provided a cellular telephone to its superintendent for school business with the understanding that the superintendent could use the school district's cellular phone for personal use, subject to review by the board of education (board). The plaintiff submitted a FOIA request for the superintendent's cellular phone records.

The school district responded that it did not maintain or possess records regarding the superintendent's use of his cellular phone. The superintendent eventually provided several months' worth of phone records that came into his possession, with personal telephone numbers redacted.

Dissatisfied with this response, the plaintiff filed a FOIA action against the school district in circuit court. After the circuit court ruled in favor of the school district, the plaintiff appealed to the Michigan Court of Appeals.

The Court of Appeals concluded that FOIA did not require production of non-existent records. If the school district did not maintain any telephone records relating to the superintendent's cellular phone, then there was no FOIA violation when the school district failed to produce them. The plaintiff argued that the records retention and disposal schedule for Michigan's public schools required phone records be kept for seven years. However, the Court reasoned that the duty to retain records does not establish a duty to acquire records and does not transform a non-existent record into ones actually prepared, owned, and used by a public body.

Also, the Court of Appeals rejected the plaintiff's challenge to the redaction of personal telephone numbers from the phone records that were produced. Relying on Michigan Federation of Teachers v. University of Michigan , 481 Mich 657 (2008), in which the Michigan Supreme Court held that information of a personal nature may be treated as confidential, the Michigan Court of Appeals treated personal telephone numbers as personal, confidential information. The fact that the board could review the superintendent's personal use of the cellular phone did not transform personal telephone numbers into public information.

Caffrey is unpublished which means that it does not serve as a binding legal precedent. Nevertheless, this case is evidence that FOIA requests for personal information, even derived from telecommunications equipment that is financed by public tax dollars, may enjoy some protection from disclosure. If you have any questions regarding the Caffrey case, or the Michigan Freedom of Information Act, contact your Clark Hill school law attorney.

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