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Michigan Court of Appeals Rules That Document Used in Closed Session Is Subject to Disclosure Under FOIA

May 20, 2021

On May 13, the Michigan Court of Appeals issued a decision addressing the Open Meetings Act (“OMA”) and Freedom of Information Act (“FOIA”). The case is scheduled for publication and is titled: Traverse City Record-Eagle (“plaintiff”) v. Traverse City Area Public Schools Board of Education (“TCAPS”) and M. Sue Kelly (“Kelly”) (Kelly and TCAPS are collectively referred to as “defendants”). At the time, Kelly was the president of TCAPS.

Defendants held a closed session under the OMA to discuss complaints against the then-school superintendent. At the closed session, a document created by Board President Kelly contained the complaints about the superintendent. It is not reported as to whether Kelly distributed the document or read it aloud at the closed session.  In any event, it appears that the use of the document in the closed session went beyond simply being a Board member’s personal notes, which are typically not subject to disclosure under FOIA. No decisions regarding the superintendent’s employment were made at this closed session. However, the superintendent and Board soon after mutually agreed that the superintendent would resign. Later, the Board held an open meeting and named an interim superintendent. The interim superintendent’s contract was formally ratified at a subsequent open meeting.

Afterward, plaintiff filed a FOIA request to obtain the document with the complaints, but defendants refused. Defendants argued that the document did not have to be disclosed because it should be considered part of the closed session’s meeting minutes. Minutes of closed sessions do not have to be disclosed as part of a FOIA request. The Court disagreed that this document was part of the minutes. Just because the OMA does not provide a comprehensive list of what can be included as part of the meeting minutes does not mean that every document referred to in closed session is part of the minutes. Even though minutes of a closed session meeting cannot be disclosed, documents used in a closed session may have to be disclosed. The Court clarified that specific discussions and deliberations in a closed session are exempt from FOIA requests, but documents such as performance evaluations, personnel files, and settlement agreements are subject to be disclosed as part of a FOIA request unless a specific exemption exists.

Secondly, plaintiff sued under the OMA alleging that defendants made the decision to name the interim superintendent outside of an open meeting. Under the OMA, this decision must be made at an open meeting. The Court disagreed with plaintiff’s allegation. During an open meeting of TCAPS, a motion was put forth to name the interim superintendent. All board members approved. While Kelly, had a discussion with the interim superintendent to inquire if he would be potentially interested in the position, no formal agreement was made. Following this discussion and at the time of the open meeting, there had been no acceptance of any position or discussion of contract terms. Since plaintiff failed to provide evidence of an OMA violation, its claim was dismissed.

If you have any questions about this decision or any other matter concerning the OMA/FOIA, please contact Jay Fleming or any other member of Clark Hill’s Education Group.

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