Electronic Discovery Law

Howell Educ. Assoc. MEA/NEA v. Howell Board of Educ., 2010 WL 290515 (Mich. Ct. App. Jan. 26, 2010)

In this “reverse” Freedom of Information Act (FOIA) case, the trial court held that personal emails generated by and stored on a public school’s email system were public records subject to FOIA.  Upon plaintiffs’ appeal, the appellate court reversed the trial court and held that such emails were not public records and thus not subject to FOIA.  Moreover, the appellate court concluded that violation of an acceptable use policy barring personal use of an email system – “at least one that does not expressly provide that emails are subject to FOIA” – does not render personal emails subject to FOIA.

Intervenor/Counter-plaintiff Chetly Zarko submitted a series of FOIA requests seeking production of emails sent to and from three specific teachers beginning in January 2007 and emails between those teachers and an employee of the Michigan Education Association.  The teachers were all members of and officials for Howell Education Association MEA/NEA (“HEA”).  HEA objected to the release of “union communications” between the teachers arguing the emails were not “public records” as defined under FOIA.  To settle the issue, plaintiffs sought declaratory judgment that the emails were not subject to FOIA, among other issues.  The trial court held the emails were subject to FOIA. Plaintiffs appealed.

Michigan FOIA requires the disclosure of public records upon proper request.  A “public record” is defined as “a writing prepared, owned, used, in the possession of, or retained by a public body in the performance of an official function, from the time it is created.”  [Emphasis added.]  Defendants argued that the retention of electronic data was “an official function where it is required for the operation of an educational institution” and cited Michigan precedent in which the court held that the magnetic tape which was the school’s record of student names, addresses, etc. was retained in performance of an official function because the university could not have functioned without such a list of its students.

Rejecting the comparison, the court noted that defendants in the present case could “function without the personal emails” and that “given their very definition they have nothing to do with the operation of schools.”  The court further rejected defendants’ argument that retention was sufficient to subject the emails to FOIA where the school district did not assert that the back-up system was purposely designed to retain and store personal emails or that such emails had an official function:

It appears that the system is intended to retain and store emails relating to official function, but that it is simply easier technologically to capture all the emails on the system rather than have some mechanism to distinguish them.  We do not think that because the technological net used to capture public record emails also automatically captures other emails we must conclude that the other emails are public records.  To rule as defendants request would essentially render all personal emails sent by governmental employees while at work subject to public release upon request.  We conclude that this was not the intent of the Legislature when it passed FOIA.

The court went on to cite a federal case in which the court determined that the electronic calendar for the chairman of the SEC was not an “agency record” despite containing both business and personal information and being stored on the agency’s computer system.  In that case, SEC employees were permitted limited personal use of their office equipment.  The court in the present case found the personal emails at issue analogous to the chairman’s electronic calendar.

Recognizing the lack of permission for personal use in the present case as evidenced by defendants’ Acceptable Use Policy, the court nonetheless rejected defendants’ argument that the policy put users on notice that their personal emails were subject to FOIA:

Although 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.

The court further rejected the argument that violation of the policy rendered the otherwise personal emails public records.

The court next decided that the emails at issue, i.e., emails involving “internal union communications” were personal emails and thus not subject to disclosure.