Recently, the Michigan Court of Appeals issued an unpublished decision in Jones Day v Dep’t of Environment, Great Lakes, and Energy. The case revolved around a Freedom of Information Act request that EGLE had denied based on FOIA’s exemption for requests for information pertaining “to a civil action in which the requesting party and the public body are parties.” The requestor was Jones Day, a law firm representing chemical companies involved in legal actions with the State of Michigan about the ongoing polyfluoroalkyl substance (PFAS) issue in Michigan.
EGLE’s logic could be easily understood. FOIA is a transparency law open to citizens and entities – but, parties who are involved in a lawsuit with a public body already have access to relevant information through the discovery process. So, public bodies can force a person to go through the discovery process to obtain that information. Further, most parties are represented by legal counsel, so the exemption can also be used when legal counsel makes a FOIA request on behalf of the client that is a party to the lawsuit, right?
No, according to the Michigan Court of Appeals. Previous decisions in Michigan have made it clear that, for example, the best friend of a person involved in litigation with a public body can make a FOIA request, and the public body cannot use the exemption. Applying that precedent, the Court of Appeals in this matter extended the same reasoning to legal counsel for a party to litigation.
As a practical matter, public bodies should essentially ignore this particular FOIA exemption. Although this decision may be further appealed to the Michigan Supreme Court, it is clear that, for now, the exemption is so narrow that it effectively does not exist. Public bodies are strongly advised to contact counsel before using this exemption.