21 May 2021

Michigan Court of Appeals Closes Potential FOIA Meeting Minutes Loophole

Last week, the Michigan Court of Appeals published its decision in Traverse City Record-Eagle v Traverse City Area Public Schools Board of Education, a case involving a significant loophole in the way the Freedom of Information Act (FOIA) and the Open Meetings Act (OMA) interact.

Shortly after the hiring of Traverse City Area Public Schools (TCAPS) Superintendent Ann Cardon (Cardon), a closed session under the OMA was conducted to discuss complaints about her. A document known as the “Kelly document” was provided by then-Board of Education President Sue Kelly at the closed session and contained the list of complaints against Cardon.  Plaintiff, a local media outlet, filed a FOIA request for the Kelly document, which TCAPS denied, claiming it was FOIA exempt.  Plaintiff sued, seeking access to the document, and also alleged OMA violations.  Both parties moved for partial summary disposition.  The trial court ruled partially in favor of Plaintiff, concluding that the Kelly document was in fact subject to disclosure, but ruled in Defendants’ favor on the OMA issue.

Defendants argued the Kelly document was shielded from disclosure as part of the closed-session meeting minutes.  MCL 15.267(2) requires closed session minutes to be kept confidential, unless disclosure is required by court order.  Defendants argued that the Kelly document, which was furnished during the closed meeting, should be considered as part of the closed session meeting minutes.  The court disagreed, distinguishing this case from one in which, for example, actual transcripts of a closed session were considered part of the FOIA exemption.  The definition of “minutes,” the court stated, was plain and simple: it is the official record of what goes on at a meeting.  The court further went on to state that while the OMA does not provide an exhaustive or comprehensive list of what can be considered part of a meeting’s minutes, that fact does not create the conclusion that every document discussed in a meeting can be classified as such.

The court also found that the nature and character of the Kelly document—a list of complaints—should be subject to disclosure, as generally speaking, barring a specific exemption, personnel records of a disciplinary or corrective nature, performance evaluations, and complaints filed, are subject to FOIA, regardless of whether the meeting was open or closed. Unpersuaded by the defendants, the court saw no reason to find the Kelly document FOIA-exempt.

Plaintiff also alleged TCAPS violated the OMA by making a decision to name the interim superintendent outside of an open meeting. The OMA requires such decisions must take place in an open meeting, however the court found that the Board put forth the name during an open meeting, where all TCAPS members approved.  The key was that no deliberations or decisions were made in the closed meeting, which is where a violation could exist.  The court found plaintiff failed to produce any evidence to the contrary or that otherwise suggested an OMA violation.

The case closes a potentially significant loophole, which enabled public bodies to shield specific documents that would otherwise be subject to FOIA.  The opinion can be accessed here.