The Mackinac Center filed an appeal on April 4 with the Michigan Supreme Court in a case that has major implications for how the state’s Freedom of Information Act applies to local governments. If the court does not take the case, it will be far more difficult for citizens to hold their local governments accountable.
The case arose when our client, Carol Beth Litkouhi, noticed that the Rochester Community Schools District had offered a high school course titled “A History of Ethnic and Gender Studies.” Carol Beth was curious about the subject matter being taught and attempted to gain access to course material. She had limited success working directly with teachers and curriculum specialists, and the district told her to file a FOIA request.
Carol Beth did so, but the district provided very little material in response. The course had been taught for over six months, but she only received a syllabus and some materials from the course’s first two weeks. She appealed that decision, but the district stood firm. That’s when she came to the Mackinac Center, and we sued on her behalf.
In the lower courts, school officials claimed that because teachers fall outside FOIA’s definition of “public body,” the district has no obligation to obtain records that were retained by teachers, even if those records were related to a teacher’s official duties. Many teachers’ official records have been disclosed in the past. Even so, both the trial court and the Michigan Court of Appeals agreed with the district.
If these decisions stand, the implication would be enormous: Only the records retained by a local public body, rather than by its employees, would be subject to FOIA. This means that records of municipal employees, such as teachers, firefighters, and police officers would only be subject to disclosure if they are also possessed by the public body itself.
Similarly, records held only by the mayor, township manager, or superintendent would also likely be exempt from FOIA under this interpretation. On the other hand, records retained by a city council, township board, or school district would still be accessible.
The Michigan Supreme Court should grant the Mackinac Center’s request. Failing that, the Legislature must act swiftly to ensure that Michigan’s poor record on transparency does not get even worse.
