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Michigan Court of Appeals Rules in Favor of Newspaper’s Right to Disclosure of a Document Under Freedom of Information Act (FOIA)

In a precedent-setting case, a three-judge panel sided with a newspaper and journalists in their bid for a public body to disclose documents in a closed-session meeting.

In a precedent-setting case, a three-judge panel sided with a newspaper and journalists in their bid for a public body to disclose documents in a closed-session meeting. The Traverse City Area Public Schools Board of Education (TCAPS) couldn’t depend on a potential loophole in the OMA to shield information from FOIA requests. This case, at its crux, involves the intersection between the FOIA and OMA. The ruling is a victory for journalists and pushes increased accountability in Michigan’s transparency laws.

In the case, Traverse City Record-Eagle v. Traverse City Area Public Schools Board of Education and M. Sue Kelly, the three-judge panel affirmed the 13th Circuit Court Judge Kevin Elsenheimer’s order to the defendants, TCAPS and then-board president, M. Sue Kelly, to release documents related to a closed-session involving complaints against superintendent Ann Cardon. Cardon was hired by TCAPS as the superintendent. Soon after her hiring, complaints ensued. TCAPS requested a meeting to discuss complaints, and Cardon requested a closed session.

The session focused on Cardon’s employment status. A document known as the “Kelly document,” which contained the list of complaints against Cardon, was provided by Kelly at the closed session.

Cardon and TCAPS mutually agreed to her resignation. In an open session, a new interim superintendent, Jim Pavelka, was selected. The newspaper/plaintiff, the Traverse City Record-Eagle, requested the release of the Kelly document via a FOIA request. TCAPS refused to disclose the documentation, arguing that it was protected. The trial court and a three-judge panel disagreed.

TCAPS first argued the Kelly document qualifies as an exemption under OMA, where minutes of a closed session are not available via an FOIA request and only a court order could mandate disclosure. TCAPS cited the precedent established in Titus vs. Shelby, in which the court held the transcript of the closed session is part of the meeting minutes and could qualify as an exemption. This argument didn’t apply to the Kelly document. Although OMA doesn’t give an exclusive list on what may be contained in meeting minutes, it doesn’t mean every document referred to in the session can be exempt from disclosure. This would lead to a slippery slope, in that “it would seemingly allow any public body to attach anything to the official record in order to exempt it from disclosure.” The court did not consider the Kelly document as part of the meeting minutes.

TCAPS also argued that the Kelly document was a part of closed session deliberations and therefore exempt from disclosure under the OMA. This argument failed. The Titus court “focused on the fact that the transcripts were part of the minutes because of the plain and ordinary meaning of minutes and not because transcripts involved deliberations of the public body with the closed session.” In the current case, TCAPS didn’t show how the Kelly document falls within the plain and ordinary meaning of minutes.

The court used prior cases like Bradley v. Saranac Community School Board of Education and Detroit Free Press, Inc. v. Detroit to bolster its position. At issue in these cases was whether personnel files and settlement agreements were disclosable under the FOIA requests. The court found that these documents were not protected under the OMA and made an important clarification. Although minutes of a closed session meeting cannot be disclosed, the documents used in said session may be subject to a FOIA request. The specific discussions and deliberations surrounding those documents, however, are not subject to a FOIA disclosure request. But performance evaluations in Bradley, settlement agreements in Detroit Free Press and complaints regarding Cardon are subject to be disclosed as a part of a FOIA request unless a specific exemption exists. Ultimately, discussions surrounding the documents are not discoverable, but the public cannot be deprived of the documentation at the root of the case. This allows others to make their own interpretation of what is presented and requires a heightened level of transparency.

The newspaper also sued TCAPS for its decision to name Pavelka as interim superintendent. The newspaper claimed the decision was made outside of an open meeting, a violation of the OMA. The Court did not agree. An open meeting was held, and a motion was put forth to name the interim superintendent. All board members agreed. Although Kelly had an outside discussion and approached Pavelka regarding his interest in the position, there was no mention of contract terms or acceptance of the position. The newspaper failed to provide any evidence of a OMA violation. Although the court emphasized that the newspaper might be unhappy with the length of the discussions by TCAPS, “plaintiff points to no authority to show this was improper.”

This case provides important clarity for public bodies regarding their rights and responsibilities under FOIA and OMA. If you have any questions, please contact Ed Castellani or your Fraser Trebilcock attorney.

When it matters in Michigan, Fraser Trebilcock is the trusted advisor for businesses and individuals facing legal and regulatory challenges, and our capabilities extend to wherever clients require counsel.

Fraser Trebilcock Business Tax Attorney Edward J. CastellaniEdward J. Castellani is an attorney and CPA who represents clients involved with alcohol beverages as a manufacturer, wholesaler, or retailer. He leads the firm’s Business & Tax practice group, and may be contacted at or 517-377-0845.