Outside Legal Counsel PLC

Filing FOIA Requests for Professors' Emails

For Immediate Release | Mar 30, 2011

The political fervor in Wisconsin reached a new peak when a staffer from the Republican Party of Wisconsin filed an "open records request" or also known as a Freedom of Information Act (FOIA) request with the University of Wisconsin-Madison seeking copies of a professor's emails related to the on-going political debate on public unions and collective bargaining.

The request has caused quite the reaction from academia as being an "outrage."

Now the idea to use this legal process has spread to Michigan.

On Tuesday, the web-news media revealed that the Midland-based Mackinac Center For Public Policy has filed several requests under Michigan's Freedom of Information Act on the University of Michigan (Labor Studies Center ), Wayne State University (Douglas A. Fraser Center for Workplace Issues), and Michigan State University (which has a School of Human Resources & Labor Relations) seeking all electronic correspondence with the terms "Scott Walker," "Wisconsin," "Madison," "Maddow," and "[a]ny other emails dealing with the collective bargaining situation in Wisconsin."

Michigan's FOIA law requires disclosure of the public records of a public body to persons who request to inspect, copy, or receive copies of those requested public records. The law explicitly states that all persons (with the exception of prisoners) are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and public employees. 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."

Emails have longed been presumed to be a public record, but added to this current situation is a recent decision by the Michigan Court of Appeals. The case, captioned as Howell Education Association v Howell Board of Education, explained that for e-mails to be considered public records it must have been stored or retained "in the performance of an official function."

"Unofficial private writings belonging solely to an individual should not be subject to public disclosure merely because that individual is a state employee," states the opinion.

The Howell Court ultimately concluded that the trial court erred in its conclusion that all emails captured in a government e-mail computer storage system, regardless of their purpose, are rendered public records subject to FOIA.

"What is now happening here in Michigan is the perfect storm of competing ideological and legal principles," states Philip L. Ellison, a FOIA attorney from the law firm of Outside Legal Counsel PLC. "American society values an open and transparent government, yet using FOIA for a purpose other than transparency leaves many feeling uneasy about the invasion of digital inboxes." Ellison further notes that "adding to it our time-honored notion that universities are traditional bastions of free thought and free exchange of ideas, and we have a perfect legal and ethical storm."

It is unclear what the legal response of the universities will be. The Michigan FOIA law permits the universities five business days to respond with the opportunity to receive a single 10 day extension.

Public records are considered presumptively available for inspect and copying but attorneys for the universities will likely use the Howell decision as a basis to argue that a professor's emails, especially those that are outside the traditional tasks of an university professor, are exempt from disclosure to requestors.

"These recent requests in Wisconsin and Michigan messily shove transparency, privacy, public debate, and academic freedom into the ideological combat arena," concludes Ellison. "Which principles come out the winner at this point is really unclear."