Court of Appeals Clarifies Privacy Protections for Closed Session Documents

In a recent published decision, the Michigan Court of Appeals ruled that documents discussed by a public body during a closed session meeting may be subject to disclosure under the Freedom of Information Act (FOIA). Traverse City Record Eagle v Traverse City Area Pub Sch Bd of Educ, COA Docket No. 354586 (May 13, 2021).

The Traverse City Area Public Schools (TCAPS) Board of Education convened a public meeting to con­sider complaints against then-Superintendent Ann Cardon. Before the meeting, a board member created a document that memorialized the complaints (Com­plaint Document). The board met in closed session at Cardon’s request. During the closed session, the board discussed the Complaint Document and included it with its closed session minutes. Upon returning to open ses­sion, the board took no action, but Cardon soon resigned.

The board appointed an interim superintendent and formally ratified the interim superintendent’s contract at subsequent open meetings.

The Traverse City Record Eagle filed a FOIA request for the Complaint Document. TCAPS denied the re­quest, stating that it was exempt from disclosure as part of the closed session minutes. The Record Eagle sued, alleging TCAPS violated FOIA by failing to disclose the Complaint Document and violated the Open Meetings Act (OMA) when it hired the interim superintendent.

Complaint Document

FOIA generally requires public bodies to disclose public records upon request, unless the requested doc­umentation falls within one of the statute’s exemptions. One of those exemptions is “[r]ecords or information specifically described and exempted from disclosure by statute.”

OMA Section 7 requires public bodies to take and retain a separate set of minutes during closed session meetings. By statute, the minutes “are not available to the public,” and, therefore, are exempt from disclosure under FOIA. Relying on this exemption, TCAPS argued that the Complaint Document was a part of the closed session minutes and, as a result, not subject to disclo­sure. The Record Eagle conceded that closed session minutes are not subject to disclosure, but argued that documents discussed during the closed session are subject to disclosure.

The Court of Appeals agreed with the Record Eagle, reasoning that, although FOIA exempts the minutes and transcripts of a closed session from disclosure, other documents relied on for or relevant to the closed ses­sion are not necessarily exempt. The court ruled that documents “brought into the closed session are disclos­able” if no other exemption exists. In other words, a dis­closable document cannot be “transformed” into a FOIA-exempt document just by discussing it in closed session. Accordingly, the Complaint Document, al-though discussed during the closed session, was not considered part of the closed session minutes and was subject to disclosure under FOIA.

Hiring Practices

OMA Section 3 requires that all “decisions of a public body must be made at a meeting open to the pub­lic.” The statute also generally requires that all “delib­erations of a public body constituting a quorum of its members” must take place at an open meeting. The Record Eagle alleged that TCAPS violated the OMA, even though the board appointed the interim superinten­dent at an open public meeting, because there were no open session deliberations at that or any other meeting.

The Court of Appeals rejected the Record Eagle’s OMA argument. The court found that the OMA does not mandate a specific type, quality, or length of delibera­tions that must occur before a public body makes a de­cision at an open meeting. Moreover, although the interim superintendent had a meeting with one board member to discuss his interest in the position, no deci­sion was made, no contractual terms were discussed, and a board quorum was not present. Ac­cordingly, the court held that TCAPS satisfied OMA requirements when it approved the interim superin­tendent and the related contract at open board meetings.

Conclusion

This decision provides clarifying guidance about disclosing closed session documents under FOIA, as well as the scope of required deliberations under OMA. However, any FOIA request for information considered in closed session must be addressed on a case-by-case basis. If you receive a FOIA request for closed session information, contact a Thrun attorney to discuss your specific situation.