13th Circuit Court Hears TCAPS Transparency Case

13th Circuit Court Judge Kevin Elsenheimer heard arguments on Monday, June 22 regarding the production of documents by the TCAPS school board. Specifically, the Record Eagle says that the school must produce a copy of a complaint filed by a mystery person against Ann Cardon. TCAPS says that the document is protected from FOIA. TCAPS’ reasoning is that the document was the subject of discussion in a closed session.

Here’s how the hearing went. (I’m paraphrasing, if you need to be told the obvious):

Judge: There’s the Shelby case. It’s still good law. (Judge repeats this phrase like 10 more times.)

Record Eagle: But the Shelby case is about a transcript. This case is about a complaint.

Judge: There’s precedent for having the records be exempt. Did I say Shelby?

Record Eagle: Then how is there any transparency about government matters? When a complaint is filed against a government employee, how does the public ever know if it is fairly vetted?

In the end, the judge said he basically has his mind made up, but that he wants to review the documents in question himself, in camera. That means he looks at them before he decides how to rule on the case.

If the judge isn’t going to rule in the Record Eagle’s favor, there is no reason to conduct an in camera review. On the other hand, I didn’t get the impression that the hearing went very well for the Record Eagle. Their attorney barely got two sentences in before Elsenheimer started playing the Shelby broken record.

The Shelby case that they’re talking about is Titus vs. Shelby Charter Township. It’s a Michigan Court of Appeals case from 1997. However, I know it’s still good law because Elsenheimer kept repeating that it was. The scenario, in that case, is that Shelby Charter Township wanted to fire a police officer. They went into closed session to take testimony from witnesses and discuss what to do about the termination. The plaintiffs in the case wanted a copy of the transcripts of the proceeding. The court ruled that the transcripts were part of the minutes of the meeting and therefore not subject to FOIA.

Michigan Law 15.268 says that a public body may go into closed session “To consider the dismissal…or to hear complaints or charges brought against…a public officer [or] employee if the named person requests a closed hearing.”

So they can go into closed session. Does that make the complaint itself exempt from FOIA?

The law says only that they can hear the charges in closed session. The law does not say that the nature of the charges and the written allegation itself are exempt from disclosure.

Michigan Supreme Court Decision favors RECORD EAGLE

But, you know what’s also good law? Bradley v. Saranac Community Schools. It’s also from 1997, but it’s from the Michigan Supreme Court. The case is about a parent who wanted their child’s teacher’s personnel records. They wanted disciplinary history, performance records, and complaints filed against her.

A public body may refuse to disclose information that is embarrassing or personal, or otherwise an invasion of privacy.

The court conducted an in camera review of the documents. It found that none of the information in the files was really personal – you know things like medical records or private information. The information was strictly related to job performance even if it was not particularly pleasant or positive. The court said that the disclosure was not exempt from FOIA because of the personal/intimate records exemption, because there records were neither personal nor intimate.

The Bradley court ruled in favor of disclosure.

The Bradley case ends by saying that people have the right to full information about their government affairs.

This Attorney General opinion agrees. This one is off topic.

what does the bradley case mean for tcaps?

No matter how many times you say the word Shelby, it’s different. That was about a transcript. This is about a complaint – one that existed long before the closed meeting. The Bradley case says that a complaint is subject to disclosure just like the complaints in question in the TCAPS case.

Can TCAPS make an otherwise FOIAable document exempt by discussing it in a closed session? The answer is noOnly TCAPS would come up with this argument. No really, only TCAPS came up with this argument. It’s a case of first impression. If I’m wrong, there’s a comment section below, I’m waiting.

There is no authority to move a document from subject to FOIA to exempt from FOIA by talking about it in a closed meeting and calling it an exhibit. The document is subject to FOIA whether or not the closed session meeting ever happened.

Now whether Judge Elsenheimer rules that way, we’ll see. Like I said, there would have been no reason for him to order the in camera review if he didn’t believe that the law required disclosure. Is Elsenheimer’s request to see the records in camera disingenuous? Will he then use the Supreme Court test to decide the allegations are too personal? He could just “read” the documents and then just rule they’re “personal” and say, sorry. Then he can just say public, you don’t get to check my work, and good luck appealing it, because how do you prove I did something wrong with a document that you don’t get to see. However, to rule in the Record Eagle’s favor would be swimming upstream against the political tide. (Despite what they would have you believe, they know which way the tide is flowing.) We’ll all find out together.

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5 thoughts on “13th Circuit Court Hears TCAPS Transparency Case”

  1. So this complaint existed prior to the closed session and would have been subject to FOIA at that time, until it was subsequently moved into closed session, whereupon the TCAPS claimed it was no longer subject to FOIA?

    Do we know how much time elapsed between the time of the complaint and the subsequent closed session?

    Ignoring potential outcomes of this case for a moment, would it be an effective strategy to file a subscription FOIA for any and all future TCAPS complaints? The idea being, summary burial and obfuscation would be much more difficult if there was a standing FOIA in place.

    Could TCAPS assert non-response to such a FOIA by claiming that the material became part of a closed session prior to the expiration of the FOIA response time?

    1. As pointed out by the RE attorney the Sue Kelly document was disclosed in enough time for Ann Cardon and her attorney to read it prior to the request for closed session before the meeting. The point that Robin Luce-Herrmann was making is that if the document is confidential because it was a part of the minutes, the first time anyone should have seen the document was in that meeting. That wasn’t the case here. So Sue Kelly waived the document in Ann Cardon’s face prior to the meeting, causing Ann Cardon to request a closed session (that Jamie McCall was ballsy enough in her interview to say she would never do) and then claimed a warped view of OMA. So if Ann Cardon wouldn’t have asked for closed session, this letter would have been read in Open Session, correct? How is it all of a sudden protected in closed session of it was getting read either way?

        1. I would like to retain you as my comment proofreader. Please contact my secretary asap (though it would be better if you do not disclose the nature of the matter).

          Thanks and regards, PB.E.

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