TRAVERSE CITY – A lawsuit that will undermine government transparency across the state will be heard in the Michigan Court of Appeals Tuesday.
Three judges will hear oral arguments in a lawsuit the Record-Eagle filed in early 2020 against public schools in the Traverse City area and trustee of the TCAPS Board of Education, Sue Kelly. The Record Eagle claims that TCAPS and Kelly, who was chairman at the time, wrongly used an exemption for meeting minutes to withhold a letter of complaint against former Superintendent Ann Cardon.
The Appellate Body will probably not make a decision for a few weeks.
The civil lawsuit filed in January 2020 alleges “willful and willful” violations of the Open Meetings and Freedom of Information Acts to cover up the details of Cardon’s fall. The counts are largely from a cloud of dust in October 2019 and several subsequent board rulings that illegally made Record-Eagle’s claims outside of open meetings. It also affects FOIA requests for information about Cardon’s sudden departure, who had been on duty for less than three months.
Circuit Court Judge Kevin Elsenheimer issued an order in July 2020 to publish a document of complaints against Cardon. However, TCAPS appealed Elsenheimer’s decision to the Supreme Court.
TCAPS attorney Kailen Piper declined to comment before the hearing.
Piper argued in her letter that an earlier decision by the Michigan Court of Appeal allowed TCAPS to withhold the records by making them part of the minutes of a closed session, which would exclude them from disclosure to the public. Elsenheimer decided against this argument.
Piper wrote that the 13th Circuit ruling “placed undue weight on an outdated non-binding general opinion of the attorney that does not address the actual problem”. Piper asked the court of appeal to “give guidelines” to Elsenheimer and the lower courts.
In a letter from Record-Eagle, the newspaper’s attorney, Robin Luce-Herrmann, said Elsenheimer was “indisputably correct” that the OMA was not allowing a public governing body to approve documents subject to FOIA inquiries by adding to minutes of closed meetings protect. The Michigan Supreme Court previously ruled that evaluations, personnel files and complaints regarding public employees like Cardon must be prepared at the request of the FOIA.
Luce-Herrmann wrote the TCAPS argument “flies against established law”.
A decision in favor of TCAPS or Record-Eagle could set precedents for future parties to cite in a similar situation. The appeal court’s decision could have far-reaching implications for both the public’s ability to access such material and a management body’s ability to hide certain acts behind closed doors.
“It is very important to clarify what we consider the law to be,” said Luce-Herrmann. “A public body cannot simply bring a document into a closed session to prevent it from being made available to the public.”
The remainder of the proceedings against TCAPS and Kelly are on hold pending a decision by the appeals court.
The hearing is virtual but will not be streamed live online. The video of the hearing will be released the next day.
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