Appeals court sides with Record-Eagle in transparency case; binding legal precedent set | News
TRAVERSE CITY – A Michigan appeals court ruling released Thursday closes a loophole where Traverse City school officials argued they should exist in Michigan’s transparency laws.
A three-judge panel unanimously upheld an earlier ruling by 13th District Court Judge Kevin Elsenheimer saying that the Traverse City Area public schools must publish a document containing complaints against former Superintendent Ann Cardon. The decision states that the district was not properly maneuvered to protect the document from disclosure by attaching it to the closed session minutes and claiming it was protected by the Open Sessions Act.
The Traverse City Record-Eagle requested publication of the letter and filed a lawsuit in January 2020 against TCAPS and then President of the Education Committee, Sue Kelly, who drafted the complaint document and distributed it to the Trustees on October 7, 2019 session.
The Record-Eagle requested publication of the letter for the first time days after the meeting, at the request of the Freedom of Information Act, as county officials were busy getting a contract for Cardon to quit their job with a payout of $ 180,000 . TCAPS officials denied the request and a subsequent appeal.
TCAPS attorneys argued that the OMA allowed the district to add the letter to the minutes of the closed meeting, effectively protecting the document from disclosure without a court order.
A binding precedent banning such action is now on the books after the appeals court released its ruling. The decision fills a loophole that would have put public administrations nationwide to hide records that would otherwise be subject to the FOIA.
“This decision is a critical asset to the future of Michigan government transparency,” said Nate Payne, Executive Editor, Record-Eagle. “This case is just the latest battle in a decades-long war waged by officials in our state who mistakenly believe that taxpayers have no right to access decisions made on their behalf.”
Robin Luce-Herrmann von Butzel Long, attorney for Record-Eagle, said others filing similar lawsuits now can use the appeal judges’ decision in their arguments. The courts must now follow the guidelines set out in the decision. However, Luce-Herrmann added a caveat that the Michigan Supreme Court could overturn the ruling if TCAPS appeals the ruling.
TCAPS has 21 days to ask the appeals court to reconsider its decision and 42 days to file a petition with the Michigan Supreme Court to open the matter. The letter of complaint could remain hidden from the public during this time.
Luce-Herrmann said she was pleased that the judges “saw” the dangers of TCAPS ‘position.
TCAPS attorney Kailen Piper, during an oral hearing, alleged the Titus v Shelby Township ruling that minutes of a closed session were included in the minutes and should not be submitted to FOIA to enable TCAPS to maneuver.
The appeals court ruled that such a settlement was “inconclusive” and that allowing a governing body to protect documents from the public through OMA protection would render parts of the state’s transparency laws essentially toothless.
Appeals Court Chief Justice Christopher Murray said during a hearing last week that the TCAPS position “makes no sense”.
The TCAPS argument that the letter of complaint was part of the deliberations on a closed session did not convince the court either. Although the OMA allows discussions behind closed doors, messages such as the letter of complaint are not classified as part of these consultations.
“The Titus court focused on the fact that the minutes were part of the minutes because of the ‘simple and common meaning of minutes’ and not because the minutes included deliberations by the public body within the closed session,” the decision said of the court. “(TCAPS) has not been able to convincingly show how the Kelly document, which contained complaints against Cardon, falls within the simple and ordinary meaning of ‘minutes’.”
Piper and Kelly didn’t return any comments at 3 p.m. Thursday.
The ruling is a victory for journalists and transparency advocates across Michigan.
Many news outlets – including the Detroit News and Detroit Free Press, the Michigan Press Association, Bridge Michigan, and the MLive Media Group – filed an amicus letter in February supporting Record-Eagle’s lawsuit and the implications of the court’s decision highlighted.
In the weeks and months following Cardon’s controversial departure, local calls for accountability of TCAPS rose. Outrage sparked increased attendance at board meetings with passionate and critical public comments.
Those calling for a move on the board formed TCAPS Transparency, a group that led the recall efforts against three seated trustees. Justin Van Rheenen, co-founder of TCAPS Transparency, said the ruling brings the ordeal to an end.
“This will allow us to move forward as a district after a couple of years of ups and downs,” said Van Rheenen. “At least I hope that’s what it will do.”
The content of the letter pales in comparison to the implications of the court ruling on the future of transparency, said Van Rheenen.
“The past will not change what the letter says,” he said. “This is for the benefit of any community with a public body that feels it’s okay to hide something.”
The Record-Eagle also argued a cross-appeal for an OMA violation related to the appointment of Jim Pavelka as interim superintendent after Cardon’s fall. Like Elsenheimer, the appellate court found that Record-Eagle did not provide sufficient evidence of a violation of the OMA and that the lawsuit was duly dismissed.
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