News & Information

Private Emails of Public Employees Not Subject to Disclosure under FOIA. In the case of Howell Education Association MEA/NEA v Howell Board of Education (January 26, 2010), the Michigan Court of Appeals held that personal emails of public employees that are stored in the public employer’s computers are not public records subject to disclosure under the Freedom of Information Act (FOIA).

The Howell case involved a series of FOIA requests submitted to defendant Howell Public Schools that included requests for all emails sent to and from three public school teachers. While the trial court had concluded that the teachers’ personal emails were public records subject to FOIA because they were generated through the defendant’s email system and stored on the defendant’s computers, the Court of Appeals reversed on the ground that the emails were not generated or retained by the defendant “in the performance of an official function.”

The Court of Appeals recognized that the nature of email presents unique questions in the context of FOIA because “even after the e-mail letter has been ‘removed from the mailbox’ by its recipient, a digital memory of it remains, possibly in perpetuity.” The court called on the legislature to adopt appropriate amendments in the FOIA statute that take this relatively new technology into account.