A Michigan Court of Appeals has ruled on the side of The Traverse City Record-Eagle in a case about transparency. The ruling says that Traverse City Area Public Schools cannot use the Open Meetings Act to withhold documents.
In the autumn of 2019, the Record-Eagle filed a Freedom of Information Act Request to get a document which had complaints on then-TCAPS Superintendent Ann Cardon. The school board declined the request and a subsequent appeal, saying the document was a part of the minutes of a closed session. The lawsuit to get the documents was filed in January 2020.
The Michigan Open Meetings Act says that separate minutes are to be taken for a closed session, and that "these minutes... are not available to the public, and shall only be disclosed if required by a civil action filed under section 10, 11, or 13. "
Judge Christopher Murray wrote in his opinion, "We hold that documents otherwise discoverable under FOIA are not generally rendered exempt merely because they provide the basis for a closed meeting under the OMA or are included in the official record of the same." Murray's opinion creates a binding legal state precedent that prevents others from exploiting the OMA closed meeting loophole.
Robin Luce-Hermann is the attorney who represented the Record-Eagle. She says others copying TCAPS's use of the OMA's closed meeting loophole would be bad news for those seeking transparency and information from public bodies.
"If the school board was right, then any public body could take any document into closed session and prevent its disclosure in response to a Freedom of Information Act request."
Record-Eagle executive editor Nate Payne agreed with Luce-Hermann, and said the loophole was so big that local officials "could drive a truck through (it)."
"Along the way, there was pretty substantial public pushback on the district and towards the board, and, you know, it’s still of public interest to know exactly what happened back in the fall of 2019," he says. "In the fall of 2019, there were a series of board meetings where there were literally hundreds of people in attendance, and that's not exactly run-of-the-mill attendance for board meetings in any local public school district."
TCAPS did not respond to a request for comment.
