Local Government Law Bulletin January 3, 2022 Alexander P. Henderson

Access Denied: Michigan Appeals Court Upholds City’s Denial of FOIA Request for Communication Records of Mayor’s Unofficial Social Media Account

The Michigan Court of Appeals issued an opinion in the case of Blackwell v City of Livonia upholding a denial of a Freedom of Information Act (“FOIA”) request for messages sent to the Facebook profile of “Livonia Mayor Maureen Miller Brosnan.” The question at issue in the case was whether the messages are “public records” as defined in the FOIA statute. The Court considered several factors to reach its determination that the messages do not constitute “public records” subject to disclosure under FOIA.

The Plaintiff in the case sent a FOIA request to the City of Livonia asking for “inbox messages” of a Facebook profile belonging to the City’s mayor and titled “Livonia Mayor Maureen Miller Brosnan.” In its written response, the City denied the FOIA request and explained that “[n]o City resources were used to create or operate the page, and the City’s [Information Technology] Department has no control over the page. The page in question is used for the mayor’s political campaign purposes, and not to conduct City business.” After unsuccessfully requesting the City to reconsider and overturn the denial, the Plaintiff filed an action in Circuit Court to compel disclosure of the requested messages. The Circuit Court ruled in favor of the City, and the Plaintiff subsequently appealed.

In a civil action to compel disclosure of a record under FOIA, the Defendant public body has the burden of proving that it has not wrongfully withheld public records. In Blackwell, the City maintained that the FOIA request was properly denied because the requested messages did not meet the definition of “public record” under the FOIA statute. The Plaintiff argued that the messages constitute “public records” under FOIA because the mayor was posting on the Facebook account about city business, which the Plaintiff claimed was done in furtherance of the mayor’s official duties. To support his claims, the Plaintiff submitted screenshots of Facebook posts by the mayor about COVID-19 abatement efforts and monthly numbers of mental health calls to the City’s Police Department.

“Public record” is defined in the FOIA statute as “a writing prepared, owned, used, in the possession of, or retained by a public body in the performance of an official function, from the time it is created.” The Court determined that the Office of the Mayor is a public body, but the mayor herself is not a “public body” within the definition set forth in the FOIA statute because, as the Court noted, the definition does not include officers and employees of municipal governments, even though the definition does include state government officers and employees. Accordingly, in order to determine whether the Facebook messages were “public records,” the Court’s analysis turned to whether the messages were “prepared, owned, used, in the possession of, or retained by” the Livonia Mayor’s Office “in the performance of an official function.” Several factors led the Court to conclude that the messages did not satisfy this definition.

The evidence submitted by the City demonstrated that the Facebook profile did not belong to the City or to the Office of the Mayor, but, rather, it belonged to the mayor’s campaign, and was used for her purposes as a political candidate. Affidavits from the City’s Information Systems Director and the Mayoral Chief of Staff indicated that the Facebook profile was neither an official page for the Office of the Mayor, nor considered part of the City’s operations or online presence, nor accessible to other City officials. The Court noted that the contents of the posts identified by the Plaintiff were consistent with use of the social media account for campaign purposes, and thus the posts did not, by themselves, demonstrate use of the Facebook page in the performance of an official function. The Court also acknowledged an instance where the mayor posted a comment from the Facebook profile instructing a constituent to call her office to communicate regarding official business, rather than engage in such communication using the social media account. Because the evidence indicated that the messages sent to the Facebook profile were not owned, used, in the possession of, or retained by the City in the performance of an official function, the Court held that the City had met its burden of sustaining the denial of Plaintiff’s FOIA request.

There are several pieces of guidance that municipal officials and employees should take away from the Blackwell opinion regarding the use of social media. Most importantly, municipal officials and employees should not use unofficial or private social media accounts to perform official duties. In Blackwell, the City presented the example of the mayor instructing a constituent to communicate with her office through official channels in order to show that the mayor did not use the Facebook page to communicate about official business. Furthermore, the fact that other personnel of the City and the Mayor’s Office did not have access to the account also supported the Court’s conclusion that the messages did not constitute “public records.” Elected municipal officials who do not wish for their election campaigns’ private messages to become subject to disclosure should refrain from providing staff of their public office with access to campaign social media accounts.

Because social media has become such a prominent platform for public dissemination of information, it is important that municipal officials and employees understand how FOIA may be relevant to their social media use and privacy. Local government officials and employees are encouraged to contact the municipal law attorneys at Mika Meyers for confidential guidance regarding the responsible use of social media.

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