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July 19 2021

Closed Session Documents May Be Subject to FOIA

By: Dominic T. Clolinger

A recent Michigan Court of Appeals decision issued on May 13, 2021 held that documents otherwise discoverable under the Freedom of Information Act (“FOIA”) are not generally rendered exempt merely because they provide the basis for a closed meeting under the Open Meetings Act (“OMA”) or are included in the official record of the same. Accordingly, the Appeals Court decision establishes that, although the minutes and transcripts of a closed session are exempt from disclosure, various documents that may be relevant to or relied upon in the same are not necessarily exempt. As a result of this ruling, it is important to remember that absent a specific exemption under FOIA, files are ultimately disclosable.

This clarification of the FOIA exemption relating to closed sessions arises from the case Traverse City Record Eagle v Traverse City Area Pub Schs Bd of Educ (“Traverse City”).  In Traverse City, several complaints were filed against a newly hired superintendent. The School Board convened a meeting to discuss the complaints, and the superintendent requested a closed session under the OMA. The Board president, M. Kelly, created a document that contained the complaints against the superintendent. The so-called “Kelly document” was requested pursuant to FOIA. The School Board argued that, because the document was used in a closed session and contained in the minutes, it was exempt from disclosure.

The School Board’s argument originates from the overlay between FOIA and the OMA.

FOIA requires public bodies to release certain information at a citizen’s request—unless said information is expressly exempted via statute. The purpose of FOIA is to permit persons to be informed and to foster participation in the democratic process.

FOIA defines a public record to be “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.” One express exemption for public records under FOIA is “minutes of a closed meeting conducted under the Open Meetings Act, MCL 15.261 et. seq.” In contrast, the minutes for open sessions under the Open Meetings Act are disclosable under FOIA. When a closed session is commenced, the secretary of the public body takes separate minutes, which as discussed above, are exempt from disclosure.

In Titus v Shelby Charter Twp, it was determined that transcripts of a closed session are technically minutes under the OMA and thus, exempt from disclosure under FOIA. In defining the term “minutes,” the Titus Court stated that the OMA does not purport to create an exclusive listing of the information that may be contained in minutes of a meeting.

Relying on this language, the School Board in Traverse City argued that the “Kelly document” should be exempt from disclosure because it was part of the meeting minutes. The Court of Appeals disagreed. The Court explained that “just because the OMA does not give an exclusive list of what may be contained in a meeting’s minutes does not mean that every document referred to in the meeting can be said to be a part of the same.” To determine whether a document is exempt under the “minutes exception,” the focus should be on the plain and ordinary meaning of minutes. The School Board, rather, was focusing on whether the Kelly document was made part of the official closed session record. According to the Court, if the School Board’s interpretation is followed, it would seemingly allow any public body to attach anything to the official record in order to exempt it from disclosure—rendering other exemptions of the OMA mere surplusage.

The School Board also attempted to argue that the Kelly document assisted in deliberations during the closed session and is, therefore, exempt from disclosure. While the OMA does differentiate between deliberations and decisions, it does not further differentiate between different kinds of “deliberations.” The Court reiterated that the focus of whether the document is exempt from disclosure is whether it definitionally falls within the scope of the exemption. The Titus Court itself focused on the fact that the transcripts at issue were part of the minutes because of the “plain and ordinary meaning” of minutes, and not because the transcripts involved deliberations of the public body within the closed session.

In sum, the School Board in Traverse City could not render the document exempt merely because it was a subject of the closed meeting. The discussions and deliberations of those involved within a closed session are generally exempt. However, documents, such as personnel files, settlement agreements, and performance evaluations, that are brought into the closed session are disclosable where no individualized exemption exists for the same.

As a result of the Traverse City case, municipalities must carefully consider what documents they discuss in a closed session. Absent a specific exemption, such files may ultimately be deemed to be disclosable. Accordingly, we recommend that our municipal clients who have questions of whether a document is disclosable under the Freedom of Information Act consult with legal counsel at Mika Meyers to discuss applicable legal requirements and implications.