The Michigan Supreme Court decided on Dec. 29 not to hear an appeal in the Howell Education Association e-mail FOIA case, letting stand a Michigan Appeals Court ruling that government officials' personal e-mails aren't subject to FOIA.

The Michigan Press Association filed an amicus brief in this case, supporting the argument that these records should be released. That brief is included below, along with commentary from other organizations close to the case on the prospects for the case to be reconsidered by the Supreme Court or addressed with new legislation. FOIA reform legislation in Illinois is a cautionary tale in what happens when lawmakers have a clean slate to rewrite these laws.

Legislative remedies or court reconsideration?

The Lansing State Journal account notes the appeals court expectation that the issue is "one that must be resolved by the Legislature, and we call upon the Legislature to address it."

Two headlines give different perspectives on the likelihood that the Michigan Supreme Court will reconsider the case, which would be unusual but not unprecedented considering the 4-3 split on the court and the likelihood of a shift to a more conservative court in 2011. Rejection may not end e-mail fight, writes the Daily Press & Argus; Ruling may end battle for Howell school's e-mail records is the Lansing State Journal headline.

If one were to look at changing the Michigan FOIA law, access to e-mail records is only one of many issues that might be addressed with clarifying legislation. Organizations that regularly file FOIA requests note wide variance in fees charged for FOIA requests, consistent patterns of foot-dragging delays in providing answers to requests, poorly understood appeals policies, difficulties in access to electronic records and other systematic access and disclosure problems that could potentially be addressed by new laws.

The state of Illinois passed a major overhaul of its FOIA legislation at the beginning of 2010, opening up a legislative session that saw nine other bills brought forth on the topic. The bills addressed contentious issues such as the right of the public to access teacher and law enforcement officer performance evaluations, rules on acceptable costs for FOIA requests, and the disclosure of the terms of legal settlements. The Sunshine Review's tracking of the Illinois Freedom of Information Act is a cautionary tale on the ability of legislative reform to put every issue in play.

Amicus brief

For reference, here is the brief from Michigan Press Association and the Mackinac Center supporting the case for release of these email messages. It is a thorough review of the law and the particular cases surrounding electronic mail as public records, noting both Michigan cases and cases in other states.

HEA-FOIA to MSC -- 100511 -- Final to Court-1

Edward Vielmetti writes the FOIA Friday column for AnnArbor.com. Reach him at edwardvielmetti@annarbor.com .