Court rules against transparency in Rochester schools FOIA case

An Oakland County Circuit Court ruling in a lawsuit involving the Rochester Community Schools District could mean less government transparency.

Carol Beth Litkouhi, parent of a student in the school system, used the Freedom of Information Act to ask district officials for the curriculum used in a class in ethnic and gender studies. School administrators denied her request, she sued and the court ruled in their favor.

Litkouhi plans to ask the Michigan Court of Appeals to review the case. She is represented by the Mackinac Center Legal Foundation.

• Learn more about Carol Beth Litkouhi’s case
• Learn more about the Mackinac Center Legal Foundation

In response to the FOIA request, the Rochester schools administration said it did not possess the material, though it had already been taught for a semester. The district argued it was not required to ask the teacher to release the requested material.

The Mackinac Center Legal Foundation sued on behalf of Litkouhi to obtain the material. The district argued in court that its teachers, who are public employees, are not the public body mentioned in the law and therefore are not required to comply.

The court agreed, ruling the FOIA law does not extend to documents held by public employees. A public employee’s documents are not subject to FOIA requirements if the administration does not possess them as well. If the administration has a copy, however, it is required to share the information with the public and fulfill the FOIA request.

Derk Wilcox, senior attorney at Mackinac Center, explains:

The court decided this because the statute’s definition of a “public body” includes “employee” in one section about the governor’s executive branch, but not any other section. Therefore, the court concluded, employees in schools, municipalities, and non-executive branch state government are not covered by FOIA unless their documents are held in storage by some administrator.

Wilcox says that the ruling, if it stands, could allow for government officials to hide documents and then claim that no administration holds them. He says this could also create a lengthier process for courts as they seek to determine whether a government office has complied with a FOIA request.

Wilcox says that schools now have to ask two questions. First, do the materials mentioned in the FOIA request exist? Second, if they do, where are they — with an employee only, or also with an administrator? As for now, that answer will determine if the document is public or not.