Plaintiff, a resident of Duncan Township, filed a FOIA request asking for copies of notes taken during the past year’s Duncan Township Board and Zoning Board meetings. The town clerk asked board members whether they had any notes to provide before responding to Hopkins’ request. One of the board members, Frank Pentti, was the only one to respond, replying that he had some handwritten notes he kept in a personal diary. The officials determined the notes were personal and not subject to disclosure, and did not include them in the FOIA response. Hopkins responded by filing a complaint for violation of FOIA, claiming that the town failed to produce the records he requested. The trial court, relying on Howell Ed Ass’n MEA/NEA v. Howell Board of Ed., 287 Mich.App. 228 (2010), held that because Pentti’s notes were meant for personal use and not for any official function, they were not public records subject to disclosure under FOIA. Hopkins appealed.
Drawing parallels to the Howell case, which involved personal emails written by teachers and stored on the district’s servers, the Court of Appeals upheld the trial court’s decision. The Howell court had held that personal documents are not considered public records simply because the person who created them is a public employee, nor are they public records simply because the public employer has access to them. Rather, the personal documents would only become public “in the performance of an official function” such as being read into the record at a town meeting or being used as a basis for action by public officials. Further, the court drew parallels to MacKenzie v. Wales Twp., 247 Mich.App. 124 (2001), which involved untitled, undated, and uncirculated handwritten personal notes, which were deemed not subject to disclosure under the federal FOIA. In that case, the court wrote that because the notes were not considered by other members of the board, because they could be retained or disposed of at the discretion, and because the notes would not be available through discovery in ordinary litigation, the notes were not subject to disclosure under FOIA.
In this case, because Pentti’s notes were kept in a personal diary, which he also used for many other purposes, including in his capacity as a member of the Kenton Historical Society, because he did not share them with other board members or use them to make decisions during meetings, and because they were retained or destroyed at Pentti’s discretion, the notes were personal in nature and not public records subject to disclosure under FOIA. The trial court’s decision was affirmed.
Hopkins v. Township of Duncan, 2011 WL 5008557 (Mich. App. 10/20/2011)
The opinion can be accessed at: http://coa.courts.mi.gov/documents/OPINIONS/FINAL/COA/20111020_C300170_23_300170.OPN.PDF
