Zarko FOIA Case Continues With New Action

Mackinac Center and Michigan Press Association to File Documents With Michigan Supreme Court in Key FOIA Case

School district’s FOIA denial yesterday suggests last year’s Court of Appeals ruling may be deployed to hide public employees’ use of government resources to plan illegal activities

MIDLAND — The Mackinac Center Legal Foundation and the Michigan Press Association announced today they are filing documents with the Michigan Supreme Court about a key Freedom of Information Act ruling that is now being cited by a school district to deny a Mackinac Center FOIA request for any emails on school district servers discussing illegal school employee strikes. The filing shows that a school district on Wednesday cited the dubious 2010 Court of Appeals decision currently under review by the state Supreme Court as grounds for the district’s decision to withhold the information. The case, based on a FOIA request originally submitted in 2007 by the late citizen?journalist Chetly Zarko, is now being litigated as Rothoff v. Howell Education Association.

Patrick Wright, of the Mackinac Center Legal Foundation says:

“One of our contentions has been that last year’s ruling would lead to public employees’ illegal activity being hidden from public scrutiny, thereby gutting the state’s FOIA law.  That concern has been heightened now that a school district has used the decision to thwart a request for emails discussing school employee strikes. Such strikes are illegal.”

Wright coauthored a joint amicus brief submitted in the case last year by the Mackinac Center and the Michigan Press Association.

The Mackinac Center sent Freedom of Information requests on March 22 to 200 Michigan school districts. The request followed news that Michigan Education Association President Iris Salters had sent an email to local union officials asking for authority to initiate “crisis activities,” including a potential “statewide work stoppage.”

The emails sought by the Center and those sought by Chetly Zarko in his original FOIA request both involved messages sent using school district servers during periods of labor tension, though there is no indication Zarko was attempting to uncover plans for illegal school employee strikes. The Center and the Michigan Press Association believe Wednesday’s FOIA denial, sent by Marquette Area Public Schools, provides grounds for the Michigan Supreme Court to reconsider and overturn last year’s Court of Appeals decision. Although the state Supreme Court denied leave to appeal in December 2010, a motion for reconsideration was filed in January 2011.

Zarko passed away in 2010. Eric Rothoff was subsequently substituted as a party in the case.

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