Chilling Ruling on FOIA

Bad law coming out of Michigan on the applicability of FOIA to request school district information

Dec 24, 2022

FOIA Gras is a free newsletter run by Tom Hayden (FOIA GRAS LLC) that explores various topics in local Evanston Governance, especially around School District 65 (Evanston/Skokie). I publish and share all my data and reports. Subscribing is free, so please subscribe or share!

The WSJ has an op-ed today, “Michigan’s Gender Studies Secret.” The title is misleading because it’s not really about gender studies, it’s about whether teachers are public employees or not. The story is the following:

Parent submits FOIA for records relating to a class.
District replies with some information but it is incomplete. They claim they’ve provided all the records they have.
Parent submits a second FOIA for additional records from the teacher.
District refuses and the case goes to the courts.
Court finds that teachers are not members of a “public body” and thus, the FOIA is denied.

You can read the ruling from the court. This ruling is in Michigan (I’m in Illinois) where we have different a different FOIA law. Here in Illinois, this ruling would be denied for much simpler reasons, the IL FOIA law exempts course materials;

(j) The following information pertaining to educational matters:
(i) test questions, scoring keys and other examination data used to administer an academic examination;
(ii) information received by a primary or secondary school, college, or university under its procedures for the evaluation of faculty members by their academic peers; (iii) information concerning a school or university's adjudication of student disciplinary cases, but only to the extent that disclosure would unavoidably reveal the identity of the student; and
(iv) course materials or research materials used by faculty members.

The origins of this appear to be less nefarious than one might think - it was primarily designed to protect higher education course materials and to stop students from FOIA’ing their exams (clever).

This is too bad, I believe that taxpayers should be able to FOIA university faculty research being paid for by the public funds. The same applies for public education classroom documents, this information should be subject to the same records rules as anything else.

The claim that teachers are not subject to FOIA because they’re not members of the “public body” is just patently absurd and wrong-headed. By this logic, almost no public employee records are subject to FOIA - the municipal unions cover large swaths of the public employee base. In order to hide information, all the government would have to do is have the municipal union employees generate records, and they would be outside the scope of FOIA.

Hiding Behind Copyright

I want to address a second issue, brought up by the Mackinaw Center.

Separately, Carol Beth filed another FOIA request on December 27, 2021, asking for materials relating to diversity, equity, and inclusion training for the years 2020-2022. Rochester Community Schools granted the request after some correspondence on February 11, 2022. But it alleged that some of the relevant materials were protected by copyright, and because they were copyrighted, the district could not produce copies of them.

This very issue has stymied my research a few times. For instance, I submitted a FOIA to District 73 for records related to the training offered by Biz Lindsay-Ryan, an Evanston School Board member. I believe it is in the public interest to have transparency into the things our elected officials are saying while being paid by neighboring districts. It is in the public interest to know: Is she using materials generated by paid employees of District 65? Is she discussing District 65 or her role therein?

Below is a copy of the denial I received from District 73. Note the final paragraph.

I haven’t yet appealed this decision yet. Instead, I submitted a FOIA for records generated by district employees during the training sessions and was stymied again because my request was not specific enough. I haven’t yet decided how to continue with this. The Illinois AG has indicated I may have a right to inspect, but not copy the records. I’m not completely sure how to proceed.

I believe it is improper on multiple levels for governments to hide behind copyright protections when it comes to diversity and inclusion training:

Diversity and inclusion are prurient political issues and we deserve to know the positions that our leadership has, one way or the other.
They can use copyright to protect public figures from scandals, such as when Northwestern’s Law Faculty admitting to being racists.
The materials are literally about topics designed to lift people up (diversity and inclusion) but the subject matter is so esoteric, we have to protect it? Or are we protecting the consultants from other consultants?

I am generally not opposed to public agencies being unable to provide copyrighted data. For instance, I submitted a FOIA request to NASA once for data they purchased on lightning strikes. They denied my request for the same reason; the materials are copyrighted and they cannot re-distribute. I don’t like it, but I think it is reasonable, it’s information about lightning. The DEI consulting information claims to have secrets to close the opportunity gap and lift people out of poverty, yet we cannot see it.

I believe this to be just as bad as claiming that public school teachers are not public employees.