There Is Always Something New Under the Sun (Sunshine Law, That Is)

Many years ago the state adopted what some call the Sunshine Law: the Michigan Freedom of Information Act. The Act is intended to make information about government more accessible to the public, with certain exceptions. Much of the litigation over the Act involves these exceptions.

Michigan’s Court of Appeals, in a case involving Delta College, recently provided some insight on the scope of the attorney-client privilege exception and the nuts and bolts of denying a request for records under the Act.

Most people understand that communications with their attorney are privileged. However, this privilege is not carte blanche. The Court affirmed that communications (whether verbal or by e-mail, text or in writing) are privileged only if for purposes of obtaining legal advice. When asserting the privilege, the client or attorney must demonstrate that the communication involved the pursuit of legal advice.

As to denials under the Act, the Court also noted that a public body cannot refuse to produce records merely by reciting the language from the statute. Whatever the exemption, the denial must assert both the basis for the exemption and describe the records that are being withheld. The Act also requires that the denial describe appeal rights.

In the Delta College case, the College did not describe the records that it withheld. The denial notice also inaccurately described appeal rights. The Court ruled that these were violations of the Act, even if the records would have been properly exempt.

The end result in the Delta College case is worth noting as well. Not only did the Court of Appeals send the case back to the trial court to re-examine certain issues, it also sent the case back to award attorney fees against the College.

Thus, this case reaffirms that a local government must assert exemptions with caution.

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