In its 1994 Annual Report, the Michigan Law Revision Commission published a study report entitled Electronic Mail and Public Disclosure Laws.¹ That study report noted that employees at almost all major Michigan government agencies and public universities use electronic mail (e-mail) to communicate with each other and with the public. E-mail has replaced telephone calls and documentary communications in many instances, largely because of its speed and low cost. Michigans public disclosure laws distinguish between telephone conversations (which are private) and documents (which are often subject to disclosure). As the 1994 study report observed, e-mail is a hybrid of these two communication media.²
In its follow-up examination of this issue in 1996, the Commission recommended to the Legislature in its 1996 Annual Report that the Legislature amend the Michigan Freedom of Information Act (FOIA) to address the government e-mail question. Regarding amendments to FOIA, the Michigan Law Revision Commission believes that government e-mail should generally be subject to FOIA disclosure. The Commission therefore recommended to the Legislature that it amend FOIA and expressly make e-mail subject to FOIA disclosure. However, the Commission further recommended that the Legislature postpone enacting this amendment until after the Legislature and the Commission had both carefully considered what exemptions from disclosure, if any, are necessary and should be included with the e-mail amendment.
With the caveat concerning exemptions from disclosure in mind, the Commission made the following recommendations to the Legislature:
1. Add the following definition of electronic mail to the definitions section of FOIA, M.C.L. § 15.232:
Electronic mail means an electronic message that is transmitted between two or more computers or electronic terminals, whether or not the message is converted to hard copy format after receipt and whether or not the message is viewed upon transmission or stored for later retrieval. Electronic mail includes electronic messages that are transmitted through a local, regional, or global computer network.
2. Amend the definition of writing, M.C.L. § 15.232(h), by adding the following sentence:
Writing means handwriting, typewriting, printing, photostating, photographing, photocopying, and every other means of recording, and includes letters, words, pictures, sounds, or symbols, or combinations thereof, and papers, maps, magnetic or paper tapes, photographic films or prints, microfilm, microfiche, magnetic or punched cards, discs, drums, or other means of recording or retaining meaningful content. Writing also includes digitally stored data, including, without limitation, electronic mail messages.
Regarding amendments to the Management and Budget Act that might make e-mail subject to the maintenance and preservation provisions of that Act, the Commission believes that a general requirement that all e-mail be preserved would place an undue burden on state agencies. Accordingly, the Michigan Law Revision Commission recommended in its 1996 Annual Report that the Legislature amend M.C.L. § 18.1284(b) by adding the following sentence to the definition of record contained therein:
Records shall not include electronic mail messages, regardless of whether such messages are produced or stored using state-owned equipment or software, unless such messages are segregated and stored by a state agency as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the government, or because of the value of the official governmental data contained therein.
During 1997, the Commission focused attention on what types of e-mail should be exempt from FOIA requests. Among the areas the Commission considered were (1) student-to-student e-mail, (2) student-to-third party e-mail, (3) advisory or deliberative materials used to assist elected officials in reaching decisions, and (4) computer programs and software. The Commission notes that in 1994 the Legislature enacted the Confidential Research Information Act, M.C.L. §§ 390.1551-390.1557, which exempts from FOIA disclosure various kinds of intellectual property and commercial information used in research activities at state universities and colleges.
II. STUDENT-TO-STUDENT AND STUDENT-TO-THIRD PARYT E-MAIL: RECOMMENDATION TO THE LEGISLATURE.
The Commission believes that the privacy interests of students attending Michigan colleges, universities, and schools outweighs the public interest in disclosure of student e-mail that might be stored in a government-owned server or computer. In fact, Section 13(1)(b)(iii) already provides that public records may be exempted from disclosure if such disclosure would constitute an unwarranted invasion of personal privacy. Accordingly, the Commission recommends that an exemption be added to M.C.L. § 15.243 for student-to- student and student-to-third party e-mail that provides:
(z) electronic mail messages authored by a student in attendance at a Michigan university, college, or school.
III. ADVISORY OR DELIBERATIVE MATERIALS USED TO ASSIST ELECTED OFFICIALS IN REACHING DECISIONS: RECOMMENDATION TO THE LEGISLATURE.
The Commission believes that the current exemption contained in Section 13(1)(n), M.C.L. § 15.243(1)(n), for communications and notes within a public body of an advisory nature is probably broad enough to include e-mail that is of an advisory nature. Nevertheless, to make it clear that e-mail is excepted, the Commission recommends that the Commission amend M.C.L. § 15.243(1)(n) to read:
andnotes, and electronic mail within a public body or between public bodies of an advisory nature to the extent that they cover other than purely factual materials and are preliminary to a final agency determination of policy or action. This exemption does not apply unless the public body shows that in the particular instance the public interest in encouraging frank communications between officials and employees of public bodies clearly outweighs the public interest in disclosure. This exemption does not constitute an exemption under state law for purposes of section 8(h) of the open meetings act, Act No. 267 of the Public Acts of 1976, being section 15.268 of the Michigan Compiled Laws. As used in this subdivision, determinations of policy or action includes a determination relating to collective bargaining, unless the public record is otherwise required to be made available under Act No. 336 of the Public Acts of 1947, as amended, being section 423.201 to 423.216 of the Michigan Compiled Laws.
IV. COMPUTER PROGRAMS AND SOFTWARE: RECOMMENDATION TO THE LEGISLATURE.
While Michigan agencies are licensed to use computer programs and software, they have been expressly excluded from the definition of public record, pursuant to 1997 amendments to FOIA, M.C.L. § 15.232(e). It would in any event violate federal copyright piracy laws to provide such programs or software pursuant to a FOIA request.
¹ Michigan Law Revision Commission, 29th Annual Report (1994). The study report was authored by Professor Kent Syverud of the University of Michigan Law School and former Executive Secretary of the Law Revision Commission, and Mr. Daniel F. Hunter, a student assistant to Professor Syverud and currently a practicing attorney in New York City.
² 29th Annual Report, at 7.