Personal Emails for Official Government Business Are Not Exempt from FOIA

Good environmental policy requires good governance, and good governance requires transparency. The Court’s decision to validate Progress Michigan’s Freedom of Information Act (FOIA) request against AG Schuette’s office, even in light of the fact that Progress Michigan originally did not follow all of the procedural steps to ensure a proper FOIA filing, strengthens existing laws that allow our state’s residents to hold their elected officials accountable. Additionally, it demonstrates the Court’s prioritization of transparent government over procedural requirements.

Progress Michigan requested then Attorney General William Schuette to disclose personal emails from his office that were used for official business. Schuette denied the request, and Progress Michigan filed suit, alleging failure to comply with the Freedom of Information Act and the Management and Budget Act. Schuette attempted to get the case dismissed by claiming that Progress Michigan’s complaint was improperly filed. Once Progress Michigan amended the complaint, AG Schuette claimed the amended complaint was filed too late. The State Supreme Court reversed the Court of Appeals decision, holding that Progress Michigan’s amended complaint met both verification and timely submission requirements, and remanded the case back to the Court of Claims.

Progress Michigan, under Michigan’s Freedom of Information Act (FOIA), requested that then Attorney General (AG) William Schuette disclose certain emails sent or received by him and/or certain employees of the AG office. The FOIA request sought emails sent from personal accounts for official AG work. The AG office denied the request, so Progress Michigan sued, alleging that Schuette’s denial violated FOIA. 

AG Schuette asked the Court to dismiss the case twice on grounds of procedural technicalities—first arguing that Progress Michigan’’s complaint was not properly signed and verified upon filing, and subsequently arguing that the amended complaint was filed too late, since FOIA requests must be filed within 180-days. The Court of Claims disagreed and ruled in favor of Progress Michigan. AG Schuette then appealed that decision to the Court of Appeals, which reversed and remanded to the lower Court of Claims to dismiss the case, reasoning that because the original complaint was not properly signed and verified, it was a “nullity” and could not be amended. The State Supreme Court permitted Progress Michigan to appeal that decision.

Though there were a handful of issues before the Court, the most pertinent to the outcome of the case were the following:

1. Did the Court of Appeals err in holding that Plaintiff’s original complaint was a “nullity,” or “invalid from its inception” and, thus, “incapable of amendment” because it was not initially signed and verified?
2. Did the Court of Appeals also err in holding that the signed and verified amended complaint was filed outside of the required 180-day period from the date of Defendant’s denial of the requested emails?

The majority opinion was written by Justice Cavanagh and joined by Justices Markman, Zahra, Bernstein, and Clement. The Court ruled against AG Schuette, reversing and remanding the case back to the Court of Claims, holding that: 1) the verified amended complaint was sufficient to replace the original complaint and 2) because the original complaint had paused the 180-day period, the amended complaint was filed within the FOIA’s statute of limitations period.

The Court ruled that although the original complaint was not signed and verified as required, the amended complaint, which was signed and verified, superseded the original. The Court reasoned that for a FOIA claim, a case is commenced when a party files a complaint. If the Act intended for the proper signature and verification of the complaint to affect the commencement of a case, it would have explicitly said so. Therefore, though originally unverified, the first complaint filed by the Plaintiff tolled the statutory limitations periods, meaning that the amended complaint was filed within the required time window.

Chief Justice McCormack, joined by Justice Viviano, concurred with the majority opinion but separately asserted that the Court should have used this case as an opportunity to overrule Scarsella v. Pollak, which provided the precedent on which the Court of Appeals had relied in its ruling for the Defendant in this case. The Chief Justice argued that the Court should broadly hold that all statutes of limitations are tolled at the time a complaint is filed, regardless of procedural inadequacies or deficiencies that are later corrected, unless the statute clearly says otherwise. Justice Markman wrote a separate concurrence to disagree with the concurrence by Justices McCormack and Viviano, claiming that Scarsella should not be overruled. Justice Markman agreed with the majority that the rule from Scarsella should be maintained, which renders the filing of complaints with certain procedural deficiencies insufficient to toll the applicable statute of limitations period.