Feb 1, 2010

Anti-union FOIA editorial is bizarre

I didn’t think it was possible for the Livingston County Daily Press & Argus to veer even farther to the right, but their continued anti-union stance took them there.

After working there for six years, I was well aware of the corporations anti-union bent, but that was not reflected in their editorial opinions, until now. Their bizarre editorial today on the Michigan Court of Appeals decision on the case involving a Freedom of Information Request (FOIA) for some 5,500 emails sent and received on Howell Public School computers between members of the teacher’s union was what was really bizarre. The three-judge panel ruled on Jan. 27 that the emails were not public record and therefore not subject to public disclosure.

This case was launched because anti-union activitist Chet Zarko was looking for dirt to smear the union with. The paper’s position is that the judges were wrong, and that because the emails were “sent across a computer system bought and paid for by the Howell school district” they have no right to privacy. I don’t know if the Gannett corporate attorney wrote this editorial, but they should have sent a reporter to the hearing on Jan. 5 where oral arguments were taken. I went, and it would have made it so much more clear for them.

No one is saying, not even the three judges, that the employer - the HPS administration - can’t look at any and all emails sent and received, but they are not public record. They have nothing to do with the function of government, so why should they be public record? They do not affect the performance of a public body.

The editorial said, “If you want privacy while sending an e-mail, send it from your home computer.” There’s a slight problem with that position. If I send an email to my granddaughter’s teacher at Howell’s Northwest Elementary School about her grades, that’s public record under their argument.

Not only that, but under the school district’s position, even emails sent from and to a teacher’s personal lap top computer using email programs like Yahoo would be subject to FOIA if they used the district Wi-Fi. That’s new ground, but the paper thinks otherwise because the FOIA law was amended; most notably in 1996, when “lawmakers changed it to allow people to submit requests by "electronic mail."

Email use in 1996 was not even close to the widespread use it has today. In the old days, prior to 1996 at least, teachers had those old fashioned cubbyholes where written material was put in their mail boxes. Those were not public record, so why should emails be public record just because of the method of delivery?

Back in the spring of 2007, Zarko in cahoots with anti-union Howell school board member Wendy Day, filed a FOIA in a fishing expedition request for the emails of union leaders on their HPS account. Zarko alleges Howell Education (HEA) leaders have "conducted a large amount of union business on public time, including trying to retain MEA (Michigan Education Association) affiliated MESSA health-insurance, and using parent-teacher conferences to recruit parents (to) their side of a collective-bargaining debate.” Even though that was proven not to be the case, Zarko persisted in an effort just to find something embarrassing.

In October of 2008 Livingston County Circuit Court Judge Stanley Latreille determined that the e-mails written by union leaders on school computers are public record, and subject to disclosure. The HEA appealed to stop the disclosure because both the district and the union agreed that they had a “recognized right” to use the email system.

That case was appealed to the Michigan Court of Appeals, and oral briefs were taken by a three-judge panel at a hearing on Jan. 5. The court issued its ruling in favor of the union on Jan. 27, saying just because the 5,500 emails were captured by the school’s servers does not mean they are public record.

Zarko is appealing the decision to the Michigan Supreme Court bankrolled by rightwing anti-union National Right to Work Foundation. At the Jan. 5 hearing, the tax-payer financed HPS lawyers argued the case. It’s not clear if the school board and my taxes will continue to finance Zarko’s witch-hunt. But I did talk to school board member Debbi Drick on Friday, and although she said the board had not yet met to discuss it, she personally didn’t see a need to appeal.

In her opinion, the question has been answered.

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