TRAVERSE CITY — A lawsuit that will affect government transparency statewide will go before the Michigan Court of Appeals on Tuesday.

Three judges will hear oral arguments in a lawsuit filed in early 2020 by the Record-Eagle against Traverse City Area Public Schools and TCAPS Board of Education trustee Sue Kelly. The Record-Eagle contends TCAPS and Kelly, who was board president at the time, improperly used a closed-session meeting minutes exemption to withhold a complaint letter against former Superintendent Ann Cardon.

A decision from the appeals panel likely will not come for several weeks.

The civil case filed in January 2020 claims “willful and intentional” violations of the Open Meetings and Freedom of Information acts in an effort to obscure the details of Cardon’s ouster. The counts largely stem from an October 2019 dust-up and several subsequent board decisions the Record-Eagle claims were illegally made outside open sessions. It also concerns FOIA requests seeking information on Cardon’s abrupt departure, which came less than three months on the job.

Thirteenth Circuit Court Judge Kevin Elsenheimer issued an order to release a document concerning complaints against Cardon in July 2020, but TCAPS appealed Elsenheimer’s ruling to the higher court.

Kailen Piper, attorney for TCAPS, declined to comment ahead of the hearing.

Piper argued in her brief that an earlier Michigan Court of Appeals ruling allows TCAPS to withhold the records by classifying them as part of the minutes of a closed session, a move that would exempt them from disclosure to the public. Elsenheimer ruled against that argument.

Piper wrote that the 13th Circuit ruling “placed undue weight on an antiquated non-binding attorney general opinion that does not bear on the actual issue.” Piper requested the Court of Appeals “provide guidance” to Elsenheimer and lower courts.

In a Record-Eagle brief, the newspaper’s attorney Robin Luce-Herrmann said Elsenheimer was “indisputably correct” that the OMA does not allow a public governing body to shield documents subject to FOIA requests by adding them to closed-session meeting minutes. The Michigan Supreme Court previously ruled that evaluations, personnel records and complaints regarding public employees like Cardon, must be produced upon a FOIA request.

Luce-Herrmann wrote the TCAPS argument “flies in the face of well-established law.”

A ruling in favor of either TCAPS or the Record-Eagle could set precedent future parties can cite in a similar situation. The Court of Appeals decision could have far-reaching effects both on the public’s ability to access such materials and a governing body’s ability to hide certain actions behind closed doors.

“It’s very important to clarify what we believe is the law,” Luce-Herrmann said. “A public body cannot simply take a document into closed session to prevent it from being accessible to the public.”

The rest of the case against TCAPS and Kelly is on hold until the Court of Appeals rules.

The hearing is virtual, but it will not be streamed live online. Video of the hearing will be posted the following day.

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