Electronic Mail and Michigan’s Public Disclosure Laws: The Argument for Public Access to Governmental Electronic Mail

This Note explores the potential for citizens to request electronic mail (e-mail) records from government agencies using public disclosure laws, with emphasis on the Michigan Freedom of Information Act (FOIA). E-mail is a medium that has come to replace both telephone calls and paper documents for many purposes. The applicability of public disclosure laws to e-mail, however, is less than clear. Telephone conversations by public employees for most purposes are confidential, while paper records created by those same employees can be requested under the FOIA. Thus, should public e-mail remain private and confidential or should it be subject to FOIA requests?

Public access to e-mail, like public access to government records, would help promote the goal embodied in the disclosure laws of open government. Yet public disclosure of e-mail also could considerably dampen the candor, informality, and ease of communication, which makes e-mail so popular and effective with employees of public agencies. This Note argues that an attempt to request e-mail messages most likely would succeed under the provisions of Michigan’s public disclosure laws. More importantly, this Note maintains that, with certain exceptions for faculty of public schools and for highly informal messages, e-mail created by public agencies should remain open to public scrutiny given the policies underlying the Freedom of Information Act.