Which has more protection from the nosy, prying eyes of a reporter: your secret ballot or the private e-mail that you happened to send while at work?

The answer might surprise you, as a Michigan Attorney General's opinion has recognized the rights of individuals to examine anonymized ballots. The Michigan Supreme Court is still waiting to hear a case which would settle whether teacher e-mail - and by extension, a wide range of other e-mail sent at work by public employees - is subject to public review.

Secret ballots are subject to FOIA (but there's a catch)

The Michigan Attorney General, Mike Cox, has issued a ruling that voted ballots are public records subject to disclosure under Michigan Freedom of Information Act law, within prescribed limits.

The ruling, originally reported in the Michigan Messenger, states that "a person must be allowed to inspect or examine voted ballots, which are not traceable to the individual voter, and to receive copies of the ballots upon request subject to reasonable restrictions prescribed by the Secretary of State". The full opinion, No. 7247 of May 13, is available online. The ballots that are subject to citizen inspection do not include any personally identifiable information, and thus don't trigger the state's privacy exemptions for FOIA requests.

This is seen as a victory for the Michigan Election Reform Alliance, an Ypsilanti-based group that supported previous efforts to audit elections in Allegan County. I have had a hard time figuring out what exactly went down in that part of the state based on what's available to search online; a "West Michigan News Company" is a source for a very obvious partisan account of the FOIA rejections. The Allegan News account of October 2009 is more clear, describing a battle between Lee Township "activist" Pat Foster and the cities of Saugatuck and Douglas regarding ballot improprieties in a circuit judge race in 2008 caused by errors in election administration.

I've written before about the situation in Saugatuck, with the city manager in the middle of controversy over vexatious FOIA requests.

Teacher e-mail is private (so far)

The Michigan Press Association has filed an amicus brief in the Zarko vs. Howell Education Assocation case, arguing that e-mail sent by teachers on school computers should be treated as public records. The e-mail in question was sent in the course of heated negotiations between the Howell teacher's union and the Howell school board. I wrote about this case in April, and government reporter Ryan Stanton covered the original case in January. The Livingston Daily brings the story up to date.

A copy of the brief is on the Ann Arbor Area Government Documents Repository. It is 43 pages and cites 25 cases. As much as I'd like to summarize it for you point-by-point, I can't; I stopped on page 13, where the brief discussed what the word "it" meant in the context of MCL 15.232(e), a discussion which stretched over 4 pages.

A straightforward reading of the brief finds one simple point of emphasis, however, referring to the Watergate-era intent of FOIA legislation: "The people wanted a way to monitor government activity themselves to make sure government workers and politicians weren't crooks. They did not trust the government to police itself." The argument runs that by weakening FOIA to give it the narrowest possible reading of what might be a public record, the ruling would subvert the legislation by giving "a direct supervisor, who will frequently have a personal incentive to hide a subordinate's wrongdoing, in charge of bringing the employee's inappropriate or criminal acts to light." 

The brief goes on to mention a number of embezzlement cases which would have never seen the light of day had this ruling been in place, since the e-mail trail that made the case could have been shielded by an aggressive use of FOIA exemptions.

There's a case in Wisconsin, Karen Schill v. Wisconsin Rapids School District, which covers some of the same ground regarding the personal nature of teacher email records. The Law Librarian Blog has an analysis; that should be reaching a decision soon, but I haven't seen it hit the Internet.

The recommendation from this as a practical matter does seem pretty clear. If you are a public employee, in the middle of negotiating a contract with your employer, you shouldn't use your employer's e-mail system to do it. Get a Hotmail, Yahoo, Gmail, or AOL account instead. Any temporary inconvenience is clearly outweighed by keeping those personal and private discussions out of the hands of the party you are negotiating with.

Edward Vielmetti writes the FOIA Friday column for AnnArbor.com. Contact him at edwardvielmetti@annarbor.com.