ROCHESTER, Mich. (Michigan News Source) – Oakland County Circuit Court Judge Jacob Cunningham was celebrated as the county’s first ever openly gay circuit court judge in 2019. Additionally, he received much acclaim when he blocked prosecutors from enforcing Michigan’s 1931 abortion ban from going into effect in August of this year.

He is also the judge who recently ruled that although Michigan public schools are subject to FOIA (Freedom of Information Act public requests), teachers are not.

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He ruled in the case of Carol Beth Litkouhi v Rochester Community School District (RCSD). Litkouhi, the mother of two children in the school system, had submitted a FOIA request to the Rochester Community School District back in December of 2021. She wanted to get the assignments, lesson plans and other teaching materials that were being used for a class called “History of Ethnic and Gender Studies.”

According to Michigan Capitol Confidential, the District only gave her a one-page teacher lesson plan, a one-and-a-half page course outline and a slide deck for a teacher training session but did not offer her curricular material. The school replied to her FOIA by stating that no such public records were “in the District’s possession” and claimed that “individual employees do not constitute public bodies as defined by MCL 15.232(h).”

In March, she sued the school District with the help of the Mackinac Center Legal Foundation (MCLF).

Litkouhi told Michigan Capitol Confidential “I am suing the school district because I believe they are violating the FOIA in order to prevent me from viewing classroom materials. I am disturbed that the district is willing to go this far, even as far as breaking the law, to conceal information from parents that we are legally entitled to view. I hope my case can establish an important legal precedent that will encourage public school districts to be transparent and communicative with parents and taxpayers in the community.”

When the original FOIA case went to court, Judge Cunningham took the side of the school district. In his ruling, Judge Cunningham said, “Because the Legislature specifically did not indicate individual employees of school districts are within the meaning of ‘public bodies’ the Court is left with a conviction that the Legislature did not intend for public school district employees to be included in the definition of ‘public bodies’ relative to FOIA.”

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MCLF will be filing an appeal soon and MCLF attorney Steve Delie told Michigan Radio that there is nothing in the law that exempts teachers and other school employees. He said, “Yes, the teachers created these records, but they’re district employees, and for the district to be able to say we don’t have to ask for those records from our employees – we think that’s a fundamental misunderstanding of FOIA.”

The School District has released a statement that says, “The Rochester Community School District values and appreciates our highly skilled teachers, administrators and support staff who provide a quality education in a caring atmosphere for all students to attain the necessary skills and knowledge to become lifelong learners and knowledge to become lifelong learners and contribute to a diverse, interdependent and changing world. Rochester Community Schools continues to focus on the education, growth, safety and wellness of our students, staff and school community.”

This isn’t the first time the school district has been drawn into controversy concerning FOIA requests. Michigan Capitol Confidential reported in June of this year that the teachers union tried to interfere with FOIA requests from parents and that the District was also trying to charge exorbitant fees to process FOIA requests.

Litkouhi posted her reaction to the judge’s decision on her Facebook page. She commented, “Ideally, we need a district that treats parents with respect and where FOIA requests aren’t even necessary because no one is trying to hide anything. It’s also interesting that the District directed me to send FOIA requests in the first place, if they believed classroom materials aren’t responsive to FOIA. This ruling doesn’t erase concerns about public school transparency. In fact, it raises more questions…Apparently, this judge doesn’t consider employees of a public school district part of the public body, and he doesn’t consider instructional material to be part of the performance of a school district’s official function (which should be educating kids, right?). Instructional materials are instead considered private? How strange!”

Litkouhi said that her attorney had brought up some interesting points after the ruling. Delie said, “The ruling may create a loophole that allows records to be deemed private as long as they are maintained by individual public employees, not the public entity. If other lower courts take a look at this decision and begin following it, I think it’s going to be much more difficult not only for parents like our client, but for journalists and for concerned citizens to be able to gain access to all sorts of records, not just school records.’”

Litkouhi won’t be going away anytime soon. The Facebook page described above was for her campaign to be on the school board – which she won. She will be on the board for six years.