School District Allows Union, Employees To Exclude Material From FOIA Requests

Grandville Public Schools is breaking the law by agreeing to a union contract provision that allows teachers and their union to have a say about what is released in Freedom of Information Act requests, according to the Mackinac Center for Public Policy's legal expert.

The union contract states that the union and the employee can review the documents or files about a teacher and "exclude from release all materials that are untimely, inappropriate, or are excluded under state and federal laws."

The issue is that the contract includes the words, “untimely” and “inappropriate,” which are not covered under the FOIA law. That language is on page three of the union contract.

"This provision should never have been placed in a collective bargaining agreement," said Patrick Wright, senior legal analyst for the Mackinac Center. "FOIA makes it clear we are supposed to have access to public records, not what a teacher and a teacher's union thinks a person should see."

Grandville Superintendent Ronald Caniff cited the Bullard-Plawecki Employee Right to Know Act as to why he says the union contract clause is legal.

"Our definition of 'untimely' and 'inappropriate' is consistent with the language contained within the Bullard-Plawecki Employee Right to Know Act (Act 397 of 1978)," Caniff said in an email. "Under Section 7 of that Act (423.507), 'An employer shall review a personnel record before releasing information to a third party and, except when the release is ordered in a legal action or arbitration to a party in that legal action or arbitration, delete disciplinary reports, letters of reprimand, or other records of disciplinary action which are more than 4 years old.'  However, pursuant to other statutory provisions, we would not remove documentation if the employee engaged in what is considered 'unprofessional conduct' even if the violation occurred more than four years ago."

However, James Hohman, fiscal policy analyst for the Mackinac Center for Public Policy, said that statute says that the act can’t diminish FOIA. Basically, the act cited by Caniff cites a few select areas regarding disciplinary issues that do not necessarily have to be provided under the transparency law, but that decision is made by the administration — employees are not allowed to exclude material.

"it doesn't appear that the law allows an employee to discard anything in their record," Hohman said. "It allows them to review the information and, in conjunction with their employer, remove or correct any disagreements in the accuracy of a report.

"You can't use that law to limit FOIA," Hohman said.

Similar issues regarding FOIA requests could arise if Proposal 2 passes.The union-backed initiative deals specifically with collective bargaining and such clauses could be included to shield union contracts from the public's view.