OTTAWA COUNTY — A joint lawsuit involving two public records requests by Ottawa County residents will proceed after a judge ordered the county to attempt to produce the records for the judge to review.

The judge, however, ruled that Michigan’s Freedom of Information Act law does not require individual members of public bodies to comply with records requests unless the record is "used" by the body to perform a public function — a legal interpretation that could have far-reaching legal repercussions on how public bodies answer FOIA requests.

“The Court concludes that the Ottawa County Officers Compensation Committee and the Ottawa County Commission are both ‘public bodies’ under the plain meaning of FOIA. However, the individual members of those county bodies … are not,” 48th Circuit Court Judge Margaret Bakker ruled in an order she issued on Feb. 21.

Read More: Sixth lawsuit filed against Ottawa County Board of Commissioners under Ottawa Impact leadership

The ruling came as the result of a Feb. 3 hearing in the Hill and Sanner v. Ottawa County lawsuit. The two plaintiffs, Adrea Hill and Luke Sanner, filed the joint lawsuit in October 2024 after the county denied their separate requests to see communications of public officials who are members of far-right fundamentalist group Ottawa Impact, which held a majority on the county board of commissioners in 2023 and 2024.

Both the county and the Ottawa County Board of Commissioners are named in the lawsuit.

Hill and Sanner are seeking:

• A declaration that Ottawa County violated Michigan’s FOIA law.
• A court-ordered injunction requiring the county to produce the requested documents for Hill’s and Sanner’s respective requests within 14 days.
• Reasonable attorney's fees.
• A complete accounting under oath by a corporate witness as to whether any responsive documents have potentially and/or likely been destroyed.

Hill asked for emails and text messages during a brief window on one day in 2024 by one OI-aligned public official on the county’s compensation commission. Sanner asked for digital communications between six OI-aligned county commissioners from a two-day window in 2023.

Despite the fairly specific requests, Bakker framed both requests as “broad” and “breathtaking in scope.”

“Much like the rest of the legal world, the advancement of technology presents significant problems for the judicial world,” Bakker said Feb. 3. “I think that there's a significant public policy issue that hasn't been addressed by the courts. I would be very surprised if whatever I do doesn't get reviewed by the court of appeals, which is fine. They obviously have more resources than I do for this particular situation.”

Read More: Judge signals that officials' private devices exempt from FOIA requests

In the Feb. 21 order, Bakker declined dueling requests for summary judgment — the plaintiffs asked that their FOIA requests be granted while the county asked for dismissal of the lawsuit — and gave the county’s FOIA officer 14 days to contact the officials and ex-officials who might still hold pertinent records.

The judge also ordered that the county had 28 days to show evidence that the FOIA coordinator complied with the judge’s instructions, that the officials had acknowledged the requests and responded to them, and that “responsive material” had been identified and turned over to the county for review.

In order to be applicable, records must have served as the basis for a decision of the public body or have been circulated between two or more members with a subsequent action or decision by the public body.

“Any private communications by these members can only constitute a ‘public record’ subject to FOIA disclosure to the extent the communications were ‘used’ by the body itself in performance of a public function,” Bakker wrote.

That language sparked alarm with transparency experts.

“The opinion certainly raises eyebrows,” said Jennifer Dukarski, general counsel for the Michigan Press Association. “While it’s concerning to think that the group of individuals that are regarded as an entity could be able to shield their personal communications from the public when they are discussing county or local business, this opinion doesn’t necessarily go that far. The court did note that any document used in decision-making by the body could result in information subject to FOIA.”

The more concerning aspect of Bakker’s order, Dukarski said, was that it doesn’t account for key descriptors within the state’s FOIA statute.

“Looking closely at the opinion, the court has missed several important parts of Michigan’s FOIA law,” Dukarski said. “It isn’t just items ‘used’ by the members of the public body. Public records also include those that are prepared, owned, in the possession of, and retained by the public body in the performance of an official function. Records that are prepared by members are subject to FOIA, even if they aren’t the basis for a decision and are only part of deliberations or discussions.”

The plaintiffs’ attorney, Sarah Riley-Howard, said she was pleased to see that the county must now pursue a good-faith effort to fulfill her clients’ requests, however, she was “troubled” by Bakker’s definition of what a public record entails.  

“We are gratified that the trial court rejected the County’s position that public officials’ communications on private devices were shielded from FOIA. We are also grateful that the County has been ordered to review what communications exist to determine whether they need to be produced to my clients under FOIA,” Howard said in a Tuesday statement to ONN. 

“But we are troubled by the trial court’s view of what is a ‘public record’ that needs to be produced under FOIA, and that it reads limiting requirements into the statute that are not there,” she said. “We also respectfully disagree with any implication that limits what is produced under FOIA by limiting whether these county-level officials fall within FOIA, contrary to what the Michigan Supreme Court said clearly in the Bisio case.

The Bisio case refers to a 2020 decision in the case of Bisio v. City of Clarkston, where the Michigan Supreme Court ruled that “while the term ‘public body’ suggests a collective entity, the statutory language provides that a single officer or individual may be considered a public body under FOIA,” which appears to conflict with Bakker's order.

Howard said, despite her concerns with Bakker’s wording, the Sanner-Hill lawsuit could be resolved amicably.

“Ultimately, we are hoping that the county decides to come down on the side of transparency, and to produce all of the communications requested from the public officials in my clients’ original FOIA requests. It would be the easiest way to put this case to bed and end it as soon as possible,” Howard said.

The county’s new interim corporation counsel Ron Bultje deferred comment on the lawsuit to attorney Mike Bogren, who has been representing the county in the case. Bogren declined Tuesday to provide a comment for this article.

A hearing date has been set for 3 p.m. Monday, April 14, in Allegan’s 48th Circuit Court.

Dukarski said the case could have legal repercussions if applicable documents under the statute are not turned over for review.

“As this case continues, it will be important to watch what the outcome is of the review of the documents that will be found in the discovery process, as they may meet these exact criteria,” she said.

Meanwhile, Howard filed a motion to disqualify Bakker from continuing to preside over the case.

After the hearing concluded, Howard said she became aware of Bakker’s involvement in a controversial FOIA that led to a rebuke last year by the Michigan Supreme Court over her conduct.

Read More: FOIA case lawyer moves to disqualify judge, cites past 'unethical' conduct

“Plaintiff’s Counsel learned that the Court had previously had her own communications made public through FOIA, and that those communications had been used as part of a political campaign,” Howard wrote in the motion for disqualification that was filed Feb. 18. 

“The publication of those communications had also resulted in a complaint against the Court to the Judicial Tenure Commission and a rebuke by the Michigan Supreme Court. Because members of the public might question the Court’s ability to decide the issues in this case impartially in light of the Court’s personal experience, Plaintiffs request that the Court disqualify itself,” the filing said.

Bakker made headlines after a FOIA filed in 2020 revealed inappropriate communications with the Allegan County Prosecutor during a criminal trial. Once the emails were released publicly, the defendant’s attorney appealed the conviction and asked the higher courts to order a new trial for his client.

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In September 2024, the Michigan Supreme Court ruled it was unethical for Bakker and the prosecutor to have off-the-record discussions during the trial, but the misconduct was not enough to reverse the conviction and re-try the case, according to Michigan Public Radio.

The Supreme Court majority opinion, authored by Chief Justice Elizabeth Clement, did appear to hold open the possibility of sanctions for Bakker.

“The trial judge’s actions fell short of the high ethical standards that Michigan jurists are expected to uphold, and regrettably, her behavior has the potential to erode public confidence in the integrity of our justice system,” she wrote. “Still, the issue before us is not whether the trial judge should be sanctioned for her misconduct.”

As of this writing, the JTC has not indicated that it has sanctioned Bakker.

Bakker has not responded to Howard’s motion to disqualify as of this writing. Bogren filed a response asking the judge to decline Howard's request.

— Sarah Leach is the executive editor of the Ottawa News Network. Contact her at sleach@ottawanewsnetwork.org. Follow her on Twitter @ONNLeach.