On January 26, 2010, the Court of Appeals published its decision in Howell Education Association v Howell Board of Education, No. 288977.  Here, the intervenor submitted FOIA requests to the school district requesting all email correspondence to and from certain teachers.  The trial court concluded any emails generated and retained through the school district's email system were public records subject to disclosure.  The Court of Appeals reversed holding that teachers' personal emails were not public records under FOIA on the basis they were captured in the school district's digital memory.

A public body's mere possession of a record does not render it a public document.  Rather, to become a public record, a document "must have been stored or retained by defendants in the performance of an official function."  Without a showing of an official function, other than simply retaining the electronic file, the court refused to "convert every email ever sent or received by public body employees into a public record subject to FOIA."

While the school district's acceptable use policy notified public employees that emails may be reviewed by school officials and are subject to subpoena, it did not indicate emails could be disclosed to the general public.  Further, any violation of the acceptable use policy "militates in favor of the conclusion that the email is not a public record because it falls expressly outside the performance of an official function, i.e. the furtherance of the instructions goals of the district."

The court called upon the Legislature to update the FOIA statute to today's technological world and compared the court's present task to "that of a court being asked to apply the laws governing transportation adopted in a horse and buggy world to the world of automobiles and air transport."