Email-gate: Impact on Schlissel and his timeline for dealing with Brandon?

You’re right that DB and the University have an obligation to preserve public records, but you’re presupposing that what’s at issue here is a “public record.” A “public record” is “a writing prepared, owned, used, in the possession of, or retained by a public body in the performance of an official function.” MCL 15.232(e) (emphasis added). The "black text, son" is in the statute, but you know that reading the statute is only the first step.

As far as I can tell, this hasn’t been heavily litigated, but if, as DB would likely argue, the emails were not sent in the course of official business but were instead snarky responses to snarky fans whose views had no influence on any actions he took or decided not to take, he could succeed on a claim that the emails were just personal correspondence to his work address, not true public records.

Discussing whether a record maintained by a public university constituted a public record, a plurality of the Michigan Supreme Court wrote that before a document can be considered a public record, the court must find it was maintained “in the performance of an official function.” Kestenbaum v. Michigan State Univ., 327 N.W.2d 783, 792 (1982) (Ryan, J., dissenting) (3-3 opinion that affirmed by default because court was equally divided).

While Judge Ryan’s Kestenbaum opinion is of limited use given it was filed in dissent, the court in Howell Ed. Ass'n, MEA/NEA v. Howell Bd. of Ed., 789 N.W.2d 495, 502 (Mich. Ct. App. 2010) quoted it with approval in its finding that certain emails sent by public school teachers were personal communications not subject to FOIA. In Howell, the court held that “unofficial private writings belonging solely to an individual should not be subject to public disclosure merely because that individual is a state employee.” Id. at 500. While recognizing the broad scope of FOIA and the public policy of full disclosure, the court stated it was “unwilling to judicially convert every e-mail ever sent or received by public body employees,” from their official account “into a public record subject to FOIA.” Id. While emails like the ones at issue can become business records, “it is their subsequent use or retention in the performance of an official function that render[s] them so.” Id. (internal quotation omitted).

Were this to be litigated, DB would have a compelling argument that the emails sent to his work account were not public records but were the rants of pissed off fans which he did not consider when he performed his work. In fact, in Longer Exchange 1, he states that his “job description doesn’t include having to be a punching bag for people who can’t handle their disappointment or frustration.” He (certainly unintentionally) helped his case right there by stating even then he didn’t believe what he was doing was part of his job, meaning the email wouldn’t be a public record.

Of course, not all of his emails could be “personal” and if the wholesale deletion alleged by one of his secretaries is true, that would be an obvious issue. But we don’t have any confirmation of that. In fact, the fact that they’re attempting to charge Brian a fair amount of money for records of his emails indicates that many emails still exist, which cuts against any claim that he deletes allof his emails

To be clear, I’m not saying it’s a slam-dunk for DB to argue this. It’s a close call. But questioning Baloo’s credentials merely because s/he disagrees with your analysis is a bit of a low blow considering it’s a closer legal issue than you’re making it out to be.