Freedom of Information Committee
Cases 2000-2002 summarized
YEAR 2002 CASES
Ferndale City Council, 253
Mich. App. 115, 654 NW2d 918 (2002).
Michael Kitchen, the Ferndale Police Chief,
and several other officers sued the mayor and city council of Ferndale
under the OMA. The mayor had gone into a closed session and taken
the minutes by turning on a tape recorder. He took the tape home
with him, probably for safekeeping, and later sent a copy to the city's
lawyer. The plaintiffs sued to force the mayor to turn in the
tape to the city clerk as the minutes of the meeting, and asked for
attorney fees of almost $10,000.
The Court of Appeals decided the OMA had,
indeed, been violated because the minutes were not turned in to the
clerk. The tape was the same thing as the minutes because it was
the only official record of the closed meeting.
As for the attorney fees, the Appeals Court
ruled that the plaintiffs were entitled to some compensation in this
regard. "Costs and fees are mandatory under the OMA when the
plaintiff obtains relief in an action brought under the act," the court
wrote. Plaintiffs need only succeed in obtaining relief in an
action to qualify for court costs and attorney fees, the court added.
v. Dickinson County Library Board. Unpublished, June 14,
2002. Michigan Court of Appeals Case No. 235062.
The plaintiff, Philip Solom, sued the library board in his county along
with several library officials, alleging they conducted secret
personnel interviews by telephone in violation of OMA. The trial court
ruled against the plaintiff. According to the Appeals Court, the
telephone interviews were indeed a violation of OMA. The library
board claimed it was okay to have a personnel committee, consisting of
less than a quorum, asking prepared questions of job candidates while
tape recording the conversations.
The Appeals Court disagreed, pointing out that the
taped conversations should have been played at a public meeting.
The plaintiff also alleged the board had held a secret meeting in
violation of OMA, because after a meeting ended, a quorum of members
held a conversation about a guest speaker they might invite. The
Appeals Court ruled against the plaintiff on that issue, since the
board did not deliberate or render a decision. The court cited Ryant
v. Cleveland Twp, 239 Mich App 430, 608 NW 2d 101 (2000) in
support of this.
City of Oak Park. May
14, 2002, Michigan Court of Appeals. For publication.
David Sutton, plaintiff, was hanging around at Sabrina Finley's home,
even after she asked him to leave. She called the police. Oak
Park Police Officer Bernard Anderson told Sutton to stay away from
Sabrina because he was harassing her and could be arrested for
trespassing. Sutton filed a citizen's complaint against Officer
Anderson, but was told later that there was no evidence of misconduct
by the officer. Sutten then filed a FOIA request for records of
the internal investigation of Anderson. He was refused on the
grounds the records are exempt as invasion of personal privacy and part
of a police investigation. Next, Sutton sued in the Oakland
Circuit Court pursuant to FOIA. The judge ordered Oak Park to produce
the complete investigative file, but denied punitive damages. The
Court of Appeals sided with Oak Park, relying on exemption (s)
concerning the public interest. This exemption refers to
personnel records of a law enforcement agency. The Appeals Court
paid attention to an affidavit from an Oak Park official indicating
that future investigations will be hampered if employees know their
statements could be subject to FOIA.
News v. County of Wayne. Unpublished, Court of Appeals,
March 15, 2002. Case No. 235831.
The newspaper asked Wayne County for information about the names, job
titles, and pay rates for all its employees, including their expense
accounts and county vehicles. The County refused, saying the
Civil Service Act provides that "employees' records shall be
confidential and not open for public inspection." MCL
38.412(g). The Court of Appeals stated that salaries of
public employees are subject to FOIA, regardless what the Civil Service
Act provides for.
Investment, LLC v. Mich. Dept. of Management and Budget. Unpublished opinion, October 25,
The DMB tried to argue that their records were "personal notes" and
that the DMB had no duty to find the records.
The court disagreed: "Here, even if the requested records were
not retained by the DMB, the DMB was still under a duty to conduct a
reasonable search to request and locate the records," the court wrote.
"When a public body refuses to provide a requested record under the
FOIA, that public body has the burden of proving that its refusal was
justified," the court concluded. The DMB could not escape its
duty to produce the documents just by saying the papers were kept
outside its office.
Free Press v. City of Warren. February 26, 2002.
Published. Court of Appeals.
Free Press asked for bills and invoices of legal services provided by
City of Warren for city officials who had been called before a federal
grand jury or had met with agents of the FBI. Warren provided
copes but redacted (removed) the names of the employees, claiming the
names were covered by the privacy exemption, MCL 15.243(1)(a).
The trial court agreed with the City of Warren that the names were
private. However, the Court of Appeals disagreed. The names
requested were of city officials and employees, not private
citizens. This is information of legitimate public concern, the
court ruled. In a dissenting opinion, K. F. Kelly argued that
disclosure of the names would be an unjustifiable invasion of privacy
against the city officials. Being called before a grand jury or FBI
suggests the possibility of involvement in criminal activities, which
would be embarrassing. Also, it is possible that the grand jury
or FBI investigations had to do with non-public business.
Carr v. City of Ann Arbor and
Michigan Court of
Appeals, unpublished, Dec. 14, 2001. From Washtenaw Circuit Court.
Sprint filed an application with Ann Arbor to build a cellular tower on
land belonging to the Ann Arbor school district. The city issued
a building permit. Mr. and Mrs. Carr objected to the permit by
filing a petition with the Ann Arbor Zoning Board of Appeals
(ZBA). The ZBA denied the Carr's petition. The Carr's filed
a FOIA request with the City of Ann Arbor seeking disclosure of the
communication from the city attorney to the ZBA. The city
refused, on the grounds it was attorney-client privilege and exempt,
MCL 15.243(1)(h). The trial court sided with the City of Ann
Arbor. On appeal, the Court of Appeals affirmed. A city is
authorized to create a ZBA. The ZBA makes administrative
decisions, and if a party wishes to appeal, they can go to circuit
court. The City of Ann Arbor was not a party to this case-- the
parties were Spring, the school district, and the Carr's. The
city attorney is authorized to represent the ZBA. Since the city
attorney is also the ZBA attorney, communications by the city attorney
to the ZBA are not subject to disclosure under FOIA.
Baker v. City of Westland. Court of Appeals. Published. March
Plaintiff, an attorney, filed a FOIA request in Westland for
names, addresses, injury codes, and accident dates of all injured or
deceased accident victims involved in car accidents and who were not at
fault. The city refused on the grounds of privacy, MCL 15.243(1)(a).
Baker took the matter to Circuit Court, where he was again denied. The
Circuit Judge felt the information requested was personal, the public
interest in disclosure was weak, and the privacy exemption
applied. The Court of Appeals ruled in favor of Westland.
It relied on Mager v. State Police, 460 Mich 134, 595 NW2d 142
(1999). Being in a car crash is embarrassing. This is true even for
dead people. The only dead people subject to FOIA are public
officials, as in Swikard v. Wayne County Medical Examiner, 438
Mich 536; 475 NW2d 304 (1991).
Free Press v. Michigan Dept. of Consumer and Industry Services
Government may release information about homeowners and car owners who
complained about their property insurance companies, but the name and
each consumer has to be redacted for privacy reasons. Freep
and addresses, plus information about what the government did to
YEAR 2000 CASES
Publications v Lansing (Court of Appeals, November 14, 2000,
Although internal investigation records are law enforcement personnel
records, they are not exempt unless public body meets its burden of
"that the public interest in nondisclosure outweighed the public
Free Press v State Police (Court of Appeals, November 3, 2000,
Records of concealed weapon permits issued to legislators come within
personal privacy exemption.
County Deputy Sheriff Association v Kent County Sheriff (Michigan
Court, September 19, 2000)
Decision based only on application for leave to appeal. Internal
in police department is exempt as a law enforcement "personnel record."
v Leona Group (Court of Appeals, August 4, 2000 unpublished)
Private corporation was properly joined as a defendant in a FOIA suit
when it possessed public documents pursuant to contract with a public
"A public body cannot so easily evade the FOIA."
Herald Company v City of Bay City (Michigan Supreme Court, July 27,
FOIA request was not inadequate because it requested information rather
than records. Disclosure of names and addresses of applicants for
office would not be an unwarranted invasion of personal privacy. A city
manager is not a public body whose decisions process is subject to OMA.
Audit Services, Inc. v Department of State Police (Court of Appeals,
23, 2000) unpublished.
Disclosure of accidents reports is an invasion of personal privacy.
Disclosure is not warranted because information does not go to core
Press v City of Pontiac (Court of Appeals, May 19, 2000) unpublished
Portion of collection bargaining agreement that conflicts with FOIA
v Department of Consumer and Industry Services (Court of Appeals, March
31, 2000) unpublished
Memorandum for Attorney General covered by intra-agency exclusion.
v Allendale Township (Michigan Court of Appeals, February 29, 2000)
FOIA request found to be sufficiently specific, but appeal determined
to be moot.
v Meridian Township (Michigan Court of Appeals, Janauary 28, 2000)
Where township, in proper public meeting, readopted action taken in
illegal closed meeting, injunction was not warranted. However, because
court declared closed meeting illegal, Plaintiff was entitled to an
of actual attorney fees.
v Alaiedon Township (Michigan Court of Appeals, January 14, 2000)
The township readopted matter previously approved in violation of OMA.
Plaintiff was entitled to neither injunctive relief nor attorneys fees
because it was not a prevailing party. Unlike the Holman case, there
no declaratory judgment of an OMA violation. Unlike Holman, this case
not binding precent since it will not be published.
v Cleveland Township (Michigan Court of Appeals, 2000)
Township supervisor addressed planning commission in a closed session.
No OMA violation because there was no deliberation toward a decision.
Summaries of cases