Michigan Freedom of Information Committee

 FOIA Cases 2000-2002  summarized

YEAR 2002 CASES

Kitchen v. 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.

Solom 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  Unpublished, June 14, 2002.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.

Sutton v. 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.

Detroit 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.

WDG Investment, LLC v. Mich. Dept. of Management and Budget.   Unpublished opinion, October 25, 2002.
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.

Detroit 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 Sprint Spectrum.
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.

Larry S. Baker v. City of Westland.   Court of Appeals. Published. March 13, 2001.
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). 

Detroit Free Press v. Michigan Dept. of Consumer and Industry Services (Mich App June 2001)
Government may release information about homeowners and car owners who complained about their property insurance companies, but the name and address of each consumer has to be redacted for privacy reasons.  Freep wanted names and addresses, plus information about what the government did to investigate each complaint.

YEAR 2000 CASES

Federated Publications v Lansing (Court of Appeals, November 14, 2000, unpublished)
Although internal investigation records are law enforcement personnel records, they are not exempt unless public body meets its burden of proving "that the public interest in nondisclosure outweighed the public interest in disclosure.

Detroit Free Press v State Police (Court of Appeals, November 3, 2000, published)
Records of concealed weapon permits issued to legislators come within personal privacy exemption.

Kent County Deputy Sheriff Association v Kent County Sheriff (Michigan Supreme Court, September 19, 2000)
Decision based only on application for leave to appeal. Internal investigation in police department is exempt as a law enforcement "personnel record."

Bacon 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 school. "A public body cannot so easily evade the FOIA."

The Herald Company v City of Bay City (Michigan Supreme Court, July 27, 2000)
FOIA request was not inadequate because it requested information rather than records. Disclosure of names and addresses of applicants for public 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.

Midwestern Audit Services, Inc. v Department of State Police (Court of Appeals, June 23, 2000) unpublished.
Disclosure of accidents reports is an invasion of personal privacy. Disclosure is not warranted because information does not go to core purpose of FOIA.

Oakland Press v City of Pontiac (Court of Appeals, May 19, 2000) unpublished
Portion of collection bargaining agreement that conflicts with FOIA is invalid.

Barbier v Department of Consumer and Industry Services (Court of Appeals, March 31, 2000) unpublished
Memorandum for Attorney General covered by intra-agency exclusion.

Forner v Allendale Township (Michigan Court of Appeals, February 29, 2000) unpublished
FOIA request found to be sufficiently specific, but appeal determined to be moot.

Holman v Meridian Township (Michigan Court of Appeals, Janauary 28, 2000) published
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 award of actual attorney fees.

Patrick v Alaiedon Township (Michigan Court of Appeals, January 14, 2000) unpublished
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 was no declaratory judgment of an OMA violation. Unlike Holman, this case is not binding precent since it will not be published.

Ryant 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.

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