FOIA Cases 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Unpublished, June 14, 2002.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.
YEAR 2001 CASES
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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