Amberg v. City of Dearborn

Memorandum Opinion. We consider in this case whether copies of video surveillance recordings created by third parties but received by defendants during the course of pending criminal misdemeanor proceedings constitute “public records” within the meaning of the *30 Freedom of Information Act (FOIA), MCL 15.231 et seq., thus requiring their disclosure by defendants. For the reasons stated in this opinion, we conclude that, contrary to the lower courts’ opinions, the video surveillance recordings are public records within the meaning of FOIA. Accordingly, and in lieu of granting leave to appeal, we reverse the judgment of the Court of Appeals and remand this case to the Wayne Circuit Court for further proceedings consistent with this opinion.

The purpose of FOIA is to provide to the people of Michigan “full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and public employees,” thereby allowing them to “fully participate in the democratic process.” MCL 15.231(2). As a result, except under certain specifically delineated exceptions, see MCL 15.243, a person who “provid[es] a public body’s FOIA coordinator with a written request that describes a public record sufficiently to enable the public body to find the public record” is entitled “to inspect, copy, or receive copies of the requested public record of the public body.” MCL 15.233(1). See also Coblentz v City of Novi, 475 Mich 558, 573; 719 NW2d 73 (2006) (“A FOIA request must be fulfilled unless MCL 15.243 lists an applicable specific exemption.”). The FOIA further defines “public record” as “a writing prepared, owned, used, in the possession of, or retained by a public body in the performance of an official function, from the time it is created. . . .” MCL 15.232(e). “Writing,” in turn, is defined broadly to include any “means of recording,” including “pictures” and “sounds ... or combinations thereof. . . .” MCL 15.232(h).

In this case, plaintiff initiated a FOIA request, and ultimately this FOIA lawsuit, to receive materials related to pending criminal proceedings that were in *31 defendants’ possession, including video surveillance recordings created by private businesses. Defendants assert that the surveillance recordings are not public records within the meaning of FOIA and, as a result, did not need to be disclosed to plaintiff under MCL 15.233(1). The Wayne Circuit Court agreed with defendants and granted summary disposition in their favor. Plaintiff appealed by right, and the Court of Appeals affirmed in a split decision. Amberg v Dearborn, unpublished opinion per curiam of the Court of Appeals, issued March 25, 2014 (Docket No. 311722).

The parties do not dispute that video recordings are “writings” within the meaning of FOIA. Nor do they dispute that these particular video surveillance recordings are “in the possession of” and “retained by” defendants, both of which are public bodies. What is in dispute is whether the recordings were in the possession of or retained by defendants “in the performance of an official function, from the time [they were] created.” MCL 15.232(e). 1 This requirement makes clear that the mere possession of the recordings by defendants is not sufficient to make them public records. Detroit News, Inc v Detroit, 204 Mich App 720, 724-725; 516 NW2d 151 (1994). However, because FOIA “does not require that the record[s] be created by the public body,” that the recordings were created by private entities does not necessarily insulate the records from FOIA. Id. at 724.

*32 In short, what ultimately determines whether records in the possession of a public body are public records within the meaning of FOIA is whether the public body prepared, owned, used, possessed, or retained them in the performance of an official function. On this question, we agree with the dissenting Court of Appeals judge that the recordings at issue in this case were public records because they were in the possession of or retained by defendants “in the performance of an official function, from the time [they were] created.” MCL 15.232(e). The undisputed facts show that defendants received copies of the recordings as relevant evidence in a pending misdemeanor criminal matter. 2 The Court of Appeals majority claimed that the defendants did not use the recordings in the performance of an official function—specifically, their issuance of a criminal misdemeanor citation—because they did not obtain the recordings until after they issued the citation. While this may be true, the citation nevertheless remained pending when defendants received the recordings, and the issuance of the citation is not the only .official function that we must consider. In other words, even if the recordings did not factor into defendants’ decision to issue a citation, they were nevertheless collected as evidence by defendants to support that decision. Indeed, that the relevant police file (which was disclosed to plaintiff) referred to the recordings (and to how defendants acquired them) underscores defendants’ official purpose in acquiring them. As a result, *33 the recordings are public records within the meaning of FOIA, and defendants were required to produce them in response to plaintiffs FOIA request. 3 The circuit court, therefore, erred when it granted defendants’ motion for summary disposition.

Defendants also claim that this case has been rendered moot by their eventual release of the recordings to plaintiff. However, “[t]he mere fact that plaintiffs substantive claim under the FOIA was rendered moot by disclosure of the records after plaintiff commenced the circuit court action is not determinative of plaintiffs entitlement to fees and costs under MCL 15.240(6).” Thomas v New Baltimore, 254 Mich App 196, 202; 657 NW2d 530 (2002). 4 MCL 15.240(6) allows a plaintiff to recover “reasonable attorneys’ fees, costs, *34 and disbursements” in the event “a person asserting the right to . . . receive a copy of all or a portion of a public record prevails” in a FOIA action. To “prevail” in a FOIA action within the meaning of MCL 15.240(6), a court must conclude that “the action was reasonably necessary to compel the disclosure [of public records], and [that] the action had a substantial causative effect on the delivery of the information to the plaintiff.” Scharret v City of Berkley, 249 Mich App 405, 414; 642 NW2d 685 (2002) (emphasis omitted).

The Court of Appeals unanimously agreed that plaintiff is precluded from recovering under MCL 15.240(6) for allegedly abandoning those claims. Contrary to the Court of Appeals’ assertion, however, plaintiff never abandoned his claim for fees and costs under MCL 15.240(6). Indeed, he sought fees and costs in his complaint, in his brief in opposition to defendants’ motion for summary disposition, in his brief in the Court of Appeals, and in his application for leave to appeal in this Court. Now that this Court orders defendants’ motion for summary disposition to be denied, plaintiffs action can proceed in the Wayne Circuit Court for consideration, on a proper motion, of whether he is entitled to costs and fees under MCL 15.240(6). 5

*35 We therefore reverse the judgments of the lower courts and remand this case to the Wayne Circuit Court for entry of an order denying defendants’ motion for summary disposition and for further proceedings not inconsistent with this opinion, including, on a proper motion, a determination whether plaintiff is entitled to reasonable attorney fees, costs, and disbursements under MCL 15.240(6). In all other respects, leave to appeal is denied, because we are not persuaded that the remaining questions presented should be reviewed by this Court.