Bisio v. City of the Vill. of Clarkston

506 Mich. 37

954 N.W.2d 95

Susan BISIO, Plaintiff-Appellant,

v.The CITY OF the VILLAGE OF CLARKSTON, Defendant-Appellee.

Docket No. 158240

Calendar No. 4

Supreme Court of Michigan.

Argued March 5, 2020

Decided July 24, 2020

Markman, J.

This case concerns the definition of "public record" set forth in MCL 15.232(i) of the Freedom of Information Act (FOIA), MCL 15.231 et seq. This definition provides that "public record," as used within the act, means "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." Here, plaintiff Susan Bisio sent a FOIA request to defendant seeking documents pertaining to city business. Defendant, through its city attorney, denied the request with respect to certain documents contained in the files of the city attorney, reasoning that the city attorney did not constitute a "public body" for purposes of MCL 15.232(i) and therefore that the requested documents were not "public records" subject to disclosure under FOIA. Both the trial court and the Court of Appeals upheld the denial. For the reasons set forth herein, we conclude that those documents do satisfy the statutory definition of "public records." Because the Court of Appeals concluded to the contrary, we respectfully reverse its judgment and remand to the trial court for further proceedings consistent with this opinion.

I. FACTS & PROCEEDINGS

In June 2015, plaintiff filed a FOIA request with defendant seeking, in pertinent part, correspondence between its city attorney, Thomas J. Ryan, and a consulting firm concerning a development project and vacant property within the city. Defendant denied the request with respect to documents contained within the city attorney's file, and the city attorney explained his reasoning to plaintiff in an October 2015 letter:

[ MCL 15.232(i) ] states: "Public record" means 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.^{[1 ]} The basis for the denial was, in my opinion as city attorney, [that] I am not a "public body". Thus, the information sought was neither created nor obtained by a public body, i.e. The City of the Village of Clarkston and thus was not a public record.... Thus, the very touchstone of a request for a "public record" by a "public body," your information requested was never received or in the possession of the public body, i.e. The City of the Village of Clarkston ....

In December 2015, plaintiff sued defendant for an alleged FOIA violation with respect to the requested documents in an effort to compel their disclosure. The parties filed competing motions for summary disposition; plaintiff argued that the documents constituted "public records" under MCL 15.232(i), while defendant argued to the contrary.² The trial court ultimately granted summary disposition in favor of defendant and denied plaintiff's motion for summary disposition as moot. In addressing this matter, the trial court agreed with plaintiff that "[i]t is sufficient ... for a document to be considered a ‘public record’ if a public body's agent (such as a public body's attorney) prepared, owned, used, possessed, or retained documentation in the performance of an official function." The trial court then framed the issue as whether "defendant used the contested records (the actual correspondence) as a basis for its decision or merely used Attorney Ryan's advice or oral report for a decision." The trial court continued:

Having reviewed the documentary evidence, this Court finds that the contested records are not "public records" because there is no evidence to support that defendant used or retained them in the performance of an official function or that Attorney Ryan shared the contested records (the actual correspondence) to assist defendant in making a decision. Summary disposition pursuant to MCR 2.116(C)(10) is, therefore, appropriate.

Plaintiff appealed and the Court of Appeals unanimously affirmed on somewhat different grounds. Bisio v. City of the Village of Clarkson , unpublished per curiam opinion of the Court of Appeals, issued July 3, 2018 (Docket No. 335422) 2018 WL 3244117. The Court observed that under FOIA, only "public records" are subject to disclosure, and it noted that a "public record" is defined 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.’ " Id. at 4, quoting what is now MCL 15.232(i) (emphasis added). The Court reasoned that the statute's definition of "public body," now set forth in MCL 15.232(h), does not encompass an agent of a public body. Bisio , unpub. op. at 5. Therefore, the Court concluded that because the city attorney was merely an agent of the defendant public body and not himself a "public body," the documents at issue in his possession were not "public records" properly subject to disclosure. Id. at 5-6.

Plaintiff next sought leave to appeal in this Court, which we granted, directing the parties to address the following two issues:

(1) whether the Court of Appeals erred in holding that the documents sought by the plaintiff were not within the definition of "public record" in § 2(i) of the Freedom of Information Act (FOIA), MCL 15.231 et seq. ; and (2) whether the defendant city's charter-appointed attorney was an agent of the city such that his correspondence with third parties, which were never shared with the city or in the city's possession, were public records subject to the FOIA, see Breighner v. Michigan High Sch. Athletic Ass'n , 471 Mich. 217, 233 nn. 6 & 7 [683 N.W.2d 639] (2004) ; Hoffman v. Bay City School Dist. , 137 Mich. App. 333 [357 N.W.2d 686] (1984). [ Bisio v. City of the Village of Clarkston , 504 Mich. 966, 933 N.W.2d 36 (2019).]

II. STANDARD OF REVIEW

"This Court reviews de novo the trial court's decision to grant a motion for summary disposition." Mich. Federation of Teachers & Sch. Related Personnel v. Univ. of Mich. , 481 Mich. 657, 664, 753 N.W.2d 28 (2008). "This Court [also] reviews de novo as a question of law issues of statutory interpretation." State News v. Mich. State Univ. , 481 Mich. 692, 699, 753 N.W.2d 20 (2008). "We give effect to the Legislature's intent as expressed in the language of the statute by interpreting the words, phrases, and clauses according to their plain meaning." Id. at 699-700, 753 N.W.2d 20.

III. ANALYSIS

"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.’ " Amberg v. Dearborn , 497 Mich. 28, 30, 859 N.W.2d 674 (2014), quoting 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.’ " Amberg , 497 Mich. at 30, 859 N.W.2d 674, quoting MCL 15.233(1).

MCL 15.232(i) defines "public record" as follows:

"Public record" means 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. Public record does not include computer software. This act separates public records into the following 2 classes:

(i ) Those that are exempt from disclosure under [ MCL 15.243 ].

(ii ) All public records that are not exempt from disclosure under [ MCL 15.243 ] and that are subject to disclosure under this act.^[3]

And MCL 15.232(h) defines "public body" as follows:

"Public body" means any of the following:

(i ) A state officer, employee, agency, department, division, bureau, board, commission, council, authority, or other body in the executive branch of the state government, but does not include the governor or lieutenant governor, the executive office of the governor or lieutenant governor, or employees thereof.

(ii ) An agency, board, commission, or council in the legislative branch of the state government.

(iii ) A county, city, township, village, intercounty, intercity, or regional governing body, council, school district, special district, or municipal corporation, or a board, department, commission, council, or agency thereof.

(iv ) Any other body that is created by state or local authority or is primarily funded by or through state or local authority, except that the judiciary, including the office of the county clerk and its employees when acting in the capacity of clerk to the circuit court, is not included in the definition of public body.^[4]

"In short, what ultimately determines whether records ... 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." Amberg , 497 Mich. at 32, 859 N.W.2d 674.⁵

The parties here do not dispute that the documents at issue are "writing[s]" or that the documents were "prepared, owned, used, in the possession of, or retained" by the city attorney under MCL 15.232(i). The crux of the dispute is simply whether the documents may be deemed "prepared, owned, used, in the possession of, or retained" by a "public body " for the purposes of MCL 15.232(i).⁶ To resolve this dispute, we must consider the definition of "public body" set forth in MCL 15.232(h).

In doing so, we initially note that MCL 15.232(h) defines the term "public body" in a somewhat unorthodox fashion. As we recognized in Herald Co. v. Bay City , 463 Mich. 111, 614 N.W.2d 873 (2000), "the ordinary definition of ‘body’ " includes definitions such as " ‘a group of individuals regarded as an...