Blackwell v. City of Livonia

339 Mich.App. 495

984 N.W.2d 780

Charles BLACKWELL, Plaintiff-Appellant,

v.CITY OF LIVONIA, Defendant-Appellee.

No. 357469

Court of Appeals of Michigan.

Submitted December 10, 2021, at Detroit.

Decided December 16, 2021, 9:05 a.m.

Charles Blackwell in propria persona.

Paul A. Bernier, Detroit, Michael E. Fisher, and Eric S. Goldstein, Troy, for the city of Livonia.

Before: K. F. Kelly, P.J., and Jansen and Rick, JJ.

Per Curiam

Plaintiff appeals as of right the trial court's order denying plaintiff's motion for summary disposition under MCR 2.116(C)(9) and MCR 2.116(C)(10) and granting summary disposition in favor of defendant under MCR 2.116(I)(2). In this case brought under the Freedom of Information Act (FOIA), MCL 15.231 et seq. , plaintiff sought production of inbox communications sent to a private social media account of Mayor Maureen Miller Brosnan. The trial court determined the communications were not subject to disclosure under FOIA because the social media account was not prepared, owned, used, in the possession of, or retained by defendant and, thus, were not public records. Because there was no error warranting reversal, we affirm.

I. BASIC FACTS AND PROCEDURAL HISTORY

On February 22, 2021, plaintiff submitted a FOIA request to various individuals in Livonia city government seeking "inbox messages" sent to the Facebook profile entitled "Livonia Mayor Maureen Miller Brosnan." On March 1, 2021, defendant denied plaintiff's FOIA request, explaining: "No City resources were used to create or operate the page, and the City's [Information Technology] Department has no control over the page. The page in question is used for the Mayor's political campaign purposes, and not to conduct City business." Upon receipt of the denial letter, plaintiff again wrote to individuals within Livonia city government, stating any appeal to the mayor would be "futile" and asking instead if Livonia "would be willing to overturn it's [sic] denial and produce the requested inbox messages." Michael E. Fisher, Livonia's Chief Assistant City Attorney, responded to plaintiff that the requested records were "not available to the City for review or disclosure and do[ ] not meet the definition of ‘public record’ in MCL 15.232."

On March 2, 2021, plaintiff filed a single-count complaint seeking to compel the production of inbox messages sent to the Facebook profile. In the complaint, plaintiff alleged that Mayor Brosnan used the Facebook profile to disseminate information about her official activities as mayor, such as presiding over a swearing-in ceremony for new firefighters. Plaintiff also alleged Mayor Brosnan used the Facebook profile to communicate directly with constituents who were seeking to contact the mayor's office. Thus, according to plaintiff, the Facebook profile was not strictly used for campaign purposes, and the writings he sought were public records as defined by MCL 15.232.

On March 26, 2021, plaintiff filed a motion for summary disposition under MCR 2.116(C)(9) and (10). Plaintiff argued Mayor Brosnan was operating the Facebook profile in furtherance of her official duties by posting about city business, rendering the messages "public records" under FOIA. In the motion, plaintiff appended screenshots taken from the Facebook profile, which showed that Mayor Brosnan had posted articles about defendant's efforts to abate COVID-19 and the number of mental health calls the Livonia Police Department received each month. On the basis of this evidence, plaintiff claimed the screenshots demonstrated that Mayor Brosnan used the Facebook profile for official purposes. Relying on Bisio v. Village of Clarkston , 506 Mich. 37, 954 N.W.2d 95 (2020), plaintiff asserted that the mayor's office was a "public body" as defined by FOIA, making the Facebook messages "public records" subject to disclosure.

In response, defendant averred that any direct messages sent to the Facebook profile were not subject to disclosure as public records under FOIA because they were not prepared, owned, used, in the possession of, or retained by a public body in the performance of an official function. Defendant submitted affidavits of Livonia Information Systems Director Casey O'Neil and Livonia Mayoral Chief of Staff Dave Varga, both of whom attested that the Facebook profile was "not part of the City of Livonia's operations or on-line presence." They both also stated the Facebook profile was not "available for official use by the City of Livonia or the Office of the Mayor, nor has it been so used." Thus, defendant argued the Facebook messages were not subject to disclosure because they were not "public records," since they were not in defendant's possession and not created or used in furtherance of official business.

After a hearing, the trial court entered an order denying plaintiff's motion for summary disposition and granting summary disposition in favor of defendant under MCR 2.116(I)(2). The trial court reasoned that plaintiff failed to allege or demonstrate that the Facebook profile was "prepared, owned, used, possessed or retained in the performance of an official function," and the Facebook profile was "in the possession of [ ] candidate Maureen Brosnan and not even in her performance of an official function." Citing Hopkins v. Duncan Twp , 294 Mich.App. 401, 812 N.W.2d 27 (2011), the trial court explained that the fact that a document is in the possession of a public body, standing alone, does not render the document a "public record" under FOIA. Instead, the trial court found the Facebook profile was used "for political purposes" and, therefore, not a public record. This appeal followed.

II. STANDARD OF REVIEW

This Court reviews de novo a trial court's decision on a motion for summary disposition. Buckmaster v. Dep't of State , 327 Mich.App. 469, 475, 934 N.W.2d 59 (2019).¹ "A motion for summary disposition pursuant to MCR 2.116(C)(10) tests the factual sufficiency of a complaint." MLive Media Group v. Grand Rapids , 321 Mich.App. 263, 269, 909 N.W.2d 282 (2017). When considering a motion under MCR 2.116(C)(10), the trial court must consider all evidence submitted by the parties in the light most favorable to the party opposing the motion. Id. "A trial court must grant the motion if it finds ‘no genuine issue as to any material fact’ and determines that ‘the moving party is entitled to judgment or partial judgment as a matter of law.’ " Id. , quoting MCR 2.116(C)(10). "[S]ummary disposition is proper under MCR 2.116(I)(2) if the court determines that the opposing party, rather than the moving party, is entitled to judgment as a matter of law." Rataj v. Romulus , 306 Mich.App. 735, 747, 858 N.W.2d 116 (2014) (quotation marks and citation omitted).

Legal determinations made in the context of a FOIA proceeding are reviewed de novo. Hopkins , 294 Mich.App. at 408, 812 N.W.2d 27 (citation omitted). This Court also reviews de novo questions of statutory interpretation. Buckmaster , 327 Mich.App. at 475, 934 N.W.2d 59. The Court's primary goal of statutory interpretation is to give effect to the Legislature's intent. Id. If the statute's language is clear and unambiguous, this Court must give the words their plain and ordinary meaning, and judicial construction of the statute is not permitted. Id.

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). Accordingly, except under certain exceptions specifically delineated in 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.’ " Id. , quoting MCL 15.233(1) (alteration in original).

The term "public body" is defined under MCL 15.232(h) as any of the following categories:

(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.

Additionally, the term "public record" is defined under MCL 15.232(i) 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."

"[W]hat 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." Amberg , 497 Mich. at 32, 859 N.W.2d 674. "In the event a FOIA request is denied and the requesting party commences a circuit court action to compel disclosure of a public record, the public body bears the burden of sustaining its decision to withhold the requested record from disclosure." Mich. Federation of Teachers & Sch. Related Personnel, AFT, AFL-CIO v....