859 N.W.2d 674
Mich.2014Background
- Plaintiff James Amberg (an attorney) requested copies of video surveillance recordings from the City of Dearborn under Michigan FOIA relating to a pending misdemeanor against his client.
- The videos were created by private businesses (Tim Hortons and Wendy’s) and provided to Dearborn Police during the criminal matter.
- Defendants refused to disclose, arguing the recordings were not "public records" under FOIA because they were created by private parties and (they contended) not possessed/retained by the city in the performance of an official function from their creation.
- After Amberg sued, defendants produced the recordings and moved for summary disposition; the trial court granted summary disposition for defendants.
- The Court of Appeals affirmed. The Michigan Supreme Court granted relief in lieu of leave, reversed the Court of Appeals, and remanded for further proceedings (including consideration of attorney fees/costs).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether videos created by private entities but received and retained by police are "public records" under FOIA (MCL 15.232(e)) | Amberg: Videos are "writings" possessed/retained by a public body in performance of an official function and thus are public records subject to FOIA | Dearborn: Recordings created by private parties and obtained after citation issuance are not public records because they were not in possession/retention "in the performance of an official function, from the time [they were] created" | Court: Recordings are public records — police received them as evidence in a pending misdemeanor and retained/used them in an official function, so FOIA applies |
| Whether creation by a private party insulates a record from FOIA | Amberg: Creation by a private entity does not exempt a document that a public body possesses/retains for official purposes | Dearborn: Emphasizes private creation and timing of acquisition to argue nonapplicability | Court: Private creation does not insulate records; FOIA applies where public body possesses/retains the record in performance of official functions |
| Relevance of timing (whether recordings were obtained before issuance of citation) | Amberg: Timing of acquisition is irrelevant if recordings were retained/used by police in the official matter | Dearborn: Because recordings were obtained after citation was issued, they did not influence the official act and so are not public records | Court: Timing alone is not dispositive; recordings were collected as evidence in the pending matter and were in police possession/retention for an official purpose |
| Entitlement to attorney fees and costs under MCL 15.240(6) after defendants voluntarily produced records | Amberg: He sought fees/costs and did not abandon that claim; even if records were released, a prevailing FOIA plaintiff may recover if action was reasonably necessary and causally significant | Dearborn: Argued plaintiff abandoned fees claim; voluntary production moots fee entitlement | Court: Plaintiff did not abandon fee claim; remand for circuit court to consider, on proper motion, whether Amberg prevailed under MCL 15.240(6) and is entitled to fees/costs |
Key Cases Cited
- Coblentz v. City of Novi, 475 Mich. 558 (discusses that FOIA requests must be fulfilled unless a specific statutory exemption applies)
- Detroit News, Inc. v. Detroit, 204 Mich. App. 720 (clarifies that a record can become a public record after its creation and that FOIA applies to records possessed/retained by a public body)
- Scharret v. City of Berkley, 249 Mich. App. 405 (defines "prevail" for FOIA fee recovery: action must be reasonably necessary and have a substantial causative effect)
- Thomas v. New Baltimore, 254 Mich. App. 196 (voluntary disclosure after suit does not necessarily defeat entitlement to fees/costs under FOIA)