909 N.W.2d 282
Mich. Ct. App.2017Background
- MLive (Grand Rapids Press) submitted FOIA requests seeking recordings, copies, and transcripts of police phone calls made to a Grand Rapids Police Department non‑recorded line (3407) concerning a former Kent County Assistant Prosecutor.
- The City denied the FOIA requests, asserting its ability to release the recordings was the subject of pending federal litigation about whether the recordings violated federal and Michigan eavesdropping/wiretapping laws.
- The City had brought a declaratory action in federal court to determine whether disclosure or use of the recordings would violate the Federal Wiretapping Act or Michigan eavesdropping statutes; officers argued disclosure would be unlawful if the recordings were intentionally intercepted.
- MLive sued in state court for release of the recordings and moved for summary disposition under MCR 2.116(C)(10); the trial court denied the motion and dismissed without prejudice, invoking comity (deferring to the federal court).
- The Court of Appeals held the City failed to meet its FOIA burden to show an exemption applied, the trial court abused its discretion by abstaining on comity grounds, and reversed — ordering production and assessment of fees and possible punitive damages on remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the City validly invoked FOIA exemption MCL 15.243(1)(d) (statutory prohibition) to deny access to recordings | MLive: No exemption applies; City must disclose recordings under FOIA | City: Disclosure is barred because federal/mich eavesdropping law may prohibit release; federal court is resolving that question | Held: City did not meet its burden. It never argued the recordings were intentionally intercepted or that statutes prohibited disclosure, so MCL 15.243(1)(d) does not apply; FOIA disclosure required |
| Whether trial court properly abstained under comity/forum non conveniens while federal action was pending | MLive: State court should decide FOIA claim; City made no statutory‑violation argument so comity was improper | City: Defer to federal court’s factual determination about intentional interception and legality of disclosure | Held: Trial court abused discretion by reframing the issue and deferring; comity unnecessary because the dispositive FOIA exemption issue was within state court competence |
| Whether the order denying summary disposition and dismissing without prejudice was appealable as a final order | MLive: Order disposed of its only claim and is final | City: Not a final order | Held: Order was final for purposes of appeal because it disposed of MLive’s only claim |
| Remedies if disclosure required | MLive: Entitled to production, attorneys’ fees, costs, and possible punitive damages | City: (implicit) opposing immediate relief pending federal litigation | Held: Remanded for entry of judgment ordering production and awarding reasonable attorneys’ fees, costs, and consideration of punitive damages |
Key Cases Cited
- Rataj v. City of Romulus, 306 Mich. App. 735 (interpretation of FOIA exemptions; review de novo)
- Maiden v. Rozwood, 461 Mich. 109 (motion for summary disposition standard)
- Detroit News, Inc. v. Policemen & Firemen Retirement Sys. of the City of Detroit, 252 Mich. App. 59 (FOIA exemptions construed narrowly; statutory‑exemption analysis)
- Hare v. Starr Commonwealth Corp., 291 Mich. App. 206 (abuse of discretion standard for abstention/forum non conveniens)
- Wilson v. Eaton Rapids, 196 Mich. App. 671 (prevailing requester entitled to fees when suit was necessary to obtain access)