[nfbmi-talk] case summaries related to foia in michigan

[joe harcz Comcast]

Hello All,

While this is lengthy our collective and individual rights to shed light upon the Michigan Commission for the Blind are in the Freedom of Information Act. Many have seen the responses to Larry that are clearly ludicrous on their face. Millions of dollars are at stake as are numerous programs for people who are blind or those who have other disabilities here in Michigan. Mr. Patrick Cannon in particular has witheld or manipulated public information even from his lap dog board for years. This is intolerable for any federally funded state agency let alone the one that is ours. 

Attached here are summaries of case law on the issue of FOIA from the Michigan Attorney General.

Joe
http://www.michigan.gov/ag/0,1607,7-164-17337_18160-51245--,00.html

AG  Court Opinions on FOIA

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Court Opinions on FOIA

 

Court Opinions

on the

Freedom of Information Act

 

Michigan courts have rendered decisions which, when "reported", become precedent and are the law of the state until changed by a higher court or by the

Legislature. The following list contains decisions of Michigan’s appellate and Supreme courts regarding FOIA. Court opinions may be obtained from law libraries

or from the courts of record at a nominal fee.

 

Herald Co. v Bay City, 228 Mich App 268; NW2d ; 1998 Mich App. LEXIS 55 (February 24, 1998).

 

Information about a person being considered as a finalist for a high level public position is not of a "personal nature" for the purposes of the FOIA privacy

exemption. Once the list of candidates has been narrowed to those persons to be interviewed, the applicant's right of privacy is outweighed by the public's

interest in knowing the applicants' qualifications. Redaction can be used to separate confidential information from non-private information.

 

Bradley v Saranac Community Schools Board of Education, 455 Mich 285; 565 NW2d 650 (1997).

 

The Michigan FOIA does not have a specific exemption for personnel records. Thus, the personnel records of non-law enforcement public employees generally

are available to the public. Information that falls within one of the exemptions of the FOIA may be redacted.

 

The privacy exemption under 13(1)(a) of the FOIA consists of two elements, both of which must be met in order for an exemption to apply. First, the information

must be of a "personal nature." Second, the disclosure must be a "clearly unwarranted invasion of privacy."

 

Performance appraisals, disciplinary actions, and complaints relating to employees' accomplishments in their public jobs do not reveal intimate or embarrassing

details of their private lives and, therefore, they are not records of a "personal nature."

 

Performance evaluations of public employees are not counseling evaluations protected from disclosure by the FOIA, § 13(1)(m).

 

Section 13(1)(n) of the FOIA provides an exemption for communications passing within or between public bodies. Documents in the possession of a school district

prepared by parents are not within the scope of this exemption. Further, the exemption must be asserted by a public body rather than by a private individual.

 

Seaton v Wayne County Prosecutor, 225 Mich App 1; 570 NW2d 125 (1997).

 

A prisoner's request for records pertaining to his own criminal conviction is governed exclusively by court rule, MCR 6.101(L), now MCR 6.433(A). The FOIA

does not apply.

 

Herald Co. v Ann Arbor Public Schools, 224 Mich App 266; 568 NW2d 411 (1997).

 

Once a document that is the subject of a FOIA lawsuit has been disclosed, the subject of the controversy disappears and becomes moot.

 

The privacy exemption of the FOIA allows a public body to withhold from disclosure public records of a personal nature where the information would constitute

a clearly unwarranted invasion of an individual's privacy. Information is considered personal if it concerns a particular person and his intimate affairs,

interests or activities. While the records sought in this case were personal in nature in that they contained information about a teacher's family and

observations about his conduct, the disclosure did not constitute a "clearly unwarranted" invasion of privacy because the records discussed the professional

performance of a teacher in the classroom which is an issue of legitimate concern to the public.

 

A public body may exempt from disclosure, pursuant to section 13(1)(n), advisory communications within a public body or between public bodies to the extent

that they are non-factual and are preliminary to a final agency determination. However, if records meet these substantive tests, the public body must also

establish that the public interest in encouraging frank communications within the public body or between public bodies clearly outweighs the public interest

in disclosure. In this case the public interest in disclosing records that contain public observations of a teacher who has been convicted of carrying

a concealed weapon is not clearly outweighed by the public interest in encouraging frank communications within the public body.

 

A class of documents may be exempt from the FOIA so long as the exempt categories are clearly described and drawn with precision so that all documents within

a category are similar in nature. Exempt material must be segregated from non-exempt material to the extent practicable.

 

The FOIA exempts, in section 13(1)(i), information subject to the physician-patient privilege. The purpose of the privilege is to protect the physician-patient

relationship and ensure that communications between the two are confidential. Attendance records that do not contain any information that a physician acquired

while treating an employee are not covered by this exemption.

 

The fact that an employee waives the physician-patient privilege by submitting to his employer attendance records that contain medical records does not

mean that the privilege was waived with regard to third parties who request disclosure of the records under the FOIA.

 

The FOIA excludes from disclosure information protected by the attorney-client privilege. The scope of the privilege is narrow, including only those communications

by the client to its advisor that are made for the purpose of obtaining legal advice. A tape recording of an interview of the teacher by the school district

is not within the attorney-client privilege.

 

CMU Supervisory-Technical Ass'n MEA/NEA v CMU Board of Trustees, 223 Mich App 727; 567 NW2d 696 (1997).

 

A party to a lawsuit does not lose his right under the FOIA simply because the party may be able to obtain the records from a public body through the discovery

phase of pending civil litigation.

 

Oakland County Prosecutor v Department of Corrections, 222 Mich App 654; 564 NW2d 922 (1997).

 

A prisoner's mental health records submitted to the parole board when seeking parole must be provided to a county prosecutor when requested pursuant to

FOIA so that the prosecutor may determine whether the board's decision to grant parole should be appealed.

 

The records are not exempt from disclosure under the psychologist-patient privilege because the prisoner in seeking parole consents to the release of the

records to the parole board. Once otherwise privileged records are disclosed to a third party by the holder of the privilege, the privilege disappears.

 

The records are not exempt pursuant to a statutory provision protecting records created in the course of providing mental health services because that provision

permits release to "comply with another provision of law" i.e. a prosecutor's request for such records to determine whether to appeal a particular parole.

 

Section 13(1)(m) of the FOIA which exempts psychological evaluations concerning an individual if the disclosure would reveal the identity of the individual

is inapplicable because the identity of the individual is already known.

 

The privacy exemption at section 13(1)(a) of the FOIA is not applicable. Notwithstanding the personal nature of the records sought, the invasion is warranted

because the Legislature has provided for the release of these records in the context of the parole proceedings.

 

Schroeder v Detroit, 221 Mich App 364; 561 NW2d 497 (1997).

 

A person denied employment by a police department was not entitled to receive a copy of his psychological evaluation under the FOIA. In cases involving

testing instruments as defined by section 13(1)(l) of the FOIA, release of the information is not required unless the public interest in disclosure outweighs

the public interest in non-disclosure. Here, the public interest ensuring the integrity of the hiring process outweighed the public interest in disclosing

the information to a candidate attempting to investigate the fairness of the test.

 

Grebner v Oakland County Clerk, 220 Mich App 513; 560 NW2d 351 (1996).

 

Section 10(1) of the FOIA is a combined jurisdiction and venue provision. This provision makes it clear that circuit courts have jurisdiction to hear FOIA

cases and specifies the counties in which the action may be brought.

 

Venue for FOIA actions properly lies in the county where the complainant resides.

 

Nicita v Detroit, 216 Mich App 746; 550 NW2d 269 (1996).

 

Business records pertaining to a real estate development company are not exempt from disclosure pursuant to § 13(1)(a) of the FOIA where there is no indication

that the records contain information of a personal nature. This section does not protect information that could conceivably lead to the revelation of personal

information.

 

Section 13(1)(n) of the FOIA protects communications within or between a public body that are other than purely factual and are preliminary to a final agency

determination of policy or action. A public agency must also show that the need for nondisclosure clearly outweighs the public interest in disclosure.

 

Grebner v Clinton Charter Twp, 216 Mich App 736; 440 NW2d 265 (1996).

 

Section 522(1) of the Michigan Election Law which provides for the making, certifying, and delivery of a computer tape to any person upon the payment to

the clerk of the court of the cost of making, certifying and delivering the tape, disk, or listing is not a statute "specifically authorizing the sale"

of the computer tape. Therefore, the determination of the fee to be charged for obtaining the computer tape is made pursuant to § 4 of the FOIA.

 

Lansing Ass'n of School Adm'rs v Lansing School District, 216 Mich App 79; 549 NW2d 15 (1996).

 

Plaintiffs seeking to prevent a school board from disclosing personnel records of employees must predicate their suits on grounds outside of the FOIA. No

abuse of discretion was found in the school board's decision to release documents where the release of the information did not infringe on the common law

or constitutional privacy rights of the plaintiffs.

 

Eric Jackson v Eastern Michigan University, 215 Mich App 240; 544 NW2d 737 (1996).

 

Eastern Michigan University Foundation is primarily funded by Eastern Michigan University and, therefore, is a public body subject to FOIA.

 

Michigan Council of Trout Unlimited v Michigan Department of Military Affairs, 213 Mich App 203; 539 NW2d 745 (1995).

 

Notwithstanding the unique relationship between the Michigan National Guard and the Federal Government which is explicitly recognized by Michigan statutes,

the circuit court had jurisdiction to consider plaintiff's actions under the Michigan FOIA seeking to obtain documents in possession of the Michigan National

Guard.

 

While the state courts have jurisdiction, application of § 13(1)(d) of the Michigan FOIA encompasses federal regulations and the federal FOIA both of which

prohibit the release of the documents sought by plaintiff. Accordingly, plaintiff could not obtain the documents at issue.

 

Thomas v State Board of Law Examiners, 210 Mich App 279; 533 NW2d 3 (1995).

 

The State Board of Law Examiner's is an agent of the judiciary and, therefore, not a public body subject to the disclosure requirements of the FOIA.

 

Farrell v Detroit, 209 Mich App 7; 530 NW2d 105 (1995).

 

Computer records are public records that are subject to disclosure pursuant to the FOIA. A public body is required to provide public records in the form

requested, not just the information they contain. The providing of a computer printout of the information contained on a computer tape does not satisfy

a request for the computer tape itself.

 

Local 312 of the AFSCME, AFL-CIO v Detroit, 207 Mich App 472; 525 NW2d 487 (1994).

 

The public employment relations act (PERA) and the freedom of information act (FOIA) are not conflicting statutes such that the PERA would prevail over

the FOIA with the result that a person involved in a labor dispute would be precluded from obtaining public records under the FOIA.

 

The Legislature has clearly defined the class of persons entitled to seek disclosure of public records pursuant to the FOIA. There is no sound policy reason

for distinguishing between persons who are involved in litigation-type proceedings and those who are not.

 

The court is required to award plaintiff attorney fees and costs where the plaintiff prevails in a FOIA action.

 

In Re Subpoena Duces Tecum, on remand from the MI Supreme Court, 205 Mich App 700; 518 NW2d 522 (1994).

 

Section 13(1)(n) of the FOIA protects from disclosure communications within or between public bodies of an advisory nature that are other than purely factual

and are preliminary to a final agency determination of policy or action. The burden is on the public body to show, in each particular instance, that the

public interest in encouraging frank communications between officials and employees of the public body clearly outweighs the public interest in disclosure.

It is not adequate to show that the requested document falls within a general category of documents that may be protected.

 

Hyson v Department of Corrections, 205 Mich App 422; 521 NW2d 841 (1994).

 

Statements made by confidential witnesses relating to a major misconduct charge against a prison inmate may be withheld when requested pursuant to FOIA

because disclosure of the documents, even with the names of the witnesses deleted, would reveal their identities and jeopardize their personal safety within

the prison. In addition, the release would prejudice the public body's ability to maintain the physical security of the penal institution.

 

Mackey v Department of Corrections, 205 Mich App 330; 517 NW2d 303 (1994).

 

A prison record about a prison inmate is exempt from disclosure under the prison security exemption of the FOIA where the record is requested by an inmate

other than the one to whom the record pertains.

 

The Detroit News, Inc v Detroit, 204 Mich App 720; 516 NW2d 151 (1994).

 

Telephone bills paid by a public body constitute expense records of public officials and employees and are "public records" under the FOIA.

 

Quatrine v Mackinaw City Public Schools, 204 Mich App 342; 514 NW2d 254 (1994).

 

Public schools were not required to release records under FOIA where written parental consent for release of records was not provided.

 

Newark Morning Ledger Company v Saginaw County Sheriff, 204 Mich App 215; 514 NW2d 213 (1994).

 

Internal affairs investigation records of a law enforcement agency constitute personnel records which are exempt from disclosure, unless the public interest

in disclosure outweighs the public interest in nondisclosure. The mere location of a public record in a personnel file is not determinative as to its status

in a personnel record.

 

In determining what is a "personnel record" under the FOIA the court looked to the definition of that term in the Bullard-Plawecki Employee Right to Know

Act (ERKA). While the purpose of the FOIA and the ERKA are different, the Legislature's clearly expressed intent in the ERKA to prohibit access by an employee

to any internal investigations relating to that employee indicates an intent to not allow public access to such records.

 

Densmore v Department of Corrections, 203 Mich App 363; 512 NW2d 72 (1994).

 

A public body does not need to provide additional copies of records it has already provided unless the requester can demonstrate why the copy already provided

was not sufficient.

 

Booth Newspapers, Inc v University of Michigan Board of Regents, 444 Mich 211; 507 NW2d 422 (1993).

 

To exempt information under the FOIA, § 13(1)(a), information must be of "personal nature," and disclosure of that information must constitute "clearly

unwarranted" invasion of privacy. Travel expense records of members of a public body do not constitute "records of a personal nature."

 

The privacy exemption does not permit the withholding of information that conceivably could lead to the revelation of personal information. Therefore, a

public body may not withhold travel expense records because their disclosure might lead to information concerning the candidates interviewed by board members.

 

Walen v Department of Corrections, 443 Mich 240; 505 NW2d 519 (1993).

 

A prison disciplinary hearing falls within the definition of "contested case" and, therefore, pursuant to the FOIA, § 11(1), must be published and made

available to the public. The Department of Corrections satisfied the publication requirement by retaining the final orders and decisions from disciplinary

hearings in prisoners' files.

 

Patterson v Allegan County Sheriff, 199 Mich App 638; 502 NW2d 368 (1993)

 

A booking photograph of a county jail inmate kept in the files of a county sheriff is a public record under the FOIA; such photographs may not be withheld

from disclosure on the basis of the privacy exemption found in 13 (1) (a).

 

Yarbrough v Department of Corrections, 199 Mich App 180; 501 NW2d 207 (1993)

 

Records compiled in the course of an internal investigation into a sexual harassment are "investigating records compiled for law enforcement purposes" within

the meaning of said terms at § 13(1)(b) of the FOIA.

 

Hubka v Pennfield Township, 197 Mich App 117, 494 NW2d 800 (1992)

 

Letters sent by a township attorney to a township board that contain information obtained by the attorney from township employees under compulsion and promises

of confidentiality are protected from disclosure under the Freedom of Information Act by the attorney-client privilege. Likewise, the opinions, conclusions,

and recommendations of the attorney, based on the information, are protected.

 

Wilson v Eaton Rapids, 196 Mich App 671; 493 NW2d 433 (1992)

 

A public body’s attempt to reconcile a contractual obligation to maintain the confidentiality of a resignation agreement with its statutory obligation under

FOIA does not constitute arbitrary and capricious behavior.

 

A party prevails under FOIA, and is therefore entitled to an award of costs and reasonable attorney fees, only if the action was necessary to and had a

substantial causative effect on delivery or access to the documents.

 

Swickard v Wayne County Medical Examiner, 196 Mich App 98; 492 NW2d 497 (1992)

 

A party who prevails completely in an action asserting the right to inspect or receive a copy of a public record under the Freedom of Information Act is

entitled to reasonable attorney fees, costs, and disbursements. No time limit is imposed upon a prevailing party for requesting attorney fees.

 

Nicita v Detroit, 194 Mich App 657; 487 NW2d 814 (1992)

 

Section 13 (l) (j) of the FOIA does not exempt bids with respect to development projects from disclosure once a developer has been chosen.

 

Shellum v MESC, 194 Mich App 474; 487 NW2d 490 (1992)

 

Information held by MESC concerning the calculated unemployment insurance tax contribution rate of an employer is exempt from disclosure under 13 (1) (d)

of the FOIA because it utilizes information obtained from the employer which is protected by statute and administrative rule.

 

Swickard v Wayne County Medical Examiner, 438 Mich 536; 475 NW2d 304 (1991)

 

In making a determination whether a disclosure of requested information would constitute an invasion of privacy one looks to constitutional law and common

law as well as customs, mores, or ordinary views of the community.

 

The release of autopsy reports and toxicology test results are not unwarranted infringements on the right to privacy of either the deceased or the deceased’s

family. The autopsy report and toxicology tests are not within the doctor-patient privilege.

 

Michigan Tax Management Services Co v City of Warren, 437 Mich 506; 473 NW2d 263 (1991)

 

When a prevailing party in a FOIA action is awarded "reasonable" attorney fees, the trial court is obligated to make an independent determination with regard

to the amount of the fee. The standard utilized by an appellate court to review such a determination is abuse of discretion.

 

Favors v Department of Corrections, 192 Mich App 131; 480 NW2d 604 (1991)

 

The form used in determining whether a prisoner should be awarded disciplinary credits was exempt from disclosure under § 13(1)(n) of the FOIA in that it

covered other than purely factual materials, was advisory in nature and preliminary to final agency determination of policy or action. The public interest

in encouraging frank communications within the Department of Corrections (DOC) clearly outweighed the public interest in disclosure of worksheet forms.

 

The trial court failed to comply with the technical requirements of FOIA because it did not require the DOC to bear the burden of proving that a public

record was exempt. However, that failure did not require reversal of a grant of summary disposition for the DOC in inmate's action where the DOC clearly

reached the correct result.

 

Lepp v Cheboygan Area Schools, 190 Mich App 726; 476 NW2d 506 (1991)

 

Where the requested information pertains to the party making the request, it is unreasonable to refuse disclosure on the grounds of invasion of privacy.

 

Clerical-Technical Union of MSU v Board of Trustees of MSU, 190 Mich App 300; 475 NW2d 373 (1991)

 

The home addresses of donors to Michigan State University are information of a personal nature, the disclosure of which would constitute a clearly unwarranted

invasion of privacy.

 

The Detroit News, Inc v Detroit, 185 Mich App 296; 460 NW2d 312 (1990)

 

The minutes of a closed city council meeting, held in violation of Open meetings Act, are public records and are available upon request under the FOIA.

 

The oral opinions of an attorney are not public records subject to the FOIA and, therefore, cannot be used to justify a closed meeting of a public body.

 

Wayne County Prosecutor v Detroit, 185 Mich App 265; 460 NW2d 298 (1990)

 

For purposes of the FOIA, a county prosecutor is a person as defined in the Act. This allows him, in his official capacity, to request documents from public

bodies under the FOIA.

 

Traverse City Record Eagle v Traverse City Area Public Schools, 184 Mich App 609; 459 NW2d 28 (1990)

 

A tentative bargaining agreement between a school district and the union which represents its employees was held to be exempt from disclosure pursuant to

§ 13(1)(n) of the FOIA which exempts communication and notes within a public body or between public bodies which are advisory, nonfactual and preliminary

to a final decision. The public interest in encouraging frank communications between the employer and its employees, which leads to effective negotiations,

in this case outweighs the public interest in disclosure.

 

Hartzell v Mayville Community School District, 183 Mich App 782; 455 NW2d 411 (1990)

 

The FOIA requires disclosure of the fact that a requested document does not exist. A plaintiff in a FOIA action that is forced to file a lawsuit to ascertain

that a document does not exist is a prevailing party entitled to an award of costs and reasonable attorney fees.

 

Tallman v Cheboygan Area Schools, 183 Mich App 123; 454 NW2d 171 (1990)

 

A public body may charge a fee for providing a copy of a public record. Section 4 of the Act provides a method for determining the charge for records and

a public body is obligated to arrive at its fees pursuant to that section.

 

Booth Newspapers, Inc v Kalamazoo School District, 181 Mich App 752; 450 NW2d 286 (1989)

 

The trial court appropriately ordered the release of tenure charges and a settlement agreement concerning allegations of sexual misconduct against an unmarried

teacher in redacted form. The records were redacted to prevent the identity of the teacher and the students involved from being disclosed in order to protect

their privacy.

 

The FOIA confers discretion upon a court to award an appropriate portion of the reasonable attorney fees incurred by a party which has prevailed in part.

When a plaintiff prevails only as to a portion of the request, the award of fees should be fairly allocable to that portion.

 

Kincaid v Department of Corrections, 180 Mich App 176; 446 NW2d 604 (1989)

 

A public body bears the burden of proof in demonstrating a proper justification for the denial of a FOIA request.

 

A request for disclosure of information under the FOIA must describe the requested records sufficiently to enable the public body to find them; when a request

is denied because of an insufficient description, the requesting person may (1) rewrite the request with additional information, or (2) file suit in circuit

court where the sole issue would be the sufficiency of information to describe the records desired.

 

A FOIA request by an inmate which erroneously states the date of a guilty determination on a misconduct or the hearing date with respect to which records

are sought, reasonably and sufficiently describes the records sought. A public body acts in an arbitrary and capricious manner by repeatedly refusing to

look for a record so described.

 

Post-Newsweek Stations, Michigan, Inc v Detroit, 179 Mich App 331; 445 NW2d 529 (1989)

 

In claiming an exemption under FOIA, for interference with law enforcement proceedings, the burden of proof is on the public body claiming the exemption.

The exemption must be interpreted narrowly and the public body must separate exempt material from non-exempt and make non-exempt information available.

Exempt information must be described with particularity indicating how the information would interfere with law enforcement proceedings.

 

When analyzing claims of exemption under FOIA a trial court must make sure it receives a complete particularized justification for a denial of a request,

or hold in camera hearings to determine whether this justification exists. The court may allow counsel for the requesting party to examine, in camera,

under special agreement, the contested material.

 

Easley v University of Michigan, 178 Mich App 723; 444 NW2d 820 (1989)

 

A public body must have in its possession or control a copy of the requested document before it can be produced or before a court can order its production.

 

Payne v Grand Rapids Police Chief, 178 Mich App 193; 443 NW2d 481 (1989)

 

A record of a law enforcement investigation may be exempt from disclosure under the FOIA where disclosure would interfere with law enforcement proceedings.

However, the agency must demonstrate how disclosure of particular records or kinds of records would amount to interference on the basis of facts and not

merely conclusory statements which recite the language of the act.

 

A court can consider allowing plaintiff's counsel to have access to contested records in camera under special agreement as a means to resolve a FOIA lawsuit.

 

Booth Newspapers, Inc v Kent County Treasurer, 175 Mich App 523; 438 NW2d 317 (1989)

 

Tax records indicating the monthly or quarterly tax payments made by individual hotels and motels under a county hotel/motel tax do not fall within the

FOIA's privacy exemption.

 

Hagen v Department of Education, 431 Mich 118; 427 NW2d 879 (1988)

 

The decisions of the State Tenure Commission are matters of public record. When a private hearing is requested by a teacher as provided under the teacher

tenure act, the decision may be withheld during the administrative stage of the teacher's appeal. Once a final administrative decision is reached, the

decision may not be withheld from disclosure.

 

Oakland Press v Pontiac Stadium Building Authority, 173 Mich App 41; 433 NW2d 317 (1988)

 

The release of names and addresses of licensees doing business with a public body is not an unwarranted invasion of privacy.

 

Haskins v Oronoko Township Supervisor, 172 Mich App 73; 431 NW2d 210 (1988)

 

A trial court complies with the holding in The Evening News Ass'n v City of Troy, 417 Mich 481; 339 NW2d 421 (1983), where it conducts an in camera inspection

of the records sought and determines that certain records are exempt from disclosure under narrowly drawn statutory exemptions designed to protect the

identity of confidential informants.

 

Kubick v Child and Family Services of Michigan, 171 Mich App 304; 429 NW2d 881 (1988)

 

While there is no bright-line rule to determine what constitutes "primarily funded" to determine if a body is a "public body" as defined at § 2(b) of the

act, a private nonprofit corporation which receives less than half of its funding from government sources is not a public body which is primarily funded

by or through state or local authority. Accordingly, such corporation is not subject to the requirements of the Freedom of Information Act regarding the

disclosure of information by public bodies.

 

Kearney v Department of Mental Health, 168 Mich App 406; 425 NW2d 161 (1988)

 

The FOIA exempts from disclosure records exempted from disclosure by other statutory authority. Mental Health treatment records are exempt under the Mental

Health Code. However, treatment records may be disclosed where the holder of the record and the patient consent.

 

Persons requesting records under the FOIA are not entitled to free copies of the records. The holder of a public record may charge a fee for providing copies.

There is, however, a waiver of the first $20.00 for those who, by affidavit, can show an inability to pay because of indigency.

 

State Employees Association v Department of Management & Budget, 428 Mich 104; 404 NW2d 606 (1987)

 

The disclosure of the home addresses of state employees to a recognized employee organization does not constitute a clearly unwarranted invasion of privacy.

 

Residential Ratepayer Consortium v Public Service Commission, 168 Mich App 476; 425 NW2d 98 (1987)

 

An administrative agency does not waive its defenses in a circuit court action to compel disclosure of documents under FOIA because they were not raised

at the administrative level.

 

Jones v Wayne County Prosecutor’s Office, 165 Mich App 62; 418 NW2d 667 (1987)

 

A criminal defendant seeking documents pertaining to his criminal conviction must seek those records from the court pursuant to court rule, not from the

prosecutor pursuant to FOIA.

 

Detroit Free Press, Inc v Oakland County Sheriff, 164 Mich App 656; 418 NW2d 124 (1987)

 

Booking photographs of persons arrested, charged with felonies, and awaiting trial are not protected from release as an unwarranted invasion of personal

privacy.

 

Mithrandir v Department of Corrections, 164 Mich App 143; 416 NW2d 352 (1987)

 

Because of the special circumstances surrounding prison security and the confinement of prisoners, the Department of Corrections may set limits on a prisoner’s

right to examine nonexempt records.

 

Walloon Lake Water System, Inc v Melrose Township, 163 Mich App 726; 415 NW2d 292 (1987)

 

A public body does not escape liability under the FOIA merely because a capricious act on its part rendered the lawsuit moot. This is particularly true

when actions of the public body include direct violation of the FOIA, i.e., not giving a written explanation of the refusal as required and willfully disposing

of the material knowing that a suit is pending under the FOIA for disclosure.

 

Laracey v Financial Institutions Bureau, 163 Mich App 437; 414 NW2d 909 (1987)

 

Attorney who filed pro se action is not entitled to recover attorney fees in a FOIA lawsuit.

 

DeMaria Building Co, Inc v Department of Management and Budget, 159 Mich App 729; 407 NW2d 72 (1987)

 

The exemption found in 13 (1) (n) of the FOIA, for communications and notes within a public body or between public bodies, does not apply to an outside

consultant’s report to a public body.

 

In re Buchanan, 152 Mich App 706; 394 NW2d 78 (1986)

 

The common-law right of access to court records is not without limitation.

 

Health Central v Commissioner of Insurance, 152 Mich App 336; 393 NW2d 625 (1986)

 

HMO’s have no standing to raise common-law right of privacy claims. Such claims can only be asserted by individuals whose privacy has been invaded. The

right of privacy does not protect artificial entities.

 

Curry v Jackson Circuit Court, 151 Mich App 754; 391 NW2d 476 (1986)

 

The term “resides” as used in the FOIA, when applied to a prisoner, refers to the prisoner's intended domicile. Such a place may be the county where the

prisoner last lived before being sent to prison or the county where the prison is located. Factors such as the possibility of parole and how the prisoner

has ordered his personal business transactions will be considered relevant to corroboration of a prisoner’s stated intention relative to domicile.

 

Milford v Gilb, 148 Mich App 778; 384 NW2d 786 (1985)

 

Under the FOIA a public body may exempt from disclosure communications and notes within a public body or between public bodies of an advisory nature to

the extent that they cover other than purely factual materials. The public body bears the burden of proof that a statutory exception applies to the item

requested.

 

Paprocki v Jackson County Clerk, 142 Mich App 785; 371 NW2d 450 (1985)

 

Under 10(1) of FOIA, the term “resides,” when applied to a prisoner, refers to the place where the prisoner last lived before being sent to prison; “resides”

must be interpreted to mean a person’s legal residence or domicile at the time of his incarceration.

 

Cashel v Regents of the University of Michigan, 141 Mich App 541; 367 NW2d 841 (1985)

 

Where a person seeking to inspect records will take more than two weeks to complete inspection, she may be assessed labor costs incurred by public body

to supervise her inspection.

 

Soave v Michigan Department of Education, 139 Mich App 99; 360 NW2d 194 (1984)

 

Because federal agency regulations have the force and effect of federal statutory law, a state agency may properly withhold a record under FOIA, 13(1)(d)

if that record is exempt from disclosure under a federal agency regulation.

 

Capitol Information Association v Ann Arbor Police Department, 138 Mich App 655; 360 NW2d 262 (1984)

 

Plaintiff’s request, seeking “all correspondence” between local police department and “all federal law enforcement/investigative” agencies, was “absurdly

overboard” and failed to sufficiently identify specific records as required by FOIA, 3(1).

 

Hoffman v Bay City School District, 137 Mich App 333; 357 NW2d 686 (1984)

 

Where an attorney conducted an investigation into the business and finance practices of a school district and orally reported his opinion regarding the

investigation to the school board but did not share the actual documents, the investigative file itself is not a public record of the board.

 

Michigan State Employees Association v Department of Management and Budget, 135 Mich App 248; 353 NW2d 496 (1984)

 

The disclosure to a union of a list of the names and home addresses of public employees is not a clearly unwarranted invasion of the employees’ privacy;

such lists are, therefore, not exempt under FOIA, 13(1)(a).

 

Mullin v Detroit Police Department, 133 Mich App 46; 348 NW2d 708 (1984)

 

Defendant properly exempted a computer tape containing personal information on persons involved in traffic accidents. Disclosure of the tape would have

been a clearly unwarranted invasion of privacy.

 

Evening News Association v City of Troy; 417 Mich 481; 339 NW2d 421 (1983)

 

A general claim that records are involved in an ongoing criminal investigation and that their disclosure would “interfere with law enforcement proceedings”

is not sufficient to sustain an exemption under FOIA, § 13 (1)(b). A public body must indicate factually and in detail how a particular document or category

of documents satisfies the exemption; mere conclusory allegations are not sufficient.

 

Dawkins v Department of Civil Service, 130 Mich App 669; 344 NW2d 43 (1983)

 

If a plaintiff in a FOIA case prevails only in part, she may be awarded either all of her court costs and attorney fees or only that portion fairly allocable

to the successful portion of her case. The fact that the defendant’s refusal to disclose the records was made in good faith and was not arbitrary or capricious

has no bearing whatever on the plaintiff’s right to recover these costs.

 

Bechtel Power Corp v Department of Treasury, 128 Mich App 324; 340 NW2d 297 (1983)

 

Tax information may be protected against disclosure under 13 (1) (a) and 13(1)(d) of FOIA.

 

Pennington v Washtenaw County Sheriff, 125 Mich App 556; 336 NW2d 828 (1983)

 

Failure to respond to a request is treated as a final decision to deny the request. A plaintiff need only make a showing in circuit court that the request

was made and denied. The burden is on the defendant to show a viable defense. Nondisclosure based upon the privacy exemption of 13(1)(b)(iii) is limited

to intimate details of a highly personal nature.

 

Perlongo v Iron River TV, 122 Mich App 433; 332 NW2d 502 (1983)

 

A private non stock, nonprofit cable television corporation is not a “public body” for purposes of either the Open meetings Act or the Freedom of Information

Act, even though it is licensed, franchised, or otherwise regulated by the government.

 

Tobin v Michigan Civil Service Commission, 416 Mich 661; 331 NW2d 184 (1982)

 

The FOIA does not compel a public body to conceal information at the insistence of one who opposes its release.

 

Kestenbaum v Michigan State University, 414 Mich 510; 327 NW2d 783 (1982)

 

An equally divided supreme Court affirmed the lower court in holding that a list of names and addresses of students on a computer tape would appear to be

a public record, but the nature of the information is personal and falls within an enumerated exception. Public disclosure of the tape would constitute

a clearly unwarranted invasion of a person’s privacy.

 

Ballard v Department of Corrections, 122 Mich App 123; 332 NW2d 435 (1982)

 

A film made by the Department of Corrections showing a prisoner being forcibly removed from his prison cell is a public record and must be disclosed. Exemption

asserted by the DOC did not outweigh the public interest in disclosure.

 

International Union, UPGWA v Department of State Police, 118 Mich App 292; 324 NW2d 611 (1982), aff’d by equally divided court, 422 Mich 432 (1985)

 

The exemption of a list of names and home addresses of private security guards from disclosure to a union seeking that list for collective bargaining purposes

is not justified. The public purpose of collective bargaining outweighs the employees’ interest in the privacy of this information. However, the union

is ordered not to engage in further disclosure of the list for other unrelated purposes.

 

Cashel v Smith, 117 Mich App 405; 324 NW2d 336 (1982)

 

Depositions may sometimes be appropriate in FOIA cases, but they must be justified. The Legislature intended that the flow of information from public bodies

and persons should not be impeded by long court process.

 

Palladium Publishing Co v River Valley School District, 115 Mich App 490; 321 NW2d 705 (1982)

 

The name of student suspended by the action of a board of education will appear in the meeting minutes and is not information exempt from disclosure under

the FOIA.

 

Ridenour v Dearborn Board of Education, 111 Mich App 798; 314 NW2d 760 (1981)

 

Public disclosure of performance evaluation of school administrators is not an intrusion of privacy as defined by FOIA because people have a strong interest

in public education and because taxpayers are increasingly holding administrators accountable for expenditures of tax money.

 

Local 79, Service Employees International Union, AFL-CIO, Hospital Employees Division v Lapeer County General Hospital, 111 Mich App 441; 314 NW2d 648 (1981)

 

The proper forum in which to seek relief from a violation of the FOIA is the circuit court and not the Michigan Employment Relations Commission, notwithstanding

labor-related issues.

 

Schinzel v Wilkerson, 110 Mich App 600; 313 NW2d 167 (1981)

 

A plaintiff appearing in propria persona who prevails in an action commenced pursuant to the Freedom of Information Act is entitled to an award of his actual

expenditures, but is not entitled to an award of attorney fees.

 

Blue Cross/Blue Shield v Insurance Bureau, 104 Mich App 113; 304 NW2d 499 (1981)

 

Information may be revealed under FOIA despite claim of exemption. A decision to deny disclosure of exempt records is committed to discretion of agency

and should not be disturbed unless abuse of discretion is found. Trade secret exemption does not apply to information required by law or as a condition

of receiving a government contract, license or benefit.

 

Jordan v Martimucci, 101 Mich App 212; 300 NW2d 325 (1980)

 

A plaintiff who brings an action under the FOIA for punitive damages for delay in disclosure of requested information must demonstrate that he has received

the requested information as a result of a court-ordered disclosure and that the defendant acted arbitrarily and capriciously in failing to comply with

the disclosure request in a timely manner.

 

Nabkey v Kent Community Action Program, Inc., 99 Mich App 480; 298 NW2d 11 (1980).

 

No award of attorney fees is possible where a prevailing plaintiff under the FOIA is not represented by an attorney.

 

Bredemeier v Kentwood Board of Education, 95 Mich App 767; 291 NW2d 199 (1980)

 

The FOIA does not require that information be recorded by a public body, but if it is, it must be disclosed. Attorney fees, costs and disbursements are

awarded to prevailing party under FOIA. However, to prevail, a party must show at a minimum that bringing a court action was necessary and had a causative

effect on delivery of the information. Lack of court-ordered disclosure precludes an award of punitive damages under FOIA.

 

Penokie v Michigan Technological University, 93 Mich App 650; 287 NW2d 304 (1979)

 

Disclosure of the names and salaries of employees of the defendant university is not a “clearly unwarranted” invasion of personal privacy under FOIA.

 

Booth Newspapers, Inc v Regents of University of Michigan, 93 Mich App 100; 286 NW2d 55 (1979)

 

The written opinion of a public body’s attorney is exempt from disclosure under FOIA and may serve as a basis for closing a meeting under the OMA.

 

Williams v Martimucci, 88 Mich App 198; 276 NW2d 876 (1979)

 

Action of the manager of general office services at a state prison in denying inmate’s request for copies of certain documents in inmate’s file because

inmate did not pay the $3 fee for the cost of processing the request was not arbitrary and capricious, since the manager checked the institutional indigency

list for the month and found that the inmate’s name was not on it.

 

Alpena Title, Inc v Alpena County, 84 Mich App 308; 269 NW2d 578 (1978)

 

A county board of commissioners may charge a reasonable fee for access to and the copying of county tract index information in accordance with the statute

regarding fees for the inspection of such records.

 

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Related Content

 •

Open Meetings & Freedom of Information Acts Seminar - Powerpoint Presentation

PPT icon

 •

Freedom of Information Act (FOIA) MCL 15.231

•

Summary of Michigan's FOIA

•

Attorney General Opinions Relating to FOIA

•

Open Meetings Act MCL 15.261

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