[nfbmi-talk] Fw: Fw: more free technical ass foia

joe harcz Comcast joeharcz at comcast.net
Mon Mar 28 04:53:01 UTC 2011


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From: "joe harcz Comcast" <joeharcz at comcast.net>
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Subject: [nfbmi-talk] Fw: more free technical ass foia



----- Original Message ----- 
From: joe harcz Comcast
To: Jo Anne Pilarski
Cc: Geri. Taecken ; Luzenski, Sue (DLEG) ; margwolfe at usa.net ; John Scott 
MCB ; quasarano at michigan.gov ; mikecox at michigan.gov ; Richard Clay ; 
president.nfb.mi at gmail.com ; Joe Sibley MCBVI Pres. ; nfbmi-talk at nfbnet.org
Sent: Saturday, June 19, 2010 10:19 PM
Subject: more free technical ass foia


Official Board Correspondence



June 19, 2010



Paul Joseph Harcz, Jr.

1365 E. Mt. Morris Rd.

Mt. Morris, MI 48458

Joeharcz at comcast.net



Members Michigan Commission for the Blind

Jo Anne Pilarski, Chair

Michael Geno, Vice-Chair via Susan Luzinski, Administrative asst., Patrick 
D. Cannon, director MCB

Geraldine Taeckens, Commissioner

Margaret Wolfe, Commissioner

John Scott, Commissioner



All,



Please find a Freedom of Information Act case that is a part of your ongoing 
education on MCB’s obligations to follow the FOIA. I offer it free of charge 
in the public interest as technical assistance.



Sincerely,



Paul Joseph Harcz, Jr.



Cc: T. Quasarano, Michigan Attorney General’s Office

Cc: Mike Cox, Michigan Attorney General

Cc: National Federation of the Blind

Cc: Michigan Council of the Blind and Visually Impaired

Cc: Advocates for the Blind

Cc: Melvin Farmer, DELEG FOIA Officer





STATE OF MICHIGAN

COURT OF APPEALS

Table with 2 columns and 3 rowsJONI TAYLOR,

Plaintiff-Appellee/Cross-Appellant,  UNPUBLISHED

June 27, 2006

APPROVED FOR

PUBLICATION

August 29, 2006

9:15 a.m. v

LANSING BOARD OF WATER AND LIGHT, No. 265533

Ingham Circuit Court

LC No. 04-1505-AW Defendant-Appellant/Cross-

Appellee.

Table endBefore: Fort Hood, P.J., and Cavanagh and Servitto, JJ.

PER CURIAM.

Defendant appeals as of right an order granting, in part, summary 
disposition in

Plaintiff’s favor and ordering defendant to disclose certain documents 
pursuant to the Michigan

Freedom of Information Act (FOIA). Plaintiff cross appeals from that portion 
of the order

finding requested personnel records exempt from disclosure and denying their 
release. Because

we conclude that none of the documents requested by plaintiff were exempt 
from disclosure, we

affirm in part and reverse in part.

Plaintiff filed this action seeking an order compelling defendant, a public 
body, to

produce documents she requested under the Michigan Freedom of Information 
Act (“FOIA”). In

the request, plaintiff sought disclosure of, among other things, Virginia 
Cluley’s (and others’)

personnel files, e-mails between identified individuals on specific dates, 
correspondence between

named individuals on specific dates, and approval and expense reimbursement 
information for

named individuals on specific dates. Defendant denied the request in a 
September 29, 2004 letter

stating, “[i]t is apparent that the intended use of the requested documents 
is for the civil lawsuit

of Cluley v. Lansing Board of Water and Light and that you are acting as the 
Plaintiffs’ agent

and on their behalf in requesting the documents. Therefore, the requested 
items are exempt from

disclosure under FOIA.” Plaintiff thereafter filed an action against 
defendant, alleging defendant

improperly denied the request in violation of the FOIA.

Defendant moved for summary disposition in the trial court, arguing that at 
the time of

plaintiff’s FOIA request, defendant was involved in litigation with 
plaintiff’s best friend,

Virginia Cluley, who had told plaintiff about the lawsuit she had filed 
against defendant.

Defendant also pointed out that Mrs. Cluley’s counsel in that lawsuit was 
the same counsel who

prepared plaintiff’s FOIA request and who currently represents plaintiff, 
and argued that

-1-

plaintiff’s FOIA request was an attempt to circumvent the discovery rules 
governing the Cluley

action. Defendant claimed that it thus properly denied the request as 
seeking information exempt

from disclosure under MCL 15.243(1)(v). The trial court disagreed and, on 
September 26, 2005,

entered an order denying defendant’s motion for summary disposition and 
granting summary

disposition in favor of plaintiff1, with the exception of requested 
personnel records, which the

trial court deemed not subject to disclosure. Both parties now appeal the 
order.

This Court reviews de novo a trial court's ruling on a motion for summary 
disposition.

Corley v Detroit Bd of Ed, 470 Mich 274, 277; 681 NW2d 342 (2004). In 
considering a motion

pursuant to MCR 2.116(C)(10), a court considers affidavits, pleadings, 
depositions, admissions

and other documentary evidence submitted by the parties in a light most 
favorable to the

nonmoving party. Id. If the proffered evidence fails to establish a genuine 
issue of material fact,

the moving party is entitled to judgment as a matter of law. Maiden v 
Rozwood, 461 Mich 109,

120; 597 NW2d 817 (1999). Issues concerning the interpretation of a statute 
are questions of law

that we also review de novo. Dressel v Ameribank, 468 Mich 557, 561; 664 
NW2d 151 (2003).

Defendant argues on appeal that the requested documents are in fact exempt 
from

disclosure under MCL 15.243(1)(v). Defendant contends that in denying its 
motion for summary

disposition and granting summary disposition in favor of plaintiff, the 
trial court construed MCL

15.243(1)(v) too narrowly and in a manner contrary to legislative intent. 
Plaintiff, in her cross-

appeal, contends that while the trial court appropriately ruled in her 
favor, it also erred in

excluding the requested employee personnel files, given that defendant did 
not argue the same

were exempt and there is no specific FOIA exemption for personnel records.

The purpose of the FOIA is to provide all persons, except those persons 
incarcerated in

state or local correctional facilities, with “full and complete information 
regarding the affairs of

government and the official acts of those who represent them as public 
officials and public

employees. . . The people shall be informed so that they may fully 
participate in the democratic

process.” MCL 15.231(2). The FOIA mandates a policy of full disclosure, 
Stone Street Capital,

Inc v Bureau of State Lottery, 263 Mich App 683, 687; 689 NW2d 541 (2004), 
and a public body

must disclose all public records that are not specifically exempt under the 
Act upon written

request. MCL 15.233(1); Scharret v City of Berkley, 249 Mich App 405, 411; 
642 NW2d 685

(2002).

Pursuant to MCL 15.243 (1), a public body may exempt the following from 
disclosure:

(a) Information of a personal nature if public disclosure of the information 
would constitute a

clearly unwarranted invasion of an individual's privacy.

. . .

(d) Records or information specifically described and exempted from 
disclosure by statute.

. . . (v) Records or information relating to a civil action in which the 
requesting party and the public

body are parties.  Although not specified on the record, summary disposition 
was presumably granted in

plaintiff’s favor pursuant to MCR 2.116(I)(2).

-2-

The exemptions must be narrowly construed and the party seeking to invoke 
the exemption must

prove that nondisclosure is in accord with the intent of the Legislature. 
City of Warren v City of

Detroit, 261 Mich App 165, 169-170; 680 NW2d 57 (2004). If a request for 
information held by

a public body falls within an exemption, the decision to release the 
information becomes

discretionary. Bradley v Saranac Community Schools Bd of Ed, 455 Mich 285, 
292-293; 565

NW2d 650 (1997). Whether requested information fits within an exemption from 
disclosure

under FOIA is mixed question of fact and law and, on appeal, the trial 
court's factual

determinations are reviewed for clear error, but its legal conclusions are 
reviewed de novo. Stone

Street Capital, Inc, supra.

Case law is clear that initial as well as future uses of information 
requested under the

Freedom of Information Act are irrelevant in determining whether the 
information falls within

exemption, as is the identity of the person seeking the information. See 
e.g., Clerical-Technical

Union of Michigan State University v Board of Trustees of Michigan State 
University, 190 Mich

App 300; 475 NW2d 373, (1991); State Employees Ass'n v Department of 
Management and

Budget, 428 Mich 104; 404 NW2d 606 (1987). Thus, the public body asserting 
the exemption in

MCL 15.243(1)(v) must prove that it is a party to a civil action with the 
requesting party.

Otherwise, this Court's ruling in Central Michigan Univ 
Supervisory-Technical Ass'n, MEA/NEA

v Bd of Trustees of Central Michigan Univ, 223 Mich App 727, 730; 567 NW2d 
696 (1997)

(holding that the FOIA does not conflict with the court rules governing 
discovery, nor does it

supplement or displace them) is applicable, and the public body is afforded 
no exemption from

disclosure based solely on the status of one of the parties as litigants.

A plain reading of MCL 15.243(1)(v) would require a conclusion that the 
trial court

correctly ruled the requested documents were non-exempt. The plain language 
of the exemption

cited by defendant applies only to information relating to a civil action in 
which both the

requesting party and the public body are parties. “Party” is not defined in 
the statute itself, but is

defined in Black's Law Dictionary (6th ed.), p. 775, as: "[t]hose by or 
against whom a legal suit

is brought. . .”2 Plaintiff in this matter is the admitted best friend of 
Ms. Cluley, a party involved

in a lawsuit against defendant. However, there is no dispute plaintiff was 
not and is not a party to

the Cluley action. MCL 15.243(1)(v) thus serves as no basis for exempting 
the records requested

by plaintiff.

This Court is well aware a literal interpretation of statutory language is 
disfavored when

that interpretation would lead to an absurd result. See, Houghton Lake Area 
Tourism &

Convention Bureau v Wood, 255 Mich App 127, 142-143; 662 NW2d 758 (2003). 
This Court is

also well aware that a literal application of statutory language leads to an 
absurd result in this

matter. Plaintiff testified that when requesting the documents at issue she 
was acting as Ms.

Cluley’s friend, and the attorney who prepared the FOIA request for 
plaintiff is none other than

Ms. Cluley’s trial counsel in the Cluley litigation. Moreover, plaintiff 
acknowledged that Ms.

Cluley was present during at least one discussion concerning the FOIA 
request, and plaintiff

frequently testified to a lack of knowledge or memory as to why she 
requested specific

documents. It could be inferred, then, that plaintiff was merely an 
instrument through which Ms.

Cluley sought to gain information concerning the Cluley lawsuit. The literal 
application of the

2 This Court may examine dictionary definitions if a statute does not 
expressly define its terms.

People v Rutledge, 250 Mich App 1, 6; 645 NW2d 333 (2002).

-3-

statute, then, would allow a party to obtain information by proxy that he or 
she would otherwise

not be entitled to receive through the FOIA, thereby easily avoiding the 
exemption.

Nevertheless, our Supreme Court has determined that the “absurd result” rule 
applies

only when statutes are ambiguous See, Gilbert v Second Injury Fund, 463 Mich 
866, 867; 616

NW2d 161 (2000); People v McIntire, 461 Mich 147, 155-156; 599 NW2d 102 
(1999) (If the

language is plain and unambiguous, we may not depart from a literal 
construction even to avoid

an absurd or unjust result, lest we engage in impermissible judicial 
lawmaking); Koontz v

Ameritech Services, Inc, 466 Mich 304, 312; 645 NW2d 34 (2002) (“Because the 
proper role of

the judiciary is to interpret and not write the law, courts simply lack 
authority to venture beyond

the unambiguous text of a statute”).

In our view, there is no ambiguity in the statute that would require 
judicial construction.

As FOIA exemptions are to be narrowly construed (See City of Warren v City 
of Detroit, supra)

and the term “party” has a distinct and precise legal definition, the 
Legislature is presumed to

have intended the meaning it plainly expressed. Pohutski v City of Allen 
Park, 465 Mich 675,

683, 641 NW2d 219 (2002). Absent an ambiguity in the statute, we must forgo 
judicial

construction and an examination of legislative history. Luttrell v Dep't of 
Corrections, 421 Mich

93, 101; 365 NW2d 74 (1984).

While defendant may disagree with the restrictive language of the exemption 
at issue and

the result of its application, our legislature has elected to make it so. 
And however distasteful the

result in this case may be to this Court, it does not give us license to 
avoid applying the

unambiguous language of the statute. We thus affirm the trial court’s order 
that the documents

are non-exempt from disclosure under FOIA.

Addressing plaintiff’s cross appeal, this Court notes that in denying 
plaintiff requested

personnel records, the trial court simply stated “I think there are separate 
rules on personnel

files.” No reference was made, however to any specific rule the court relied 
upon in finding the

personnel records exempt form disclosure and this Court was unable to locate 
any provision in

FOIA specifically exempting personnel records, other than those of law 
enforcement, from

disclosure.

If the trial court were relying upon MCL 15.243 (1)(a), the exemption 
relating to

information of a personal nature, such reliance would be misplaced. This 
Court has previously

held that personnel documents of public school teacher and principals, which 
contained

performance appraisals, disciplinary actions, and complaints relating to 
these employees'

accomplishments in their public jobs, did not contain information of 
embarrassing, intimate,

private, or confidential nature, and, thus, were not "personal in nature" 
and exempt from

disclosure under privacy exemption under Freedom of Information Act (FOIA). 
See, Bradley v

Saranac Community Schools Bd of Educ, 455 Mich 285; 565 NW2d 650 (1997). 
This Court sees

no distinction, and defendant has articulated none, between the personnel 
files of public school

employees and other public body employees such as those whose records were 
requested. As a

result, there was no basis to find the personnel records exempt from 
disclosure and that portion

of the trial court’s ruling is therefore reversed.

-4-

Affirmed in part and reversed in part.

/s/ Karen M. Fort Hood

/s/ Mark J. Cavanagh

/s/ Deborah A. Servitto

-5-


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